Page:Federal Reporter, 1st Series, Volume 8.djvu/495

 EIOB V. MABTIN. 481 �Smith, the owner of the cattle, that after Eice Jiad negotiated for the cattle, in the fall of 1874, he came to his place with Norton and Mar- tin, in January, 1875, and that Norton took him aside and told him that Eice was in tronble about some sheep, and that he (Norton) wonld take the cattle in his own name, with the consent of Eice, and that after this he eonsidered Eice was not in the trade. Deposi- tion of Smith, page 5. Nor, except as to some cattle paid for in 1874, does it appear that Eice ever had anything to do with the cat- tle or ranch after January, 1876. His conduct at this time is all in corroboration of the truth of Smith's statement; and from thence on, until Jane 2, 1879, when he serves his notice on defendants, claim- ing a half interest, he does nothing which indieates that he is a joint owner, or believed he was. He does not act like an owner. It is not probable that Norton would take the occasion when Eice was there to tell Smith what he did, unless Eice had, in fact, given his consent. It may bc readily inferred, from the deposition of Smith, that Norton, Eice, and Martin came to Smith's ranch for the purpose of getting the consent of Smith to the wifchdrawal of Eice, and that what was said by Norton to Smith was but a continuance of somo former conversation. This testimony of Smith touching any con- versation with Norton out of the hearing of Eice, is objected to ; but it would be admissible upon the point whether Eice did or did not assent to Norton taking the cattle, as a oiroumstance tending to show that he did assent. But, be this as it may, Eice 's conduct at the time of the final delivery is a confirmation of the truth of the testi- mony that he had given up his interest in the property. His inquiry of Smith whether Norton had said anything to him about taking him back, and his yielding possession and control of everything to Norton and Martin & Clark, and asserting no claim, are all circumstances hard to explain on any theory of ownership in Eice. Mr. Dwelly may be interested in, this suit, but it is not easy to see how. Eice, as a partner of Norton, it would seem, can have no remedy for Norton's dealings with the partnership property, except against him, in the ab- sence of fraud or collusion, �Dwelly's testimony, corroborated by the other circumstances, and by the testimony of Welsh, ought to outweigh that of Eice. Dwelly testifies that Eice did tell him, in his butcher shop at Eeno, that he had been obliged to give up the Tom Smith trade. Welsh testifies that he told him the same thing, but could get the cattle back if hc could get money to work with. v.8,no.7— SI ��� �