Page:Federal Reporter, 1st Series, Volume 8.djvu/494

480 FSDKBAli BEPOBTEB. �(Shuler's deposition) testifies that at the time Kice bought into the Tommy Smith place and cattle, ho made arrangements with liim to furnish unbroke cows to run a dairy, on the strength of which he' rented a dairy house and fenced a calf pen, and his failure to furnish the cows as agreed was a great disappointment and loss. When this is compared with those portions of the testimony of Eice in which he seeks to convey the idea that he did not know positively that Norton denied his interest in the oattle, it will appear Tery strange that he should have subjected himself to such loss and disappointment to his friend without so much as aeking Norton for cows enough to start Shuler's dairy. But it is plain, from all the testimony of Eice, that he was well enough satisfied that Norton did not regard him as his partner, at least after June 6, 1875. If, at that date, the plaintiff had been ready to comply with his part of the partnership agreement and Norton refused, plaintiff would have had his action then for a breach of that agreement. Instead of his suing then, he waits four years and sees Martin & Clark taking an interest with Norton during all that time. In addition, Dwelly takes an interest, and after the intervenors have loaned Norton $7,000 and taken these figure 2 cat- tle as security, and af ter Norton is dead, he sues for his half interest in the ranch, cattle, and increase. No sufficient reason is given for this delay, and for all these unneoessary complications of interests. The duty of the plaintiff on the fifth day of June, 1875, was plain. When he mistrusted that Norton was denying his interest in the part- nership, he should have had an understanding with him at once. Had he broached the subject to Norton at that time he would have learned that Norton did deny his interest, and that he had a right of action against him for a breach of his partnership agreement, in which, if he proved the breach, he could have recovered such damages as could have been proven at that time. But it seems inequitable to permit him to lie by for four years, all the time under a belief that he was not recognized as a partner by Norton, until time bas obscured every fact with doubt, and Norton is dead. 10 Whart. 168; 6 Pet. 66. �To the case as made by Eice a full defence bas been proved. It is not denied that Eice, the plaintiff, negotiated the trade as related by Smith in his deposition. But the claim is that in January, 1875, he withdrew from the arrangement and gave up the cattle to Norton, with the understanding that if he could arrange his money matters so as to be able to bear his share of the cost, he should be taken back; but that he never was able to do so. In support of this, they show by ��� �