
    *Chieves & Osborne v. Gary’s Adm’r.
    January Term, 1874,
    Richmond.
    Absent, Christian, J.
    Settlement of Accounts,—C, a manufacturer of tobacco, in 1849 employs G in his business, and agrees to give Mm one-fourth of the net profits of all the to bacco manufactured by 0. G dies in January 1860, and G’s administrator files his bill against G for an account and payment. G answers and says there is an account on Ms books called “factory account,” which shows correctly the net profits of the business. This account, however, is only brought up to December 1858. as the business of 1859 was not closed. Upon the suggestion of the commissioner directed to take the account, G and G’s administrator agree lo a mode of settlement based upon the factory account. And they agree that the account for 1859 shall be settled upon the same principles. A lot of tobacco manufactured in 1858 and 1859 G claims is not within the terms of the agreement. As G was to have onefonrtli of the net profits on all tobacco manufactured, the account of 1859 must be settled so as In effect to bring this lot into the factory account, and allow G one-fourth of the profits of it.
    In April 1860 Travis T. Broocks, administrator of John G. E- Gary, deceased, instituted a suit in equity in the Circuit court of the city of Petersburg, against James Chieves and Edmund H. Osborne. In his bill he sets out, that about the beginning of the year 1849 John G. E- Gary, who possessed great experience and practical skill as a manufacturer of tobacco, James Chieves and Edmund H. Osborne, commenced the business of ^'manufacturing tobacco in Petersburg in the name of James Chieves, and continued the business on a large scale until the death of Gary on the 9th day of January 1860. The business was very profitable; there was, as far as plaintiff knows, no written agreement between the parties, as to the extent or character of their respective interests ; but he has been informed and believes that it was agreed between them, that the said Chieves should receive three-eighths, the said Osborne three-eighths, and the said Gary one-fourth, of the profits of said business; and he thinks it probable that beyond this there was never any express agreement between the said parties as to their respective interests. Plaintiff is unable to affirm whether all the said parties were or were not partners; hut he knows that the said Osborne and Chieves, since the death of said Gary, insist that he was not a partner, and that he was only entitled to receive one-fourth of the profits as compensation for his services. The plaintiff has not such information as will enable him to affirm that these allegations are untrue, or to admit that they are true; and to enable him better to understand the rights and interests of his intestate he has been desirous to examine the books in which the accounts of said business was kept, and which are in the possession of Osborne and Chieves. This he conceived he had a right to do whether his intestate was a partner or only entitled to a share of the profits as compensation for his services. But the said Chieves and Osborne have refused, though repeatedly applied to, to allow the plaintiff to examine the said books, or any of them, unless he would first admit that his intestate was not a partner. This the plaintiff could not do, having due regard to the rights and interests of his intestate’s estate. He prays that they may severally make full answer to the bill on oath; that the court may direct a settlement of all accounts *and transactions between the said Gary and Chieves and Osborne; that plaintiff may have a decree for what shall be found due to him as administrator of Gary; and for general relief.
    Chieves and Osborne appeared and demurred to and answered the bill separately. The demurrers were for want of equity in the bill; and were overruled.
    Chieves, in his answer, says that a verbal contract of partnership was entered into in the latter part of 1848, between Osborne and himself, for the manufacture of tobacco, to be conducted under the name of James Chieves. That the business of the firm commenced on that day, and has continued, without interruption, to this day, the 20th of May 1860: they being the only partners of the firm. That a contract was made by Osborne, with said Gary, (subject to his approval,) that Gary should serve the firm of James Chieves as overseer or manager in the tobacco factory, for a compensation equal to one-fourth of the net profits realized from manufactured tobacco. To this contract respondent reluctantly assented; and Gary, on the first of January 1849, entered the service of said firm in the capacity and upon the terms aforesaid. He denies that Gary ever was a partner in said firm, or ever acted as such, or pretended to be a partner; or that he had any interest, whatever, in the business, assets or profits of the firm, except to receive one-fourth part of the net profits realized on manufactured tobacco, as compensation for his services, in pursuance of the contract of service made as aforesaid. He denies that the defendants, or either of them, have refused to render an account, or to make payment of whatever may be due to the decedent from the said firm, or from the defendants or either of them. On the contrary, this respondent proposed to the plaintiff that he might select any competent accountant in the city of Petersburg *to examine the books and papers of the firm of James Chieves, and make out from them a full account of Gary’s transactions and accounts with the firm; and that your respondent would give such accountant access to all his books and papers, and pay at once, in a satisfactory manner, the balance found against the firm. But respondent was and is unwilling, and still refuses, to permit the plaintiff, who is a rival in the business of manufacturing tobacco, to examine his books and papers, and learn their contents, so that he may publish to the world, or use for his own advantage, information of great value to this respondent, and acquired at great cost. He is still willing that your honor, or any competent accountant, who would respect the privacy of respondent’s affairs, shall take the books and papers of the firm, and explore them, and make out Gary’s account.
    
      The defendant further says: Upon the books of the said firm there was opened, and always accurately kept, a “factory account,” which showed, at the end of every year, the net profits realized upon manufactured tobacco, to one-fourth part of which Gary was entitled, as compensation for his services in money, when he might choose to demand it. His account upon the books shows that when he wanted money he obtained it, from time to time, from his employers, and was regularly charged with it. The account filed with the answer of the defendant Osborne is made up from the books, and is a full, true and correct account of the credits to which Gary was entitled, and of the sums of money with which he should be charged, and shows truly the balance due him, and is adopted as part of this answer.
    The defendant further denies that he ever sought or endeavoured, directly or indirectly, to exact or otherwise obtain from the plaintiff, any admission or concession at all affecting the estate of the decedent or the *plaintiff’s rights as the decedent’s representative. On the contrary defendant offered to show to the plaintiff Gary’s account on the books, and tq give any explanation or information in respect to it, that he might deem necessary and proper to satisfy him: but the plaintiff declined said offer; saying that if he cqul'd not examine all the books he would examine none.
    The answer of the defendant Osborne is substantially the same as that of Chieves. He says—An abstract of said Gary’s account made out from the books and marked Exhibit A, is herewith filed, as part of this answer, and shows that there was due to the decedent at the time of his death the balance of $23,999.72. He avers that said account is a true abstract of said Gary’s account on the bqqks of the firm, and he submits that the plaintiff is not entitled to any further account, and certainly is not entitled to the production of the books and papers of said firm, pnless he can by proof or affidavit lay the foundation for the belief, that said books and papers would, if produced, establish said account to be erroneous.
    The exhibit A .was a statement, first of moneys received by Gary in each year commencing on the 1st of January 1850 and ending the 1st of January 1860, amounting to $48', 975. Then a statement of one-fourth of the profits down to 1859 (the factory account for year 1859 not settled) $72,974.81; making amount due Gary $23,999.72.
    The cause came on to be heard on the 6th of June 1860, when the court, not then deciding the question whether Gary was or was not a partner of the defendants, and interested as such in their business, decreed that tlie defendants render before one of the commissioners of the court an account of the business carried on by them under the name of James Chieves, so far as *the same relates to the manufacture of tobacco, and so far as to show the net profits of the business of manufacturing tobacco, done under the said name, from the 1st of January 1849 to the day of Gary’s death, and the amount due him on account of his share of one-fourth part of the profits of said business of manufacturing tobacco, &c. And the defendants were directed to produce before said commissioner, on oath, all books, documents, accounts, correspondence and papers relating to said business, the same to be subject to the examination of the commissioner and the plaintiff. And that both plaintiff and defendants submit to be examined on oath touching the subject matter of this reference, or touching said books, &c., as to which the commissioner or any party may desire such examination. But nothing herein shall require the defendants to produce any books, &c., or answer any question not necessary to show the transactions, accounts and profits of said business, and the amount due to the plaintiff on account of his intestate’s interest therein.
    On the 10th day of September 1860, Chieves, Osborne and Brooclcs, entered into an agreement under seal,’ by which, after reciting the reference of the cause to a commissioner to take the account, and that John Mann, one of the commissioners of the court, had issued his notice to the defendants to produce the books, &c., which they had done, proceeds: And whereas the said John Mann being desirous of effecting a compromise between the parties to said, suit, and thus end the controversy between them after examining the papers in the cause, and making a partial examination of the books, &c., submitted to him by the defendants, of his own accord, made the following proposition to them, to wit: That he should settle the account required by the decree aforesaid, on the assumption
    that the plaintiff’s intestate, *John G. E). Gary, was an employee of the firm carried on under the name of James Chieves; and in settling the same that he should take the balance of the profits of the business of manufacturing tobacco in each year from the 1st of January 1849 to the 31st of December 1858, as shown by “factory account” and “factory balances,” on the books of said firm, without computing interest on the several items in said accounts, as the true balance of said business for each year, strike the balance on the 31st day of December of each year, and carry one-fourth of the balances to the credit of John G. E). Gary. And in settling the said Gary’s account with the firm, he should deduct the amount of his debits for each year without interest, from his proportion of the profits for that year: the balance due him on the 31st of December in each year to bear in-1 terest from date until paid; to which proposition the parties to the said suit agreed. Now, therefore, it is hereby agreed by the parties aforesaid, that the said Mann shall settle the accounts required by the decree aforesaid up to the 31st of December 1858 (which is as far as the same can now be settled) upon the principles proposed by him, and report the same to the court as
    
      the basis of its decree. And that the accounts from the 31st of December 1858 to the 9th of January 1860, the day of Gary’s death, shall be hereafter settled and reported on the same principles. And the said parties agree to abide by the settlement to be made on the principles aforesaid, as final and conclusive between them, and to perform the decree or decrees that may be founded thereon.
    On the 6th of October 1860 Commissioner Mann returned his report. He says that after a careful examination of the papers in the cause, and a partial examination of the books, &c., produced before him by the defendants, he submitted to the parties a proposition in ^writing indicating the manner in which the accounts directed by the decree should be settled; which was accepted. And he sets it out as it has been stated. He says he has settled the accounts in the manner agreed on by the parties, which embraces all the debits against Gary from the 1st of January 1849 to the 31st of December 1859, on which day the account is closed, and shows a balance due John G. E- Gary by the defendants of $55,281.50, of which $38,117.73 is principal, and $17,163.77 is interest.
    The commissioner reports further—that the profits or the business for the year 1859 are not embraced in the settlement, because the tobacco manufactured in that year has not yet been sold, and the profits are not ascertained.
    On the books of the firm there is an account headed “Adventure to California,” which consists of tobacco manufactured by James Chieves: it is claimed by the plaintiff that the profits of said adventure are included in the terms of the written agreement hereinbefore referred to; which is denied by the defendants. The commissioner expresses no opinion upon this subject, inasmuch as it does not practically arise; the cLdventure to California being yet open. It is reserved as a matter for future consideration upon such proofs and arguments as may be offered by either party.
    The cause came on to be heard on the 21st of November 1860 upon the papers formerly read, the agreement of the parties and the report of the commissioner made in pursuance of said agreement, to which there was no exception ; on consideration whereof the court confirmed the report, and decreed that the defendants Chieves and Osborne should pay to the plaintiff, Broocks administrator of Gary, the sum of $55,281.50, with interest *on $38,117.73, part thereof, from the 31st of December 1859 till paid.
    And the court, without then deciding anything in relation to the “California Adventure, ’ ’ referred to in the report of the commissioner, but reserving the same for future consideration, decreed that the defendants render before one of the commissioners of the court, upon the basis and according to the principles of the agreement of the parties aforesaid, an account of the transactions between the parties not embraced by the former report, and up to the 9th of January 1860, the day of Gary’s death.
    The account directed by the decree of November 21st 1860 not having been taken, the court on the 26th of November 1866 ordered that one of the commissioners of the court should proceed to take it. And for the better taking the account it was ordered that the defendants produce before the commissioner, on oath, all books &c. in their possession, that may be necessary to enable the commissioner to state and settle the account. And both plaintiff and defendants submit to be examined, &c.
    In May 1868 the commissioner made his report, by which he reported the profits of the concern of Chieves on manufactured tobacco, for the year 1859, at $9,569.03; of which Gary’s estate was entitled to one-fourth, $2,392.25. In his report he says on the books of the firm there is an account headed “Adventure to California,” which consists of tobacco manufactured by James Chieves. It is claimed by the plaintiff that the profits in sa id adventure are included in the terms of the written agreement, herein-before referred to, which is denied by the defendants. The commissioner expresses no opinion upon the subject. He however makes a ^'special statement at the instance of the plaintiff’s counsel, in which the right of Gary to one-fourth of the profits on the tobacco entered on the books as the California Adventure is discussed.
    As to this “California Adventure,” it appears that prior to 1857 E. J. Hudson had been engaged in manufacturing tobacco and sending it to California. In July 1857 he and Chieves and Osborne entered into a written agreement, by which he sold to them his brands and marks used by him in shipments of tobacco to California, for which the}' were to pay him $5,000 in two annual payments of $2,500 each from the 1st of January 1858, provided the shipments to California should make a net profit of that amount. Chieves and Osborne were to keep an account of said business, their statement to be final; and of the net profits for three years and six months, if any, Hudson should receive one-third, after deducting the amount of $5,000. Chieves and Osborne for manufacture of said tobacco, were not to charge less than six nor more than seven cents per pound; and this charge to include sweetening and flavoring.
    Under this contract the firm of James Chieves proceeded to manufacture and ship tobacco to California; and they kept a separate account of it on the books of James Chieves, under the title of “Adventure to California.” There seems to be an entry of a small sum on account of this adventure in 1857 entered on the factory account; but that account did not show the profits of any tobacco connected with this adventure for the business of the year 1858 or 1859. And Chieves and Osborne contended that this tobacco did not come within the terms of their agreement with Broocks.
    The defendants excepted to the report; but the only material exception is to the rejection of a credit of $2,500, on account of the depreciation of the value of tobacco on *hand at the end of the year 1859. This the commissioner rejected as not sustained by the. evidence. They also excepted to the special statement.
    The cause came on again to be heard on the 5th of June 1868, when the court overruled the exceptions, and confirmed the report; and rendered a decree in favour of the plaintiff against the defendants for the said sum of $2,392.25, with interest thereon from the 1st of January 1861 till paid.
    And the court being of opinion that Gary was entitled to one-fourth of the profits of the tobacco manufactured by the firm of James Chieves which was credited on the books of the firm to “factory accounts” for 1858 and 1859, and debited to the accounts on the books .of said firm headed “Adventure to California” 1858 and 1859, decreed that the defendants render before the commissioner an account of this tobacco so as to show the profits on it. From this decree Chieves and Osborne obtained an appeal to the District court of appeals at Petersburg; when so much of the decree as directed an account of the tobacco referred to under the head of Adventure to California was reversed. And thereupon the plaintiff applied to this court for an appeal, which was allowed.
    J. Alfred Jones and Mann & Stringfellow;, for appellant.
    John Byon, for appellees.
   Anderson J.

delivered the opinion of the court.

By the admission of the appellants, in their answers to plaintiff’s bill, the plaintiff’s intestate, by contract with the firm of James Chieves, was entitled to receive one-fourth part of the net profit realized upon *the manufactured tobacco, for his services, in lieu of a fixed salary. And the tobacco which was manufactured for the California adventure by the firm, as shown by the entries in their books, was manufactured in the same way all the rest of their tobacco was, and by the firm, under the direction and management of the said Gary, and necessarily constitutes a part of the manufactured tobacco, in the profit upon which he was entitled to share, there being no pretence even of an agreement on his part to except it from the contract. The contract of the appellees with Fdward J. Hudson, to give him one-third of the net profits on the tobacco manufactured for the California adventure, although enhancing the cost of manufacture, did not authorize them to impose other terms upon Gary, without his consent; and could not deprive him of his right to the one-fourth part of the net profits realized upon that tobacco, he never having surrendered his right thereto, or changed his contract in respect to it. Was this right surrendered by his administrator, the appellant, by his contract made with the appellees, pending this suit? This is the main question. If it was not surrendered, the intestate’s estate is still entitled to one-fourth part of the profits realized by the firm on the manufactured tobacco shipped to California.

There is no express stipulation of release or surrender in the contract. And it can be implied, if at all, only from the direction to take the balances, as shown in the “factory account” and “factory balances,” as the true balances. If that language restricts the commissioner to the entries made under those heads of account, and forbids the correction of any errors, either by taking from, or adding to, or changing the balances shown by those accounts, as written up, (which would be adhering very closely to the letter,) such restriction could only apply to the account for 1858 and the previous years. It could *not, and does not, apply to the account for 1859, which had not been closed on the books. The accounts for 1858 and the previous years, were stated and reported to the court, and the balances, as shown in “factory account” and “factory balances,” were taken as true, and showed a balance in favor of the plaintiff’s intestate of $55,281 and 50 cents, after deducting debits of 1859. To this report there was no exception, and the same was confirmed by the court; and the above balance was decreed the plaintiff; and the commissioner was directed to take an account of the transactions between the parties, not embraced in said report, up to the 9th of January 1860, upon the same principles which had been agreed upon for the settlement of the previous account.

Those principles were, so far as applicable to the statement of the account subsequent to 1858, that the plaintiff’s intestate should be treated as an employee of the firm, entitled to one-fourth part of the profits on the tobacco manufactured, and that his debits for the year 1859, which had not been taken from the balance due on the previous account, if any, should be deducted, without interest, from his proportion of the profits, to the close of the year 1859; the balance to bear interest until paid. These were the principles upon which, by the agreement, the previous account was to be settled. And, in addition, it was stipulated that in its settlement the balances, as shown by “factory account” and “factory balances,” should be taken as true. But such direction could not be applicable to the account for 1859, because confessedly the accounts for that year had not been written up, and the balance was not shown; and therefore could not be taken as true.

It was shown by “factory account” for the year 1858, that the manufactured tobacco shipped to California that year, cost the firm $29,423.38, which is credited to “factory *account.” But no credit is given for the profits realized on that tobacco. “Factory account” is credited with 7 cents a pound. But that entry was made in pursuance of the agreement made by the appellees with Hudson, to which Gary was no party; by which they bound themselves to keep an account of that business and of the net profits, of which Hudson was to have one-third. They also agreed that the charge for manufacturing should not be less than 6 nor more than 7 cents a pound, which should include sweetening and flavouring. The language imports that it was the estimated cost of manufacturing; and according to the weight of evidence, it does not exceed the cost. Brtt, be that as it may, they could not limit the profits in that way, so as to impair the right of Gary, under his contract, to the one-fourth part of the actual profits, without his consent. It was binding only between them and Hudson. And this entry was necessary, and could only have been intended to carry out their contract with Hudson. Then, when they received the returns of sales, a deduction of the cost of the tobacco, as credited to “factory account,” from the net proceeds of sales, would show the profit; from which one-third, which they agreed to give Hudson, should be taken, as a part of the costs to the firm; and the other two-thirds should be credited to “factory balances, ” or carried to “profit and loss,” which is in effect the same; and out of which, as the profit on manufactured tobacco, Gary, by his admitted contract, was entitled to one-fourth.

But the factory account for 1858 did not show this balance, and the balance shown by it was to be taken as true. If no sales had been made of this year’s shipments, or if the account and proceeds of sales had not been received by the close of the year 1858, no profit had been realized upon this tobacco at that time; and by the terms *of the agreement with Gary, as it is set out by the appellees, he was only entitled to a share of the profits realized. And no entry of profits could be credited to “factory balances” until returns were received. Until then Gary was not entitled to be credited with his share of the net profits. “Uactory accounts” is not credited with the shipments until December 1858, and it is therefore evident that the profits could not be realized in time to entitle Gary to a credit for his one-fourth part by the 31st of December 1858, when the “factory account” for the year was closed on the books. Wo profit having been realized, as late as the 31st of December 1858, as far as this record shows, the "factory account" showed the true balance then due Gary. But that could not preclude him from receiving his share in 1859, or subsequently, whenever the profits were realized.

But the cost of tobacco credited to “factory account” is debited to “adventure to California ;” and as the returns are received, must necessarily be credited to the same. This does not show that the firm in making that entry intended to withhold from Gary his share of the net profits, or to deny his right to it. This evidently appears from the fact that the entry, upon shipment of 1857, to California, was made in the same way, and one-third of the net profits was credited to Hudson, and one-fourth of the two-thirds was credited to Gary. And if so, his administrator, in agreeing to take the balances shown by “factory account” and “factory balances” as true, if his attention had been called especially to the entry aforesaid, could not have interpreted it as an exclusion or denial of his intestate’s right to the one-fourth part of the net profits on the tobacco shipped to California, when the returns were received and the profits realized. It was proper that this transaction should be kept separate from other transactions of the factory, in order to ascertain *Hudson’s share of the net profits. When that was deducted, the net profit of the firm which remained might be carried back to “factory balance,” and thence to “profit and loss,” which is the summing up of the balances of all the accounts, to show what profits there are for division; or, to avoid that circuity, it might be carried directly to “profit and loss, ’ ’ as seems to have been done with the profit on the shipment to California in 1857, which was afterwards divided, and one-fourth credited to John G. E). Gary, who was then living. It would be more regular, after the amount due Hudson was ascertained and deducted, especially if Gary was not a partner, and was entitled only to a share of the profit on manufactured tobacco, to carry the net profit of the firm (the two-thirds) to factory balance account, and to credit Gary, to the debit of “factor balance,” with his one-fourth part of the profit, and carry the balance to “profit and loss” account, to be divided between the members of the firm. And the administrator, when making this agreement, if his attention had been called to this matter at all, may well have concluded that, when the profits on the shipments of 1858 to California were realized, they would be credited to “factory,” on “factory balance” account. However that may be, there is nothing in the terms of his agreement, or in any fair inference therefrom, to inhibit it. Nor does it appear that it was the intention of the administrator by this contract to surrender his intestate’s undoubted right to share in the profits realized from a part of the tobacco, and a very large portion of it, manufactured in 1858 and 1859. ISior is such the effect of his contract.

But, if the clause of the contract, which we have been considering, could be construed as restricting the plaintiff to the balance due on the 31st of December 1858, as shown by “factory account,” and as excluding him from *a share of the profits on the manufactured tobacco shipped to California prior to that date, we think, from the conduct of ’ the appellees and all the circumstances disclosed by the record, that it was a deception practiced upon the administrator; and that in consenting to said contract, he was not aware that it was liable to such a construction, or that he was surrendering the right of his intestate to one-fourth part of the profit realized upon any part of the tobacco manufactured by the firm under his direction and management.

Mr. Osborne, in his answer, had sworn that the firm “opened and kept upon their books a ‘factory account,’ which shows, correctly and compactly, for every year, the net profits realized upon manufactured tobacco, to one-fourth part of which Gary was entitled, in lieu of a fixed and stated salary, as compensation for his services.” Upon the recommendation of the commissioner, which was doubtless influenced by this asservation of Osborne in his answer—(for he says he had carefully examined the papers in the cause before he recommended to the parties the terms of adjustment— though he had only partially examined the books &c. of the firm)—the said recommendation of the' commissioner, and also the representation of Osborne, (which was not true, if it excluded the profits on the manufactured tobacco shipped to California,) the administrator acceded to the recommendation of the commissioner.

The administrator was entitled to a full and truthful disclosure from the appellees; and they were bound by the sacred obligations of trust to a dead man’s estate, to make a truthful disclosure. It was made under the sanctity of an oath; and the plaintiff, upon the faith of it, accepted the terms which were recommended. It will be remembered that the want of candor in other representation's and disclosures was not then known. The *plaintiff’s intestate had died suddenly, and left no trace or evidence of his relation to the business of James Chieves, or of his just demands against the firm. They refused to allow the plaintiff access to their books, correspondence, &c., to obtain information ; but undertook to give him, personally, such information as they chose. And he had to file his bill in chancery against them. Mr. Osborne, with his answer, filed an account as an exhibit, showing a balance of $23,999.72, of which he says: “This respondent avers that said account is a true abstract of said Gary’s account on the books of the firm, and respectfully submits that the plaintiff is not entitled to any further account, and certainly is not entitled to the production of any of the books and papers of said firm, unless he can by proof or affidavit'lay the foundation for the belief that said books and papers would, if produced, establish said account to be erroneous.” Of this account Mr. Chieves says: “The account filed with the answer of the defendant Osborne is made up from the books, and is a true and correct account of the credits to which Gary is entitled, and of the sums of money with which he should be charged, and. shows truly the balance due him, and is adopted as part of this answer. ’ ’ Yet the commissioner, in stating an account from their books, shows a balance of $55,281.50, which he reports to the court, and which is confirmed by the court, without an exception. Afterwards, in the statement of the subsequent accounts, Mr. Chieves exhibits an account of the transactions of 1859, showing no profit, but a loss of $1,721.68 for that year. Yet the commissioner reports a profit of $9,569.03, exclusive of the profit on the tobacco shipped to California, which is confirmed by the court; and we think correctly.

If these exposures had been made before the agreement in question was entered into by the plaintiff, they would *have been sufficient to throw him upon his guard. But they were not; and he having no evidence in his possession, and relying upon the appellees for information, if they misled him into a contract, by uncandid disclosures, to the wrong and injury of his intestate’s estate, the court is of opinion that they should not, in conscience and equity, be allowed to take advantage of it.

The court is therefore of opinion that there is no error in the decree of the Circuit court, and that the decree of the District court, so far as it reverses it, is erroneous. Bet the decree of the District court, so far as it reverses the decree of the Circuit court, be reversed; and the decree of the Circuit court be affirmed; and the cause be remanded to'the Circuit court of Petersburg, for further proceedings to be had therein, in conformity with this opinion.

Decree of District court of appeals reversed.  