The Portland daily press., 1876-03-07

his capital as wholly lost.
Again, the advertisements, letters and other
documents of the bank of Portland, both before
and after the alleged partnership, represent
Goold as the sole party in interest. There is
no satisfactory evidence that Good at any
time after May 1874, represented that Clements
was ais partner; the business was managed by
him, precisely as it had been before; his clerk
knew OF no change; no entry on the books, or
memorandum anywhere, shows that Clements
had become jointly interested in the business;
no separate account of the expenses, or profit
and loss OF the business, was kept, as was to be
expected If an other person had an interest
there, but Goods personal expenses were
mixed with the expenses of the bank, as if the
business were still solely his own.
Gooio sWears that the capital Clements was
to contribute was $4,000. Clementss deposit
June l, 1874, was $4,000; he deposited $1,000
in June, Us 600 in July, $1,000 in November,
and VI 900 in December-in all, about $33, 900.
During all this time, the bank was is in great
need OF money. Goold was rediscounting pa
per taken at 7.3 per cent. in Boston for s, 10
and II per cent in order to meet his liabilities.
He RENTED hundreds of thousands of dollars
through the express company, depositing the
amount at the express office here, to be paid in
Boston the same day, on notice by telegraph,
and for this service he paid commission of a
quarter OF one per cent, raising the money fire.
quently at other Portland banks on his sight
drafts on the Everett bank, which had to be
provided for in the same way the next day.
Would he have resorted to these wasteful ex-
pedients if he had then had a right to call up
on Clements for balance of $4,000 to $14,-
600 due on account of an unpaid subscription
to the capital of the bank?
M. y. Patten, skillful and intelligent &C.
countant, stated that ''from the day when the
bank OF Portland commenced business until
the day OF Its failure, there was not day in
which the books were correct" On July %,
1874 Tor example. there is a charge to the
war yNtG III. e L III
was ever remltted. 1t is hardly to be blieved
that such wholesale frauds could have been
concealed from Clements if he had been a
partner, especially when it is remembered that
he was merchant of extensive experience,
and was In and about the bank much of the
time. The risk of discovery was so great that
iteannot be believed that Goold would have
so conducted the business, if he had been liable
to the oversight of a PARTNER at any moment.
The ledger purports to show the condition of
the bank, from day to day, until its failure.
On the ledger, the capital account remains
$4,000, and Clements account showed a de-
posit of $32, 900 from day to day; and there is
no change after May, 1874, when according to
Goods testimony the deposit should have been
carried to the capital account.
On May %, 1875, Goold made an assignment
OF all the assets of the bank to j. III. Drum
mond, to secure him for prosecuting bail for
Go0ld. The assignment treats all the assets
as Goods individual, private property, to be
accounted for to him when the purposes of the
assignment were accomplished.
On the 22d of June, 1875, Goold made his re.
turn under oath to the District Court of list
OF his creditors, and upon that list he entered
the name of Clements for both of the claims
subsequently presented by him. If Clements
was partner, Goold committed perjury by
returning him as a creditor.
1t is within the knowledge Of the court that
Goold was not willingly adjudged bankrupt.
He resisted the petition of his creditors, and
delayed the adjudication as long as possible,
compelling the petitioners to appear at Bangor
prepared for trial. But if Clements had been
PARTNER, he could have defeated the petition
by word.
In his conversation with Edward Gould in
July, 1874, Goold said that Clements was not
ready to complete and advertise the partner
ship. In reply to Edward Russelps mercantile
agency in Boston, Feb. 2, 1875, Clements denied
his liability for any of the transactions of the
bank, which was thereupon disrated. Goold
was informed of this letter, but in no way con-
troverted its statement.
His first disclosure of a partnership was
made In his affidavit of Aug 2 1875, in which
he swore that ION or about the first day Of JAN
uary, 1874" Clements surrendered his collat-
eral and agreed to go into partnership, fur
nishing the money then in said Bank of Port
land as part of the capital" But on his exam
ination, he swore that the agreement was in
May, 1874, and that the capital to be furnished
was $40, 900.
On the other hand, the testimony shows
nothing on the part of Clements indicating any
change in his relation to the bank, from the
beginning of his deposits there. 1t does not
appear that he ever received or paid out any
money, and on only one or two occasions in
the absence OF Goold, did ne advise or direct
about any loans or discounts. He does not ap-
pear to have suspected the ruinous method in
which Goold was conducting the business. He
does not appear to have compared the monthly
afofn &c Of fhn Do, Il xx,;tI tIa
count on the ledger Of the Bank of Portland,
though any month would have disclosed
discrepancy, Patten says, of more than 500, 600;
Clements was not then engaged in extensive
business; he had time, and if he had been a
partner, he would have had motive and the
right to ascertain the exact condition of the
business. Furthermore, if he had been a
partner, he would have known that his connec-
ton would have been a great help to the bank,
and would have been anxious to advertise it
for the benefit of the business; but on the sec
ond OF February, 1875, he stated, when applied
to by RusselPs agency, that he was not liable
for any of the transactions of the bank.
The surrender of the collateral security for
his deposit by Clements, so far as it goes tends
to confirm Goods statement; but this is only
PLANTATION offered by Clements is reasonable
and in accordance with experience.
The assignee has examined a large number
of witnesses, as to the acts and declarations of
OlcIlCutS III Iu6 HdtuI6 VI duulSSlOuS, Oh Ills
part, of the partnership. Greenleaf on Evil
dence, vol. ], p 200. says that 'Verbal admis-
sions ought to be received with great caution !;
the evidence, consisting, as it does, in the
mere repetition OF oral statements, is subject to
much imperfection and mistake" 1t is sell
dom that casual conversation is fixed so in
deibly in our memory, that we can repeat it
0er6dttn months or years afterward. Judge
Redfeld remarks that from the mpossibility
of recolleciing the precise words used by the
party, or transating them by exact equiva-
Tents, we must conclude there is no reliance on
this class of testimony"
T. f. Jones, the Portland manager Of Rus
selfs agency, testifies that in May 1874 Glenn
ents said ''he was partner in the bank and
was considered holden for the liabilities of the
concern" and that the partnership would be
advertised in July. The rating twas raised on
this statement from $4,000 to $4,000. But on
the 10th OF May, 1874, Jones wrote to e. Rus
sell, Boston, that Clements had already put in
$4,000. intended to put in more, and would be
advertised as partner, being SO already "vir-
tually.' This contemporaneous statement
does not go to the extent of Jones's subsequent
testimony; it indicates only an intention of
forming partnership, and expressly states
that no such partnership actually exists-the
word virtually" meaning sin effect but not
actually
ship with Clements was formed ''the last of
May 1t could not have existed then, at the
date of the conversation with Jones, prior to
the goth of May.
The testimony Of the other witnesses shows
thai Clements was anxious to bring business to
the bank, that he had large interest there, as
a deposition, that he believed Goold to be an
honest man, and was contemplating partner
ship, but does not indicate an admission of
partnership at any time as actually formed and
existing.
The testimony of Clements that he was never
a partner is confirmed by every act and express
sion of Goold, while he was carrying on the
business, and by his solemn oath The SUISSE
quent testimony of Goold is counteracted by
Clements whole demeanor, and is not substan-
tiated by the alleged admissions remembered
by the witness called by the assignee. The Pc
titioner has failed to establish the partnership
as alleged, nor does it appear that Clements has
incurred the liabilities of partner by allowing
himself to be held out as partner.
1t is possible, that some of the depositors
might establish particular liability to them,
from ,Cements's conduct to them, but that
would not affect the present proceedings.
AS to the second point, Good swears that
Clements had withdrawn from the concern
$4207O This statement Clements absolutely
denies. There is no other testimony. In june
1875, Goold made oath that these deposits were
all justly due to Clements. In eAugust, he
swore directly to the contrary. In his examin-
alton before the Register. he produced list of
amounts paid by him on checks, which he