Page:Federal Reporter, 1st Series, Volume 6.djvu/716

704 FBDEBAL BEFOBTEB. �and assented to the entries in their books. He bas not shown the contrary. Those books show that Theodore H. Vetter- lein's interest in the old firm, exactly as it stood on the books, was passed to his credit on the books of the new firm and constituted his capital therein, on whioh he was allowed interest. This was done with the plaintiff's consent. It is too late for him to claim now that it was a trust fund. What- ever interest he had in his father's share was put at the risk of the business of the new firm with his knowledge and con- sent. It does not appear that the firm of Th. H. Vetterlein & Co. made any profits, except that of which the plain- tiff's share, $2,622, was passed to his credit. He drew out more than this, and the balance of $19,187.91, figured out as due from that firm, is only made out by starting with the balance of $22,926.62 as due to him from the former firm. Nothing could be plainer, it seems to me, than that the plain- tiff acquiesced, as between himself and the former firm, in his father alone being entitled to the balance of the $106,211.27, which was not as assumed in the bill cash, but the amonnt of his father's interest in ail the property of the firm as it stood on the books. I think the testimony of Theodore H. Vetter- lein and the plaintiff himself, as to the conversation between them out of which alone his claim to have been a partner in the former firm arose, shows merely a private arrangement for paying him a part of his father's profits. And against the great weight of testimony disproving his membership in that firm, there is only the naked assertions of the bankrupts and some others, unsupported by any docuraentary proof what- ever. �The claim made in the bill as to the plaintiff's interest in the assets, which were of the firm of Vetterlein & Ce, of Philadelphia, is that the plaintiff is, by agreement, entitled to the entire proceeds of collections from assets charged in the books of the firm to profit and loss, and 15 per cent, of the items, till his entire claim is paid. The bUl makes no discrimination between the two firms of that name which preceded the bankrupt firm of the same name, and treats them as one continuing firm down to December 31, 1869. ��� �