Snyder v. Harrington

delivered the opinion of the court.

1. The testimony in this case indicates a determined and systematic attempt on the part of defendant Harrington to defraud and rob his deceased partner’s estate. The venerable judge of the court below used this language in his findings of fact:

“There are some circumstances attending the transfer of the above-described property to the defendant Ehwegen that tend to support the averments of conspiracy and fraud set out in plaintiff’s complaint, but not sufficient to overcome the positive and sworn evidence of both the defendants, and no conspiracy of fraud is found.”

We are of the opinion that there is sufficient circumstantial evidence to overcome the sworn testimony of the defendants, and, therefore that fraud and conspiracy is proved.

2: As to Harrington, his denial of the partnership, refusal to account, under the pretext that his books had been stolen, and his whole conduct, satisfy us that he is utterly unworthy of credit. It seems absolutely improbable that he would enter into a contract to convey, entirely, *546property worth $3,200 for the sum of $600. Upon its face the transaction is unreasonable. The assertion that he was without money to meet the payments and went to Ehwegen on that account does not comport with a previous affidavit made by him, that the profits of the business were probably $10 per day; and his story about the loss or theft of his books, and his consequent inability to give an accurate account of the condition of his business, does not impress the court with its truth. Whether Ehwegen advanced the $600 or not, we are convinced that he took the assignment in trust for Harrington. The $600, which he claims to have advanced, was not paid to the Northern Brewing Company, but to Harrington, and by him to the brewery company. The original assignment made no mention of Ehwegen, as assignee, which indicates that nothing of the kind was contemplated by Harrington when he paid the money, and that the subsequent interlineation of Ehwegen’s name was probably an afterthought. The bar remained in Harrington’s, possession and control, and, indeed, there was no legal way for Ehwegen to get control of it, except to seize it under the provision of his lease, which he waived by agreeing that Harrington should use it so long as he purchased Ehwegen’s beer. Harrington, being a mere intruder upon the partnership estate and premises, could make no contract giving Ehwegen title or right of possession, and every advantage or waiver secured by him, by his exercise of control over the estate cle son tort, inured to the benefit of the estate and not to him. We cannot, in view of these and other circumstances indicating fraudulent collusion between Harrington and Ehwegen, permit the estate or • he widow of the defendant to be juggled out of this entire property. We go far enough when we permit Ehwegen to have a lien upon it for the $600, which he says he advanced, and which possibly may have preserved the *547property from legitímate seizure, though technically only $401 and interest were actually due.

In addition to this, as to Harrington, we think the evidence indicates that he has consumed a large amount of the firm’s assets and profits of the business, but, the amount being indefinite, we fix it at a minimum of $700, and require him to pay that sum to the executrix. The lease having expired since this suit was begun, we make no order as to that, except that plaintiff be allowed free access to the premises for 20 days for the purpose of removing the bar and fixtures.

Judgment reversed. Reversed.