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Louis, nor does their letter-book show any copy of the letter to Sanford, although many letters both to and from the firm have been produced in evidence.
In the original answer, filed in June, 1861, by the executors of Sanford, and sworn to by them June 15, 1861, in the suit brought in the state court of Minnesota, by Chouteau and the executors of Sarry and Sire, in February, 1861, for a sale of the Minnesota lands to pay the debts of the firm, alleged to have amounted on May 1, 1860, to $212,000, the claim of the executors of Sanford was stated to be “that upon the retirement of the said John F. A. Sanford from the firm mentioned in the complaint, he became a partner in another firm under the same name, in the city of New York, together with the said Pierre Chouteau, Jr., in which the said Sarpy and said Sire had been theretofore partners, and in which they thereupon ceased to be partners, and said John F. A. Sanford succeeded to their interests therein, and said Sarpy and Sire succeeded to his interest in said St. Louis firm, excepting his interest in said Minnesota lands, and that, by agreement between all the parties at the time of such exchange of interests, and in consideration thereof, said John F. A. Sanford and his interest in the Minnesota lands were to be exonerated and free from all liability for the debts and liabilities of said St. Louis firm or to any of his copartners therein, and to be indemnified and saved harmless in the premises.” This allegation was explicitly denied in the reply to the answer, which reply was put in in August, 1861. In an amended answer put in by the executors of Sanford in September, 1861, not sworn to by them, but verified by their attorney in the suit, the above statement in the original answer was repeated, and these words were added: "And that the said John F. A. Sanford was to have and to hold in fee-simple, as tenant in common, seventeen and one-third one-hundredth (173-100) parts of said land to his own sole use, freed from any claim for debts of said copartnership, or any liability for contribution in favor of any of the other partners.
The complaint in the suit in the Minnesota state court, after set. ting forth the facts about the St. Louis copartnership, and its dissolution December 31, 1852, avers that during its continuance it had, at St. Paul, Minnesota, an outpost or trading-house, to which it supplied merchandise; that the business at St. Paul was conducted under the name of the "Minnesota*Outfit,” debits and credits being made to it, and it was a part of the copartnership business; that the copartnership, during its continuance, acquired lands in Minnesota, described in schedules to the complaint, and they were a part of its partnership assets, the title to them being taken in the name of Pierre Chouteau, Jr., in fee, he holding them in trust for said copartners; that at its dissolution said firm had outstanding debts or liabilities to the amount of $438,176.28; that that amount had since been reduced, and, on a full and final settlement and accounting between Chouteau and the executors of Sarpy and Sire, on May 1, 1860, it was found that the debts and liabilities of said firm then owing and unpaid, and for which said copartners, or their legal representatives, were liable, amounted to $212,000, which sum was still due and owing by them and unpaid; that the assets of said firm at its dissolution consisted of real estate and divers accounts and notes, which were of little or no value; that said real estate was the only assets belonging to said copartners with which to pay said indebtedness; that, to discharge the same, Chouteau had paid 48-100ths of said $212,000, the executors of Sarpy 174-100ths thereof, and the executors of Sire 173-100ths thereof; that neither Sanford nor his executors had paid any part of his share of said $212,000; that their neglect to pay was a violation of the terms of the copartnership agreement; and that the remaining indebtedness of the firm could not be paid without a sale of said lands and the application of the proceeds of the sale to such purpose. The prayer of the complaint was that the amount of the unpaid debts and the assets of said firm be ascertained, and a receiver of its notes, accounts, and choses in action be appointed, with power to sell the same, and that said real estate be sold and the proceeds be applied to pay the debts due and owing by said firm.
The events which immediately preceded the bringing of that suit in the state court of Minnesota were these: Pierre Chouteau, Jr., had become totally blind, and his business and correspondence were conducted by his son-in-law, William Maffitt. On the sixth of Aug. ust, 1860, Maffitt wrote from St. Louis to Gebhard at New York, a letter, which is not produced, but in which, judging from Gebhard's reply to it, he appears to have informed Gebhard that there was a large indebtedness due from the firm, and to have referred to the necessity of taking steps for its payment, in reference to Sanford's proportion of it. Gebhard's reply to Maffitt, under date of New York, September 15, 1860, was as follows:
“Yours of the 6th ult. has remained unanswered, in order that I might consult with my co-executor, with whom I have just had an interview. We are both much surprised to hear for the first time of the large indebtedness to which you allude, as we understood from Mr. Chouteau's agent, at the time of our settlement in December last, that the Minnesota property would probably prove very valuable, sufficiently so to return to us as executors a handsome sum, and were not advised of any charge against the property which we should have to pay. Before determining as to our course it is necessary that we should be fully advised of the nature of Mr. Chouteau's claim, and you will please send us a copy of the accounts of firm No. 2 and firm No. 3, to which you allude, and we will examine the same with the vouchers. Please also advise us as to the situation and present value of the Minnesota property, to which you allude, and be kind enough to furnish us a copy of the undertaking or agreement with Mr. Sanford, made on the occasion of his retirement from firm No. 2, to which reference is made in the release from Mr. Chouteau to us, dated December, 1859.”
To this letter Maffitt replied by a letter to Gebhard, dated St. Louis, October 4, 1860, as follows:
“I was absent when your letter of the 15th ult. was received, or it would otherwise have had earlier attention. I do not see that the opinion said to have been expressed by Mr. Chouteau's agent in regard to the value of the Minnesota property authorized the inference that there was no charge against it. But however this may be, Mr. Thompson, at least, was well informed as to its situation. In a letter written October 6, 1859, I mentioned that • this interest (the Minnesota) had been retained by Mr. Sanford in the transfer between him, Mr. Sarpy, and Mr. Sire, but embarrassed by a very heavy debt.' I don't, however, consider this important. The accounts you ask for are entirely too voluminous*to furnish within any reasonable time. They embrace the largest part of the business of the house during a long period. The books, however, are open to your inspection, and we will afford you every facility to enable you to make a satisfactory examination of them. There was no written agreement that we know of on Mr. Sanford's withdrawal from the house. From the balance-sheet made in December, 1852, it seems that the various outfits in the upper Mississippi were indebted, in the aggregate, $438,176.28. As it was impossible, even approximately, to determine the value of this interest, for its assets consisted principally of debts which it was very questionable at the time would ever be realized, it was concluded by the parties that Mr. Sanford should retain his interest therein. From that time it required constant negotiations and great attention to save anything. Finally, Mr. Chouteau, by his own personal exertions, in 1855, succeeded in obtaining a settlement, the result of which was what we now have in the Minnesota property. Mr. Chouteau's action in this matter is by no means voluntary. It has been forced upon him chiefly by the settlement recently had with the executors of his late partners. It was not to be expected that they would do more than pay their proportion of the amount chargeable to their property. They were all, however, jointly liable for the whole, and in the event of Mr. Sanford's estate being unable to pay its proportion, they would have been liable for their respective proportion of its (the estate's) share of the indebtedness. It became, therefore, incumbent on Mr. Chouteau, as surviving partner, to take the steps he now proposes, or to assume the part due from Mr. Sanford's estate. Such an alternative is out of the question, as the debt is already very large and constantly increasing by the interest. As regards the situation of the property at present, it is managed by Mr. Prince and Mr. Sibley. No income whatever is derived from it, and very little expense incurred beyond the salaries of the agents. Hoping to hear soon what your determination is in relation to this matter, I remain,” etc.
The suit in the state court of Minnesota was then brought, as stated. Before answering the complaint Gebhard wrote to his coexecutor, Mr. Barlow, a letter dated New York, June 3, 1861, which says:
"It seems to me quite important, in answering the bill filed against us, (1) To insist on the production of the original papers executed at the time Sanford retired from the St. Louis firm. (2) To allege that Sanford sold out his. interest in the St. Louis firm, with all its liabilities, to Sarpy and Sire, and assumed their positions in the New York firm, reserving for himself, individually, his share of the St. Paul property, free of all liabilities, which was simply left in Mr. Chouteau's name, partly so as not to complicate matters, as well as from the implicit trust that Sanford had in Mr. Chouteau, that. everything would be properly accounted for. (3) Allege that in the transfer each party agreed to assume the outstanding liabilities. (4) When Mr. Chouteau settled with the executors of Mr. Sanford, he distinctly stated that the release covered all debts of the deceased, except a few trifling ones in New York, which the executors have paid or settled for; and that Mr. Sanford's interest in the St. Paul property would be one of the assets that would revert to the estate and to the minor children,"
The suit in the state court of Minnesota proceeded no further, but was discontinued. C. P. Chouteau states that the reason for this was that the executors of Sanford renewed propositions of settlement.
In February, 1869, Mr. Barlow, as surviving executor of Sanford, brought a suit in the supreme court of New York against the executors of Pierre Chouteau, Jr. The complaint set forth the facts as to the firm and its business and the interests of its partners and its dissolution, by consent, in 1852, and averred that the firm, during its continuance, purchased with its funds lands in Minnesota, described in a schedule to the complaint, the legal title to which was, for convenience, taken in the name of Chouteau; that Chouteau and his executors had sold portions of the lands, and other portions remained unsold and undivided; that no account respecting the said lands had been adjusted with Sanford or his executors; and that the plaintiff was entitled to his due share of the proceeds of the lands sold, and his due proportion of the lands unsold, being the proportion thereof in which Sanford was interested in the firm. The complaint prayed for an account of the lands and of the proceeds of those sold, and for *payment and conveyance accordingly, and was verified by Mr. Barlow. It did not refer to any agreement as having been made between Sanford and the other partners at the time of the dissolution. The answer, verified by C. P. Chouteau, referred to the “Minnesota Outfit” as a business carried on for the benefit of the firm, and alleged that, when it was dissolved, its assets consisted of notes and accounts and of the Minnesota lands; that its liabilities were then $438,176.28, and, on the first of May, 1860, had been reduced to $212,724.23, which amount was advanced by Pierre Chouteau, Jr., out of his individual moneys; and that the estate of Sanford was liable for its proportion thereof. It denied that the plaintiff was entitled to any of the proceeds of the lands sold, or to any part of those unsold, and prayed for an account between the parties as to the business of the firm, and that the amount owing by the plaintiff to the defendants, on account of the losses and indebtedness of the firm or otherwise, might be established and adjusted against the plaintiff. In March, 1872, a stipulation was signed by the plaintiff's attorney, agreeing to admit at the trial that the debts of the firm at the dissolution were as stated in the answer; that Pierre Chouteau, Jr., had discharged all of them with his individual moneys, and became a creditor for that amount; that before May 1, 1860, the indebtedness of the firm to him had been, by sales of the lands and from assets, reduced to $212,724.23; and that neither Sanford or his executors had contributed anything thereto; but the plaintiff was not to be precluded from requiring an account of all the assets of the firm applicable to the payment of its indebtedness, and the defendants agreed to furnish it at the trial. In September, 1872, the suit was referred to a referee for trial, and there were some meetings before him. Without any conclusion, the suit was discontinued March 30, 1876, shortly after the present suit was begun.
This history of the record evidence furnished by the correspondence and the pleadings in the suits has been given in order to show what allegations have been made in deliberate form as to any special agreement between the parties at the time the firm was dissolved. It is not unlikely that letters may have passed between the firm and Sanford at that time, which may have expressed, as stated by Maffitt in his letter of October 4, 1860, the conclusion of the members of the firm that Sanford should "retain his interest" in the "various outfits in the upper Mississippi,” because it was impossible, even approximately, to determine the value" of that interest, as "its assets consisted principally of debts which it was very questionable at the time would ever be realized." The language of the letters would be very material in determining the actual agreement. A slight difference in wording might change the meaning essentially. Maffitt asserted, in his letter to Gebhard of October 4, 1860, that the Minnesota interest, retained by Sanford at the dissolution, was "embarassed by a very heavy debt.” The letters, or copies of them, were vital to the claim of Sanford's executors, after Gebhard received this letter from Maffitt. Yet we find Gebhard, in his letter of June 3, 1861, to Mr. Barlow, after the suit foreshadowed by Maffitt had been brought, making suggestions as to matters for the answer and as to requiring the production of papers, which are far from implying that Sanford's executors had letters in their possession which would show the agreement now insisted on. They having the letters, if the letters would show such agreement, we should expect copies of them to be set forth in the answer in the suit in the state court of Minnesota, as a copy was set forth, in both the original and amended answers in that suit, of the release of December 1, 1859, executed by Chouteau to the executors of Sanford, on the settlement then made between them of the affairs of the New York firms in which Chouteau and Sanford were partners. Both of the answers refer to an agreement to the effect claimed, but do not state that it was in writing, and set forth only its general purport. Mr. Barlow states that he examined the leiters carefully at the time the original answer in the suit in the state court of Minnesota was drawn, and that he thinks they were in the possession of his counsel, Mr. Platt, when the amended answer in that suit
was drawn. The subject would naturally be revived when the suit in New York was brought, in 1869, yet we do not find in the com.
plaint in that suit any mention of the agreement claimed to have been evidenced by the letters. The establishing in that suit, by the testimony of Mr. Barlow, of the agreement now set up, would have dis. posed of the controversy. Can more weight be given to his recollec- . tion 7 years later, as to the contents of letters which he had last seen