The daily journal. (Salem, Or.) 1899-1903, 1899-07-27
An Argument Against the Bingham
ReceiVerShip Suit.
Showing Up the Falsity Of the Charges OF
Bingham, Davis ct al as to the
Accounting.

|
mitting Messrs. Holmes & Sherman +
go to the trouble and expense of prepar
ing and filing typewriter copies of al
extended brief and abstract in tn,
case of Bingham, Davis ct al. VS.. Hofe
Bros, Mr. Bingham notified Mr.
Holmes that in any other suit he woulC
permit typewriter briefs, but in thi
case he demanded that they be printed
He as much as said he desired I,
cause THE CAPITAL Journal publisher,
all possible costs.
So counsel for Hofer Bros. had TO pre-
pare the copy and have the work don,
over again and it has now been filed in
the supreme court. This has caused de-
lay and expense, but the case is now
fully submitted to the supreme court
unless Bingham ct al. desire to file O
supplementary brief We present our
readers part of the argument of the
able counsel for Hofer Bros, reviewing
the testimony on the question of an ac.
counting for the proceeds of the corpora
| tion:
HoFER BROS, HAVE ALWAYS BEEN PRE-
PARED AND WILLING TO ACCOUNT.
The said defendants have never re-
fused TO account. The testimony of Mr..
Chamberlin, the president of the com
pany, and also Of Defendants Hofer
show, that numerous accountings were
had between the said respondents and
the Capital Journal Publishing Com
pany from time to time. Moreover,
the suit was one for an accounting and
| it has not been denied butthe plaintiffs
make in their complaint sufficient al
legations for an accounting, and having
made the allegations, it was necessary
| for them 10 go forward with the proof TO
substantiate them. Nothing has been
concealed from them, the books were
always open 10 their inspection, and be-
| ing stockholders they had a right 10 cX-
anime them, either by themselves or 10y
any person designated to act in their be-
half, and il has not been claimed that
such inspection and examination were
ever denied them. The said appellants
called the business manager, A. +.
| Hoier, Jr., and placed him upon the
stand, he being familiar with the books
and also required the production of the
books and they were readily forthcom'
| ing they were in court as evidence con
tanning all OF the items Of receipts and
| disbursements during the long period
of time the said respondents were con
ducting the business. Had the said ap
pellants desired 10 go into the question
Of Nal Fides, they could have proceeded
10 act upon the same from the evidence
which was before the court. When thu
books were produced in open court 10
inspection, they could have examined
them, or they could have brought al
expert witness there for the purpose o
examining them; il was inCumben
upon the plaintiffs in the court below
and the appellants here, 10 point out ii
what particular the funds had peen mis-
applied. Thissthey did not undertak
10 do, although they had before tin
court every fact necessary to substan
tiate their allegations, had the said al
legations of the misapplication OF TIN
funds, been true.
CLAIM or HOPPER BROS. FOR WAGES DUE rs
TABIIsHED IL COURT.
The third point discussed OF suggeste,
by the Counsel for the Appellants, viz
persons acting in fiduciary capacit.
} must render an account when calle'
for, " certainly is good law, but all tina
is required of the party is 10 submit tn
books OF account for examination, the
il is incumbent upon them 10 go for
ward and make "A statement and poin
out 10 the interested party the particu
lar items which they challenge, bu
when the evidence is placed in an N
telligent and businesslike manner betor
the party demanding an accounting,
is his duty TO ascertain for himself whi
/, the facts are. Moreover, there Is not
syllable of evidence 10 sustain the Al
pellants' allegation that the Respor
dents have refused 10 account with an
person interested as a stakeholder
the Capital Journal Co.
The fourth and fifth propositions v
r think can he considered together. III
G Respondents here rely upon the jud
ment of the Circuit Court Of the sta
I of Oregon i'm favor of A. +. Hoier, JI
e and against the Capital Journal Pul
fishing Company a. evidence supportir
.. his claim, that the said Company VI
= lawfully indebted 10 him for his sala
, which he hal earned in conducting q
1 business and also for the salary Of !
z brother, which had been assigned
him. This judgment might be called
c. question by direct allegations IN apr
III pirate proceedings
IL BINGHAM AND PATTERSON HAD A 90
CLAIM THEY COULD COLLECT u
a. This they did not do; the mere
citals that the action had been pro
~ cuted To Judgment; that execution y
been issued thereon and the property
the Defendant Corporation had b'
~ levied upon and advertised for sale
IN the Sheriff. is about all the supplem
tai Complaint alleges, except the av
er ment that A. +. Hofer, Jr., was dnr
Va ali the time mentioned in the SAID !
m Elemental Bill, director OF the Defend
'er CORPORATION, aud that he was the D'
on ness manager OF the said corporation.
We apprehend this is not sufhel
as reason for preventing him from coli
ey ing moneys which might be due II
the Corporation 10 him. Directors
, yery frequently the servants oi the
he poration; il not infrequently happ
he' that the organization Of a corporation
-.-s cases Of this sort il made with the
derstanding, that one Of the intere'
parties Il 10 assume control OF the
concern and manage its business 10
stated salary. This was the case n
The Defendants HOier worked Tor "a
and agreed salaries from month
month and from year 10 year, NarS
/. the amount thereof from time 70 tihi