Page:Federal Reporter, 1st Series, Volume 2.djvu/171

164 TEDERAIi EEPORTEH. �of the firm of Brewstei' & Baldwin while that firm clid tus- mess in 1869. Whether the omission to eommunicate a fact will be considered a fraud depends largely on the circum- stances attending the particular case, and what diity, in respect to the matter in question, the part,y charged with improper concealment owes to the other party. Brewster undoubtedly had an interest in Baldwin's obtaining a partner with capital, and when the connection -with Burr was first proposed he certainly desired, and had reason to desire, its consummation. He knew, also, that in the interviews be- tween himself and Burr that possible partnership was in contemplation, and that the interviewa, or one of tbem, were specially arranged for the purpose of considering this subject. �Assuming, however, that the circumstances were such as called for the communication on his part of any thing known to him which might influence Burr, and which he had any rea- son to believe Burr was ignorant of or would desire to know — and this, I think, is as strongly as the complainant's case at this point can be put — there is still no proof of fraudulent concealment. Brewster knew that Baldwin and Burr were intimate friends and constantly together; that for several months Burr had been aiding Baldwin financially; that he had obtained from him the preceding April a pledge of a large part of his stock of carriages as security for his loans of some $35,000. He had good reason to believe, and did be- lieve, that Burr knew that Baldwin was, and had for several months been, in financial straits ; that he f ound it difficult to meet his current maturing obligations in his business. �The fact that the business had been poor, and carried on at a loss for the last year, was not concealed from Burr. On the contrary, it was matter of discussion between the parties. In the settlement of their partnership affairs Baldwin & Brewster agreed upon a certain sum, about $46,000, which was treated as the amount of the losses in the business, for the purpose of such settlement. It was not strictly and exclusively losses in business. It included allowances for d spreeiation in what had been spent on the premises leased by the firm and other matters. The account had been made ����