That as a therefore, the defendant waived transferred all his interest in the said Chang Ssu-ho Gardens including stock on hand, furniture, accounts, his interest in and to various large sums of money which would within. a short time be paid to the proprietor of said Gardens for gambling and other amusement privileges, and Plaintiff in consideration' of this avd other matters undertook and assumed all the liabilities at that time unpaid of said' co-partnership which plaintiff at that time knew to That Defendant herewith denies ch and every allegation set forth in paragraph 5 of said Petition not herein specifically admitted:
mdatit answering the allegation set forth in paragraph 6 of said petition denies each and every allegation suid paragraph aid alleges all facts to be as set forth' in paragraph 5 of this answer .—And defendant further answering the petition of this plaintiff denies that said plaintiff was not aware or could not by reasonable diligence have made hi self aware at said time of the liabilities which 5 and defendant further alleges that plaintiff at that time anid in order to obtain the full benefit of the sum of money as set forth in paragraph 5 of this answer for himself readily undertook and agreed to pay all of said liabilities which he now seeks to repudiate by.this' petition herein. And defendant. further denies that any false or fraudulent representations were at this or at any time made by him to said plaintiff ae to liabilities of said ce-partnership, and denies each and every allegation as sot. forth in said paragraph except the allegation that the holders of claims against the co-partnership are now demanding payment of said plaintiff.
8.—And further answering the petition of said plaintiff defendant denies each and every allegation set forth therein not specifically herein admitted, Wherefore. defendant demands judgment against the plaintiff that said petition be dismissed with costs.
The Referee delivered the following representation and' fraud and the: burden of proof is plainly upon - Mr. Evans 'The testimony given by the parties; themselves is utterly at, variance in all. essential_particulars,.and' as. there. were. no kno supporting -witnesses. whey material facts, I am compelled in reaching a conclusion to weigh: the probabilities and determine the credibility involved.
'Mr. Evans charges that the sale or transfer of the Mooser one half interest in the Chang Ssu Ho Gardens. was effoct-3 presentation, as to. the boycott on things and persons American, and that s a matter of, fact' no such ition as that stated by Mr. Mooser Tu consequence of this Mr.
leges that the boycott and contingent matters of interest to Mr. Mooser were used to veil the real intention of [escaping from an. unprofitable taking. Further it is alleged that Mr. Mooser wished not only to escape Té- sponsibility but also' to enter another field of work. And finally i that fraudulent mis repre: the finances of' the partnership was made. It will' suffice. to say that Mr. Mooser's denial to each and all of these allega-tious is general Taking up the first of these general allegations, it isa well-known fact that the boycott process was applied. to the management "of the: gardens, I'? porsonally am familiar with the dotal furthermore it is a matter of. public record. From all evidence; public: and private, Mr. Mooser was entirely justified wishing to withdraw on that account. "'There is not sufficient evidence' that the agreement between Mr. Sundow and Loot and' George Mooser had anything to do with the withdrawal of the from the: Gardens, The matter ttle consequence anyway under the f as stated and not disproved.
There remains the principal allegation that the signature of Mr. Evatis tothe eledse of George Mooser from all liabilities in connection with the Chang Ssu Ho Gardens pactue was accomplished by' fraudulent' representation. In' con-sik ing ti it must be remembered that Mr: Evans had_ expericice with the property before Mr. Mooser's "connection with the enterprise; that' Mr. Evans' ro-presents himself as'i business man' and acquainted with business affairs; that he had an. equal right to know to a certainty what the condition of the bu that lie was cognisant of the improvements that had'bveu made and that he lind a. more or less accus rate knowledge of' probable future nue, and especially that' to accrue ile of the gambling privilege an g the races, In view of these facts isnot tobe believed that Mr, Evans would sign stich an' ironclad instrament asthe release unless ho was well sssurod el ympathiy or generosity' has that he'could not lose' by doing 60.,° No
been suggested to account fur Mr. 'Evan's action. It is*broadly averred that lie, believed the the stitements of "Mr. Mooser and" accepted findl an alleged showing of the ' books. such "picis Aloe he should' be' held responsible' for his' acts, "because as' business man he should have known. the books were properly kept and would show accurate results. That they wore not properly kept, through negligence us to stock accounts, ete. is apparent, aid. of that fault both partners were cognisant. [te is probable that Mr. Evans wa what surprised at the extent of the liabi-lives and it' is equally probable that Mr. Mooser was. also, but, }whictr' prevailed between' the partners neither should have been any result.
The patent fact remains. that. Evans signed, g..valid. release, -2Lyan fi ied,' to] misrepresentation,
Text read from the printed page and cleaned; old type leaves the occasional error.