Page:The English Reports v1 1900.pdf/380

Lothian; and appellant received several other letters subscribed as above, ordering a copy of the agreement to be sent them, and afterwards acknowledging the receipt thereof, and assuring appellant no money should be wanting on their parts to carry the new undertaking to perfection; and the fishery on the west not answering expectation, sent directions to bring in that stock to the other undertaking, and gave particular directions how to apply and dispose of it; and respondent himself, by a letter dated at St. Ives, 7th January, 1709, wished appellant a good journey into the North, and Inter alia, mentioned that Denn promised to pay Stewart 300l. at Christmas, and if he will not pay we must drop him: And appellant being still encouraged by letters, and never hearing of any divisions or controversies between the partners in London, went on in managing the fishery (in conjunction with James Gordon and the other new partners) on their and his own part, and from time to time transmitted them accounts of his management in catching, buying, and curing great quantities of salmon, cod and herrings, and sending them to foreign markets, with the names of the ships, and to whom consigned, not doubting but the several letters so sent to him were a sufficient con-[444]-firmation of the agreement made in Scotland; and the fishing season being almost over, appellant, 30th March, 1710, made up a general account relating to the fishery on the western coasts, and sent it to respondent, Stewart, and Denn, and had before that time paid, expended, and ought to be allowed on that fishery 1897l. besides 800l. paid by him towards the fishery on the north coast, and in February 1710/11, came to London, and brought the accounts of the western fishery, and also an account of his payments, &c. to the northern fishery with him, whereby it appeared he had disbursed, on account of both fisheries, above 6000l. besides his salary and commission, and that there was a great loss; and that respondent, 5th October, 1711, (and never before) declared his dislike, and that he would not be further concerned therein, and exhibited his bill in Chancery against Stewart, Denn, and appellant, suggesting a fraud in drawing him into those agreements, and advancing of several sums of money; and charging that he had demanded an account of the fishing transactions, and was denied it, and informed that the 1000l. advanced by him was not laid out on the fishing trade; and that appellant never entered upon, or carried on any fishery in Scotland; and that he, respondent, never was privy to the agreement in September, 1709, and therefore ought not to be bound thereby; and that the whole was a fraud, and carried on purposely to make a bubble of respondent; and prayed an account, and to be paid his 1000l. with interest and costs; and that appellant, 8th January, 1711, answered and denied all these allegations, and annexed a schedule of all his payments and disbursements; and Stewart and Denn likewise by their answers denied the allegations; and several witnesses were examined, and the cause heard before the Lord Chancellor, 28th February, 1712, who decreed Stewart and appellant to account with respondent for all sums of money paid by him to them, or either of them, in pursuance of the articles of 30th April, 1709, or of the agreement, 5th May, 1709, or any other subsequent agreement touching the partnership between respondent, Stewart and appellant, and between them and any other joint-adventurers with them in North Britain, and Stewart and appellant to pay what should thereupon appear due to respondent, with interest from the time respondent paid it, and respondent to be absolutely discharged from the articles, agreements and partnerships, and Stewart and appellant to indemnify [445] him from all costs and damages whatsoever, touching the articles, or any partnership in respect thereof, and to pay costs of suit: And appellant complained that he was aggrieved by this decree, because it was founded on a supposition of fraud; that there never was any real and fair intention in appellant, and Stewart, to carry on the partnership, according to the articles or subsequent agreements of the 5th May, 1709; and that respondent was fraudulently drawn in by them to the said articles and subsequent agreements, whereas there was no proof in the cause to warrant such a supposition; and that appellant's whole conduct in the business, and the manner of his coming in, shewed that he meant and acted honestly, and that a loss which happened arose meerly from misfortunes, and not from fault, and that it would be of mischievous consequence to set aside agreements long acquiesced under, upon bare suspicions of fraud without proof. (P. King. N. Lechmere.)