20 FEDERAL nmronrna.
his agent because he had not paid over all that was due to him, and
whether an account should be taken for the purpose of accomplishing
that object, there would not, perhaps, be much difficulty in reaching
a conclusion; but the ground upon which application is made to a
court of equity in this case is that of fraud, and not that Dotten hashad
and received money of the plaintiff which he ought to pay over to him.
The litigation is of long standing, and when the bill was nled an
application was made to the court for the appointment of a receiver
to take possession of the individual and partnership goods of the de—
fendants, who was accordingly appointed by the court and took pos-
session of t_he property, and it was sold apparently at a sacrifice, its
administration having been attended with great, and, it would seem,
rather unnecessary, expense. It may be stated at the outset that
there does not appear to be sufficient evidence to connect Smith or
Sherwood with any conspiracy with Dotten to defraud the plaintiff,
and as to them the bill must be dismissed.
T The main difficulty arises as to the character of the different trans-
actions of Dotten with the plaintiff. It is charged that he has not
l accounted for the value of all the soap he sold, and the proceeds of
which were received by him, after deducting the necessary expenses
and his compensation. I am inclined to think that this proposition,
under the evidence, is sound, and that it states the true legal rela-
tion of the parties toeach other; but the question is whether, in the
in the change which took place as to that part of the business, there
was a fraud ·perpetrated by Dotten for the purpose of cheating the
plaintiff. The goods were furnished by the plaintiff to the defendant,
and the shipments made upon bills or invoices which were sent at
the time the goods were forwarded. The defendant claims that, from
the manner in which this part of the business was transacted between
him and the plaintiff, an agreement was made under which he was ·
only accountable to the plaintiff for the goods at the prices named in
the bills forwarded; and there can be no doubt there is- much in the
testimony to justify this view. Accounts were furnishedby him upon
t-his basis,~and_there was also much in the conduct of the plaintiff, cr
theragents who were acting for him, tending to show an ackjuiescence
in this mode of transacting thebusiness and of stating the accounts;
and it is unquestionable that, when this method was adopted bythe
defendant,-the distinct statement was not made, as perhaps it should
have been, reminding Dotten of the original basis upon which the par-
ties stoodtto each other, and that he was simply an agent employed to
sell goods- at—*a-fixed rate of compensation perday. · For example, it