Opinion of the Court.

in the schedules attached thereto, not sold to parties other than the representatives of Pierre Chouteau, Jr., Sarpy and Sire. 2d. It is ordered that an account be taken of all the real estate sold since the dissolution of the firm of P. Chouteau, Jr., & Co., by the retirement of J. F. A. Sanford, to parties other than the representatives of the said partners. 3d. That, in stating said account, the lands and town lots sold to third parties in 1866 and 1867 be valued at their present value, less improvements made by the purchasers. 4th. That in said account shall be stated the amount of all the taxes paid by Charles P. Chouteau and Julia Maffitt upon the property sold, at the time of the conveyance, and also the amount of taxes paid upon the property unsold to date, and such sum as may be necessarily expended in the care and custody of the property. 5th. That, after the deduction of the taxes and the amount necessarily expended for the management of the property, and on confirmation of the master's report, 6th. It is ordered and adjudged that a decree be entered in favor of complainants, against the said defendants Charles P. Chouteau and Julia Maffitt, for the amount of 174-100th parts of the remainder, which shall be enforced and satisfied out of the interest of said defendants in the real property described in the bill of complaint or schedules, unsold. 7th. That the bill of complaint against all parties defendants other than the representatives of P. Chouteau, Jr., Sarpy, and Sire, be dismissed, but without costs. 8th. That H. E. Mann, Esq., is appointed to take the account and report."

In pursuance of the interlocutory decree a hearing was had before the master, whose report was filed August 2d, 1880. Exceptions were taken by the defendants to the report of the master, as had also been done in reference to the interlocutory decree; and, on September 21st, 1880, the court made a final decree, in which it was decreed that the plaintiffs are the owners in fee simple, and are entitled to the possession, as tenants in common, of an undivided 173-100ths of certain lands in Minnesota described in the decree, and that partition be made of said lands between the plaintiffs and the defendants; that Charles P. Chouteau and Julia Maffitt pay to the plaintiffs the sum of $36,646.56, being 17-100ths of the value of

Opinion of the Court.

the lands sold by them in 1866 and in 1867; that Charles P. Chouteau individually pay to the plaintiffs $7,793.87, being 171-100ths of the balance of the income of lands claimed to be held by him in severalty, and of the proceeds of lands sold by him since 1867; that Julia Maffitt pay to the plaintiffs the sum of $8,178,57, being 173-100ths of the balance of the income of lands claimed to be held by her in severalty, and of the proceeds of lands sold by her since 1867; that the widow of Sire pay to the plaintiffs the sum of $1,214.08, being 173-100ths of the income of that portion of the lands claimed to be held by her in severalty, and of the proceeds of lands sold by her since 1867; that the plaintiffs pay to the heirs and representatives of Sarpy the sum of $772.16, being 173-100ths of the balance of expenditures over receipts on account of lands claimed to be held by the heirs of Sarpy in severalty. These different sums adjudged against the defendants, amounting to $53,833.08, are declared to constitute liens upon the property owned by them respectively. The decree further declares that the rights of the several parties in the said real estate, so far as rents, issues, and profits and expenditures are concerned, are to be regarded as having been determined by the decree only up to January 1st, 1879.

The dispute between the parties, as shown by the pleadings, is as to the terms of the agreement of dissolution of the copartnership in 1852. The plaintiffs allege in the bill, that Sanford released to Chouteau all his interest in the assets of the firm, except its lands and town lots in Minnesota, and that Chouteau agreed to relieve Sanford from the debts of the firm, and to assure to him his 173-100ths of said lands and town lots, free from any debt or liability growing out of the copartnership affairs. The answer alleges that Chouteau agreed to relieve Sanford from the debts of the firm, and Sanford released to Chouteau all his interest in the assets of the firm, including his interest, if any, in the lands and town lots in Minnesota. The Circuit Court found the terms of the dissolution to be those alleged in the bill. The question is wholly one of fact. We are unable to concur with the decision arrived at by the Circuit Court on that question. The evidence is voluminous, and a minute dis

Opinion of the Court.

cussion of it would be unprofitable. It consists of correspondence and documents and oral evidence, and we must content ourselves with indicating generally the grounds of our conclusion.

The agreement alleged in the bill is said to have been contained in two letters, one from the firm of P. Chouteau, Jr., & Co., No. 2, the firm which was being dissolved, to Sanford, and the other from Sanford to the firm, in reply, both written in 1852, at the time of the dissolution. Those letters are not produced, nor are copies of them furnished. The only witness for the plaintiffs who testifies to having seen them, or who states their contents, is Mr. Barlow, one of the plaintiffs. On his direct examination, he says that he saw them in 1858 and 1859, at the time when negotiations for a compromise were going on between Pierre Chouteau, Jr., and the executors of Sanford, in regard to the claims of Chouteau against the estate of Sanford for his share of the losses of their New York firm; and that the last time he saw them was in 1861, when the answer of the executors of Sanford was being prepared in a suit brought against them by Chouteau in a State court in Minnesota, seeking a sale of the lands in question. He states that he was cognizant for many years before Mr. Sanford's death of the existence of the contract shown by the letters, though he did not see the letters till after Sanford's death, when they were found among Sanford's papers, and were in the possession of Mr. Gebhard and the witness. That contract he states thus, on his direct examination:

"It was in the shape of a letter signed in the firm name of Pierre Chouteau, Junior, & Co., addressed to Mr. John F. A. Sanford, and responded to by him as of the same date, assenting to the terms proposed in the letter. These terms were, that from that date Mr. John F. A. Sanford should retire from all connection with the St. Louis house, with the view of establishing a house in New York in connection with Mr. Chouteau, in which neither Sarpy nor Sire would have any interest; and it was agreed that the remaining partners in the St. Louis house should be entitled to all the assets and property of that firm, should have sose`

Opinion of the Court.

power to settle its business, that they would relieve Mr. Sanford from all liabilities and obligations connected with the St. Louis firm, and that his interest in the Minnesota lands owned by the said St. Louis firm should be retained by him absolutely."

It is alleged that the letters have been lost and cannot be found after proper search. Mr. Barlow states that the first letter was dated at St. Louis and was signed by Chouteau in the name of the firm, but was not in his handwriting; and that the other letter was signed by Sanford and may have been a signed copy of the original. On cross-examination he gives the form and language of the letters as follows:

"The first was dated at St. Louis, and addressed to Mr. John F. A. Sanford, and recited the fact that it had been agreed that from that date his interest in the firm of P. Chouteau, Junior, & Co., of St. Louis, should terminate, and that the assets and business of the firm should be continued for the benefit of the remaining partners, who agreed to assume all the responsibilities of the firm from that date, with a reservation at the close of the letter, that Mr. Sanford's interest in the Minnesota property or purchase, according to my recollection-I won't be certain whether it was property or lands-should remain in him. In one of the letters (I think the St. Louis), there was a reference to the fact that Mr. Sanford was about to or had established a firm in New York, in which Mr. Sanford and Mr. Chouteau alone were interested, to the exclusion of Sarpy and Sire. The fact appeared in the letter that a New York house was about to be established, or was established, in which Sarpy and Sire would have no interest. Sanford's response was exceedingly brief and contained merely an assent to the terms proposed or suggested in the first letter. That is as near as I can recollect the contents of the letter."

He further states, when asked "whether the reference to the Minnesota property in that letter spoke of interest in the Minnesota lands or in the Minnesota' outfit: 999

"I am confident that it was not 'outfit.' It was either lands or property-Minnesota lands or Minnesota property—and not 'outfit,' I am confident."

Opinion of the Court.

He is asked the following question: "In reference to the agreement which you have spoken of as having been made by the firm of P. Chouteau, Jr., & Co., of St. Louis, and Mr. Sanford, at the time of Mr. Sanford's retirement in 1852, had you been informed of the existence of any such agreement before the matter of the compromise was entered upon?" His reply is:

"I knew that Mr. Sanford claimed an interest in the Minnesota lands in his lifetime. I do not know that I knew of any agreement about it at that time, or had even heard about it. The simple fact was referred to, the fact of Mr. Sanford's interest in the Minnesota lands was referred to, by Mr. Chouteau, in the course of the negotiations which led to the compromise after Mr. Sanford's death. I think I saw the agreement in question at the time of the preparation of the papers executed on this compromise, but I cannot positively say that I did. My first distinct recollection of seeing the agreement in question was at or about the time of the drafting of the answer of the executors to the bill filed by Mr. Chouteau for the partition of the lands in Minnesota, to which I have testified."

It may well be questioned whether sufficient evidence was given of proper search for the letters, and of their loss, to warrant the parol evidence given of their contents. The parties who searched for the letters in the places where it was supposed they might be, were not called as witnesses, and there is no testimony as to the character or extent of the search, but only evidence by Mr. Barlow of his direction to persons to search, and his statement of his understanding of the result. There is no evidence that the letter from Sanford was ever sent. It was found among his papers after his death. On search, no such letter has been found among the papers of the firm in St. 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 15th, 1861, in the suit brought in the State court of Minnesota, by Chouteau and the