Bartle v. Coleman

2 F. Cas. 964, 3 Cranch 283, 3 D.C. 283

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: April 15, 1828
• Status: Published

Opinion

CRANCH, Chief Judge,

after stating at large the evidence of the partnership of the defendant in the transaction, said:—

We think, therefore, that the fact of partnership between the plaintiff and defendant and F. Marsteller is established.

The next question is, whether the court can make a final decree, unless the personal representatives be made parties in the cause? We think we cannot. Mr. Marsteller was equally interested with the plaintiff and defendant in the profit or loss upon the government contract. The interests of his personal representatives are equally affected by the settlement of the account. But even if they were parties, we are of opinion that the copartnership was a fraud upon the United States, and that a court of equity ought not to lend its aid to either of the partners against the other. It is proved that Mr. Marsteller himself was the agent of the government in making the contract; and it is expressly averred in the plaintiff’s bill, “that, when this contract was made, it was understood and agreed between George Coleman, ■the defendant, and Ferdinand Marsteller, uow deceased, that they should share with your orator the profits of the contract; that is to say, that each should receive one third of the profits.” If this be not fraud per se, it is such strong evidence of it that the court, in the absence of all exculpatory proof, must •consider the transaction as fraudulent. No •such exculpatory proof is produced; but the plaintiff himself avers that great frauds were committed upon the government by Mr. Mar-steller. Under these circumstances, this court, as a court of equity, will not lend its aid to enforce this iniquitous agreement, but will leave the parties to their legal remedies. The bill must be dismissed, but without costs.

MORSELL, Circuit Judge, concurred. THRUSTON, Circuit Judge, absent.