BABBITT v. 1>o•r·rmN. i 21
might have been said that there was no particular object in stating the
value of the goods, so far as Dotten was concerned, or for any other ·
purpose than simply to let him know what the cost of the goods was;
and that did not affect, in any degree, his rate of compensation; but
that had been already a matter of adjustment and settlement, which
had not been changed. So that, conceding, as I think the weight of the
evidence establishes, that Dotten continued to be employed at a fixed
daily compensation, still I cannot say that it clearly makes out, in
· this part of the case, that this change in the mode of rendering the
accounts, and fixing the compensation of the defendant, was fraudu-
lent on his part. He may possibly have considered that, owing to
the great increase of business and of the sales created by his labors-
and exertions, he was entitled to a higher compensation than the per
diem allowed him by the original contract, and that he would state
the account in a different form from that which was authorized by
theincontract, for thepurpose of ascertaining whether the plaintiff A
would acquiesce in it; and, in any event, it was competent for the
plaintiff or his agents to protest at once and decidedly as to this mode
of stating the accounts, and it was not done as early and as clearly
as it ought to have been. _» d
~ It is charged, also, that fraud was practiced in the distribution of
what is termed in the evidence "Give·Away Soap ;" that is to say,
that the amount of soap distributed for the purpose of advertisingits
quality was really much less than was contained in the account ren-
dered by Dotten. It is almost impossible to arrive at the truth, in
the conflict of evidence upon this point, amid the vagueness with
which the different statements are made by the witnesses. Undoubt-
edly there was great opportunity for a misstatement as to the
quantity of soap. thus actually distributed, if the defendant was ‘
engaged in fraudulent practices; but it must be remembered that the
very character of the business was such as to create great difficulty
in ascertaining with entire accuracy what the distribution in this
way actually was. Many men. had to be employed. There is some
evidence tending to show-that these agents thus employed did not
always act faithfully in the distribution of the· soap, butthere does
not seem to be any connection, clearlyproved, even if this be so, of
Dotten withthis supposed unfaithfulness on the part of the agents] _
-1t may be admittedthat there are several circumstances shown in
the evidence which are of a somewhat suspicious character. It was
· unfortunate that~Dotten,~while employed as- the agentofi the plaintiff,
should have formed a copartnership in another kind ofbusiness with