BIRD, V. C.
Bill by William J. Browning against William B. Kempton. Dismissed.
E. A. Armstrong, for complainant.
Alfred Hugg, for defendant.
the company. That is all I was indebted to him." He also says that in about the year 1890 Kempton asked him if he could not pay him something on account. "Q. You say it was on account of this indebtedness to Mr. Kempton of Crap, Vanderveer & Co. to Mr. Kempton? A. Yes, sir. Q. There was indebtedness? A. Yes, sir. Q. Outstanding? A. Yes, sir." These admissions upon the part of Browning seem to me to be entirely in conflict with his first insistment that he only represented Kempton, and that he and Crap were but another name for Kempton. If they were but figureheads as between themselves and Kempton, then most evidently they were as free from any legal liability to Kempton on account of the debts of the partnership as they were on account of the promissory notes which they had given. If the one part of the transaction was mere form, the other was equally so. Hence, when he admits that as a member of the firm of Crap, Vanderveer & Co. he was liable, not to the creditors of the concern, who knew nothing of the secret negotiations between him and Kempton, but to Kempton himself, the very foundation upon which he rests his case seems to be removed. And, notwithstanding that Crap, in his testimony, corroborates Browning as to the relations which they sustain to Kempton, the fact that he submitted to a judgment at law upon the note which he gave to Kempton, making no other defense to it than an advance by him to Kempton of $250, which was allowed, is plenary proof that his testimony is to be taken with many qualifications. In the fourth place, it appears that the copartnership established a branch at Carlisle, about which Kempton knew nothing, and that the result of the undertaking was very unfortunate. As urged, it would seem that, if Kempton was Interested in any sense beyond the recovery of the balance due him for the transfer of the stock, he would have been consulted before the firm engaged in an enterprise of this character, especially when two of the members claim that they were his confidential agents or servants, and had no interest in the business, except as they represented Kempton, and to draw their salaries. In the fifth place, Crap admits, as I understand his testimony, that these notes were to be paid out of the business. The question was: "Then you mean to say that if there was anything made out of the business it was to go toward paying those notes? A. Most assuredly I mean to say that." He further says: "I was a partner in the firm, and, if there was any money made, I suppose Mr. Kempton was to get it. Q. So you were a partner, and Mr. Kempton was to get all the money? A. I am making my answer. I was a partner in the firm. Q. As a partner, were you to be liable for the losses, if any, and, if you had any profits, were you to receive them? A. Yes, sir." The result of this Investigation seems to be that Kempton was desirous of getting out of the business, and to that end a partnership was formed by Crap, Browning, Vanderveer, and Glass, under the name of Crap, Vanderveer & Co. Articles of copartnership were prepared, and signed by each of the four persons last named, fixing their salaries, providing that they should each share in the profits and losses, and that they should take the stock of goods of said Kempton. It was so understood (whether it was so expressed or not does not appear) that Vanderveer and Glass should each put in $5,000 in cash, and that Browning and Crap should also put In $5,000, either in cash or merchandise, and that whichever—whether cash or merchandise—it was to be furnished by Kempton. According to Crap's statements, this was understood by Vanderveer and Glass. Kempton furnished the merchandise, and took from Crap and Browning the notes referred to; the Browning note being the one upon which the action at law was begun. Giving this statement—which is fully in accordance with the testimony of both Crap and Browning— the most favorable interpretation to them, there does not seem to be the slightest reason for the execution and delivery to Kempton of the note in question, if there was no other consideration for it than that insisted upon by Browning, namely, that it was only to show the extent of Kempton's interest in the concern, so far as Browning was concerned. The facts that Kempton wanted to be relieved of the business, and that they were to share in the profits or losses, and that they were liable to Kempton for any Indebtedness upon the part of the firm to him, give rise to such strong presumptions against Browning as entirely to overcome the reasons offered by him in asking for an Injunction. 1 will advise that the bill be dismissed, with costs.