Peck v. Cavagna.

then the question upon whom rests the burden of proof becomes important; otherwise it does not.

It is also to be observed that whatever may have been the view entertained by the plaintiff at the time of the filing of this action as to the soundness of mind of Bartholomew Cavagna, the evidence has placed the fact beyond all doubt that his mind was not unsound, and that he did not have the slightest taint of imbecility. The contention now is, that while his mind was sound, it was not sufficiently strong, in the language of the petition, "to resist the movements and purposes of Peter Cavagna."

I now proceed to examine the testimony with reference to the purchase of horses by Bartholomew Cavagna, and I shall make such examination at some length because by far the greater part of the plaintiff's testimony on the subject of undue influence consists of this testimony.

(The court here reviews the testimony on that subject, and states its conclusion as follows :)

The criticism which I have just made upon this testimony, standing by itself, and which tend to weaken its force and reliability, are: First. That it comes almost exclusively from horse traders whom Peter Cavagna probably may have offended. Second. That there is very strong testimony opposed to it, showing that Bartholomew Cavagna did purchase horses whenever he wanted to regardless of Peter's opposition.

Third-That in almost all of the instances testified to a fair construction of the testimony would be that the purchase was to be a firm purchase and Peter's refusal to allow it was not an exercise of undue influence over his father. Fourth. That there is an entire absence of bad motive shown to exist upon the part of Peter Cavagna, whereas there is considerable testimony to show a good motive upon his part. Fifth. That the alleged admissions of Peter Cavagna prove too much.

And yet, notwithstanding these elements of weakness in the testimony, inasmuch as there is testimony which, fairly construed, must mean that Peter Cavagna, whatever his motive may have been, was able at times to prevent his father from making purchases of horses out of his own means, and that this occurred at times when no reason appears why Bartholomew Cavagna could not, if he had insisted, have made purchases out of his personal means (the testimony is such as to arouse suspicion as to any acts or transactions of Peter Cavagna and his father in their business relations and to call for a careful investigation as to such acts or transactions.)

If in any such acts or transactions we should find testimony that Peter had taken advantage of his father or had compelled him to submit to any undue influence on his part, then the doubt which exists as to the reliability of the testimony relating to the purchase of horses may be resolved against Peter and go to support and confirm the proof against him; but if, on the other hand, such other testimony shows no undue influence upon the part of Peter, then the testimony in regard to the purchase of horses need not be again referred to.

I now turn to the examination of the testimony as to the manner in which Bartholomew Cavagna treated Anthony Cavagna as an evidence of undue influence over him by Peter Cavagna.

(After reviewing the evidence upon this subject, the court concludes as follows :)

It does not appear clearly, that Peter ever objected to his father making gifts to Anthony or John, or if there is any stray evidence in the record to that effect, the evidence as to the relations between Anthony

Superior Court of Cincinnati.

and Peter, and John and Peter, and the habits of Anthony, make it quite credible that Peter's objections may have arisen from causes other than a desire to prevent his father giving away anything-even a few groceries-in order that there might be more for Peter to use or inherit.

And yet, although it may be true that Bartholomew's actions are to be explained by the fact that being of a kindly nature and with affection for both his sons, he did not want any controversy with Peter about assisting Anthony or John, whose presence at the store always excited Peter, it may also have been, and the testimony is not inconsistent with this theory of plaintiff, that he was afraid of Peter and afraid to assert himself against Peter's wishes. But this testimony, standing by itself, like that with regard to the purchase of horses, is unsatisfactory and inconclusive, but may be used to reinforce and make more conclusive the testimony of Peter's domination or control, if the other testimony in the case makes it appear with any reasonable certainty.

I have now come to a consideration of the business relations between Bartholomew Cavagna and Peter Cavagna, and especially to the facts complained of, namely, the payment into the firm of the proceeds of the sale and the rental of the property of Bartholomew Cavagna; the drawing of money out of the firm by Peter Cavagna; and the condition of the books of the firm of B. Cavagna and Son, which condition makes it impossible to an account between them.

First-As to the business relations generally between Bartholomew and Peter Cavagna; which inquiry necessarily involves an inquiry into the condition of mind of Bartholomew Cavagna, and especially with reference to the ability of Peter to control him.

Generally speaking, the witnesses of plaintiff consist of persons who went to the store to get their lunches or had dealings with the firm in transactions of a minor character. Their testimony in substance is, that Peter appeared to be the manager and "boss" of the business; that he attended to all its financial operations; that his father only busied himself about minor matters; and that Peter and his father frequently had altercations, which, however, were always carried on in Italian, and as to the nature of which the witnesses could only surmise. There is also testimony from some of the witnesses that after these altercations, Bartholomew Cavagna would walk away and cry; and there is also testimony that Bartholomew Cavagna frequently said he did not know where all the money went. And yet the great majority of the witnesses called by plaintiff, say, that Bartholomew Cavagna was a sensible man, and a good business man.

It is a significant fact that cannot be overlooked in this testimony, indeed it is one that stands prominently forth, that notwithstanding it is introduced for the purpose of showing undue influence upon Bartholomew Cavagna by Peter Cavagna, not a single instance is testified to where Peter had his own way in a business transaction in opposition to that of his father. The fact that he was more active than his father, indeed, that he was the manager, does not show undue influence over his father, because Peter naturally would have occupied that position in the business, being the younger of the two, and the entire capital of the firm, having been contributed by his father, nor would the fact that he drew the checks and appeared to have charge of the finances show undue influence; for necessarily he would so act, inasmuch as he could read and write, and his father could not. It is true that the frequent altercations carried on in Italian, and the subsequent walking away by Bartholo

Peck v. Cavagna.

mew Cavagna, are pointed to as instances of Peter Cavagna's control; but as no one has testified who understood their conversations, the testimony in regard to that, is of little weight; and the testimony as to the crying of Bartholomew Cavagna, in view of the testimony of Dr. Ravogli, that he had an an affection of the eyes which would give that appearance, becomes untrustworthy and incredible.

Upon the part of the defendant a number of witnesses have been called, nearly all of whom are of the very best reputation and standing in the community,-business men,-the family physicians of Bartholomew Cavagna,—-and Judge Sage of the United States court. Such wellknown business men as Henry O. Styles, Daniel Andrews, Jeremiah Cooper, Francis Pentland, Frank Weihe, Charles Stewart, Thomas Donaldson, John L. Miller, Joseph J. Gest and others, testified from a personal acquaintance and from years of business dealings with Cavagna & Son, that Bartholomew Cavagna was a man of remarkably sound and strong mind, and some of them say that he was a better and shrewder business man than Peter. Dr. Ravolig and Dr. Ehrmann have not the slightest doubt of the soundness and strength of his mind, and judge Sage's testimony is clear and strong to the same effect.

In view of this testimony on behalf of the defendants a mere summary statement of it such as I have just made, does not give a true appreciation of its weight and in view of the importance which I attach to it, I have felt at liberty to refer to it more in detail.

(After a more detailed statement of this testimony the court concludes as follows :)

In view of the testimony on behalf of the defendant, I see no escape from the conclusion that although there is a conflict of testimony between plaintiff's and defendants' witnesses, as to whether, generally speaking, Bartholomew was under the control of Peter Cavagna, the weight of the testimony is with the defendant; that the plaintiff has tailed in establishing the fact of such control; and that the contrary fact has been established the defendant.

But what does the testimony show as to the particular business transactions complained of, viz: First-The payment of the proceeds of the sale of and rental from the real estate of Bartholomew Cavagna into the firm. Second-The drawing out of the firm by Peter Cavagna of money for living expenses, and Third-His purchase of real estate?

(The court after reviewing the testimony on these matters, concludes that the action of Bartholomew Cavagna with reference to the same voluntary and not the result of undue influence.)

was

I come next to inquire as to the last of the great facts in dispute connected with the business relations of Bartholomew and Peter Cavagna, viz:-The responsibility for the condition of the books which makes it impossible to state an account between them.

(After reviewing the testimony on this subject, the court finds that Peter and his father were equally responsible.)

The difficulty, or rather the impossibility, of stating an account between these two partners arises not alone from the fact that it is impossible to state accurately what amount of money each partner drew out of the business, but also from the fact that it is impossible to state from the evidence whether the business was profitable or unprofitable, and if so, to what extent; and also, from the fact that from the formation of the partnership in 1868, up to the sale of the farm to the Cleaneays, a period of seven years, the receipts and expenditures were not kept separate from

Superior Court of Cincinnati.

those of the business; and the testimony of Rowe is, that up to the time of the disposal of the farm, the joint enterprises of the farm and business were run at a loss.

As it is impossible to state an account between these partners, either from the books alone, or from the books taken in connection with the evidence outside of the books, and as this situation is attributable not to the neglect of Peter Cavagna, but to the course of business adopted by the two partners and followed for nearly a quarter of a century, the law leaves the partners where they stand and refuses to interfere by a settlement of the partnership otherwise than to decree an equal distribution of the assets remaining on hand. The following authorities conclusively show that such a rule is the only one a court can adopt :

In Slater v. Arnett, 81 Va. Reports, 432, in an action for an account between a living partner and the estate of his dead partner, it was held that, "where a suit in equity is instituted to settle the accounts of a dissolved firm, one of the members being dead, and the report of the master to whom those accounts have been referred shows, that after diligent search, he has been unable to discover and report any evidence whatever to base a statement of the true condittion of affairs between the members of the late firm, and of its assets, etc., the court not being able to proceed to judgment upon suppositions and presumptions without evidence, can do no better than to withhold its hand, and to leave the parties to stand where they had placed themselves before suit was brought." In the corner of the decision the court uses this language, which has peculiar significance at this time,-page 441:-" And, as the partnership transactions cannot be settled upon any basis at all rational now, the books being so badly kept as to be worthless and there being no evidence. produced on either side upon which a court could proceed toward any rearrangement of the affairs,-what can be done except to have them as the brothers did, when both were living and arranging their business betwen themselves."

And in Ashley v. Williams, 17 Oregon, 44, it was held that "In a suit for partnership accounting, where there are issues as to the exist ence of the partnership and the state of its affairs and business, or the state of the accounts between the partners, the burden of proof is on the plaintiff and if he cannot furnish sufficient evidence to enable the court to state a partnership account, his suit necessarily fails to that extent;" and in that case the court said: "Owing to the impossibility of reaching a satisfactory conclusion as to the true state of the accounts between these parties, we have determined to direct that they be adjudged settled and closed, and that neither take, or recover anything as against the other."

In Rick v. Neitzy, 1 Mackey's Reports, (D. C.) 21, the Supreme Court of the District of Columbia held, that :-"Where there is adispute in regard to partnership matters and the parties have been so negligent as to lose the evidence of the partnership, and have kept their accounts in so confused a way that the court cannot see what decree would do justice between them, the bill will be dismissed."

And in the case of Hall v. Clagett, 48 Md., 243, which was an action for accounts between the administrator of a deceased partner and the living partner, it was said: "Such a court (equity) will not grope its way in utter darkness and undertake to create and establish a claim upon mere contingencies or the preponderance of mere possibilities or probabilities. There is no duty devolving upon it to assume the impracticable

Peck v. Cavagna.

task of adjusting the relative rights of these partners, where the proof is utterly deficient and inconclusive."

I come now to consider the will of Bartholomew Cavagna, with reference to its effect upon the partnership.

It appears that the will was made on December 17, 1878, was admitted to probate in the probate court of Hamilton county on May 6, A. D. 1889, and is at the present time in full force, having never been set aside or contested.

The parts of the will which relate to the partnership, are items 1 and 2, and read as follows:

"Item I. I desire that all my debts including all accounts, notes, acceptances and all other evidences of indebtedness, in whatsoever hands they may be, against the firm of B. Cavagna & Son, composed of myself and my son, Peter Cavagna, be first paid out of my estate.

Item II. I give, devise and bequeath to my son. Peter Cavagna, the stock in trade, book accounts, fixtures, bills receivable and all other personal property belonging to the firm of B. Cavagna & Son. I make this bequest, as also the provision for the payment of the debts of said firm as directed in item 1, for the reason that my said son, Peter, has always devoted himself to my interests and contributed largely to the accumulation of my estate and I wish him to have and continue the business which he has helped to build up free and discharged from any and all liability of indebtedness."

It is not disputed by the plaintiff that the language of the will, “I give, devise and bequeath to my son, Peter Cavagna, the stock in trade, book accounts, fixtures, bills receivable and all other personal property belonging to the firm of B. Cavagna "Son " is sufficient to entitle Peter to the stock in trade now in the store, the fixtures of the store, and outstanding claims against customers; but the contention is strenuously insisted upon that the remaining language of the will is not sufficient to relieve him from the payment of any amount of money that will be due from him to B. Cavagna upon an accounting between them, and that a very large amount has been shown in this case to be due upon such an accounting because of the payment into the business by Bartholomew. Cavagua of large sums of money and the withdrawing by Peter of large sums of money.

This contention is based upon the ground that the provision in the will is merely for the payment of the debts of the firm of B. Cavagna & Son; and that advances by a partner of the firm and payments by the firm to a partner are not firm debts or credits, for it is impossible to say until the accounts of the partners are balanced, whether the firm in the one case will be indebted to the partner, or, in the other case, the partner will de indebted to the firm; and that after the accounts are finally settled and balanced the difference between them becomes an individual indebtedness from one to the other.

The two principal authorities relied upon by plaintiff in support of its contention are: Richardson v. Bank, Mylne & Craig's Reports, 165, and Wilson v. Sper, 13 B. Monroe, 411. In the first case, it was decided that "the advances made by one partner to the partnership, and those received by another from it, until the concern has been wound up, only constitute items in the accounts between the partners and cannot be treated as debts; and the court therefore will not, upon an interlocutory application order the amount of such advances to be paid in and secured. pending a suit for taking the partnership accounts.'