The bill charges that the defendants have obtained from the complainant two powers of attorney to convey each ten shares of stock in the American Screw Company, while he was in a very weak state of mind from attacks of epilepsy, by charging him with purloining, or converting to his own use, certain property from the defendant's grocery store where he was clerk, and by working upon his fears by confining him in charge of a police officer for a long time, and telling him that they had proof of the charges, and by other means of undue influence and duress.
It seems that about eleven to twelve o'clock on the 8th day of April, A.D. 1867, the complainant was approached in the store by a detective police officer, and asked to go up-stairs, and charged with this offence, and told that he must be taken before Judge Randolph at the Police Court; and was detained up-stairs, with the exception of a few minutes, until after ten P.M., when the powers to transfer the stock were executed. He was not suffered to be out of sight of the police officer but once, when he entered his father's house to get his stock certificates, and then but for five or ten minutes.
The answer of H.S. Hutchins admits the execution of the powers, admits substantially the detention of the complainant by the police officer, the charges made, and that they did tell him that they had proof of them. It denies that the complainant was arrested or under duress, but alleges that he admitted that since September, 1866, he had fraudulently taken from the store about five thousand dollars' worth of goods; and that he voluntarily and of his own accord, and to prevent exposure, executed the powers, one to transfer ten shares (claimed to be worth $5,500) absolutely, to cover the defalcation he admitted, and which shares have been transferred under it to said Hutchins; and another for another ten shares of the same stock to be held as security for any further defalcations that might be discovered. No writing or memorandum was given to him to show the object of the transfer.
The defendants allege that early on the morning of said 8th *Page 181 April the complainant was detected in sending away from the store a keg of butter and a ream of paper, by a person of the name of Cozzens, and that the sales were not entered on any book. It is sufficiently proved that the butter was not good, but rank; but there is considerable conflict of testimony as to its age. The defendants further say, that when charged with it he at first denied it, and then stated that he had marked it on the wall, as it was to be paid for in a day or two, but no such mark could be found, and that he said he had a memorandum of it, but that could not be found; that the complainant had been allowed at his own request to open the store in the morning; that the clerks had been forbidden to trust Cozzens, and that there is but one entry of morning sales on the cash book between April 1st and 10th, and that is on April 6th. The officer who testifies, recollects nothing said about any mark on the wall.
It is alleged, too, that the marks on the butter tub were erased, and that such was not their custom; and on the other hand evidence is offered to show a practice among dealers to erase the marks on those goods which they have bought from another dealer in the same city.
No evidence is adduced of any sales of goods by him to any other than Cozzens, and there is evidence that the other clerks sometimes sold to Cozzens; that some mornings sales were returned to the book-keeper, and that Cozzens sometimes paid for the goods he bought, the same day or the next. But Cozzens was in debt to Hutchins. Cozzens testifies that he bought goods there for himself and others; that he bought of the others as well as of Anthony, and it would seem mostly damaged goods; that he bought part for cash and part on credit; that his indebtedness would average $75 to $100. Mr. H.S. Hutchins testifies that Cozzens told him that he divided the proceeds of these sales with Anthony; if so, he was a co-conspirator in the fraud. Yet when Cozzens is examined, he is not asked whether he ever made such a statement; he testifies that he never bought any goods of the complainant but what he paid for, except this tub of butter, and that he was to pay for in a few days, and that the butter was so poor he could not sell it. And Cozzens's testimony stands substantially uncontradicted, and no attempt has been made to attack his character for veracity, or to show any course of dishonest dealing. *Page 182
Apart from the alleged admission made by the complainant while detained up-stairs by the police officer, the evidence against him is very slight indeed. It is alleged in the answer and in H.S. Hutchins's evidence, that he admitted that he had been taking goods from the store ever since September, 1866, and to an amount of about $5,000. Mr. C.P. Hutchins puts it that he had been taking goods for a longer time; indefinite, but more frequently since his return from New York in November. And Potter, the officer, says he admitted he had been taking for a year. Putting it at a year (and in November and December he had been absent), and the allegation or admission that he had taken $5,000 from a store where the evidence is that for a long time the stock on hand had not been over $3,000, is absurd. And if he made such an admission, as they say he did, it may well be taken as evidence, in connection with other circumstances, to show the state of mind he was in.
When first taken up-stairs he denied the charge; he denied it in the present bill, which was filed in five days after, and Dr. Mason, who attended him for two or three weeks in an attack of epilepsy the latter part of April, says that he became raving and beside himself, and that "during his wandering he constantly referred to the difficulties between himself and Mr. Hutchins. His accusations against him seemed to be the constant subject of his thoughts, but throughout the whole he constantly asserted his innocence. This occurred so often that I took particular notice of it."
It is claimed by the respondents that when he admitted the taking, he gave as a reason for it the expenses of his sickness in New York, which he stated amounted to $800 or $1,000. His brother testifies that these expenses, giving items, did not amount to $200.
It is proved by statements made by the respondents themselves to other persons, that about one to two P.M. on that day he was in so excited a state (one says "in a terrible state"), that they gave as a reason for not letting him go out that they were afraid he would throw himself into the river, or kill himself. And when it is considered that he was confined in company with an officer, as stated, for more than ten hours before the powers were executed, it seems almost impossible to believe that the transfers were *Page 183 voluntary. He was possessed of a comfortable property, was not dependent on his employment, and it is alleged and not denied that at this time he had on hand unexpended dividends of $400. No expensive habits, except drinking, are charged against him. It is admitted that the relations between him and his employer were extremely confidential; that they were good friends. He had been in the store for a considerable number of years, nine or more, at a salary which was once fixed at $400, and which the complainant alleges so continued. Mr. Hutchins indeed testified that he expected him to serve for what he chose to give him, because he did not expect constant employment, meaning, as he says, that if at any time he asked for five dollars, he should give it to him. The books show, however, goods charged to him of about $500, and cash charges of $1,100, which it is not contended were paid for anything else but his services. And it is alleged that the complainant had several times loaned money to his employer, the last time a sum of $200, in June, 1867, and that the respondent, H.S. Hutchins, was at this time (April 8) in debt to the complainant therefor. The answer does not deny this, but claims that $150 of the latter sum had been paid; but on the other side it is claimed that this was paid on account, and it seems that it was charged on account. The bill alleges that the respondent was in debt to the complainant in from one to two thousand dollars, besides wages. The respondent admits he at one time borrowed of the complainant one thousand dollars, but paid it in a few days. And there is evidence put in to show that for some time the books had been loosely kept. The respondent says that when he came to examine them in order to settle up, he found errors to the amount of some thousands of dollars. And the inconsistencies in the testimony and arguments are numerous. If he admitted his offence within an hour, and voluntarily offered to convey, why wait until ten P.M.? Why not have the transfer made in the company's books while the office was open? And they began to suspect him in April, and yet on the 6th of April they paid him the sum of $150.
That he was subject to attacks of epilepsy is not denied, and that in the November preceding he had had a severe attack in New York, from which he was a long time in recovering. And very soon after the execution of these powers, he was severely *Page 184 attacked again; we have the testimony of the physicians. And what perhaps is of more value, we have the testimony of Mr. Foster, a neighbor in trade, who says that he saw him the very morning (April 8) before business hours, under excitement, and that he had not considered him competent for business for months. And the statements of the respondents themselves as to his state of mind, shortly after he was charged with the offence, have already been referred to. The witnesses on the other side only testify that they had seen nothing to indicate insanity or an unsound mind.
The complainant has put in evidence to show that the owner of the store had been a long time in embarrassed circumstances, that his credit was bad, that he was very often obliged to purchase of his neighbors to supply his customers, and that at or about the time when these charges were made he had discovered that he was $40,000 and more in debt.
All of which, if so, may account for the excitement on the part of the respondents, and for a disposition on their part to exaggerate any suspicions against Anthony.
Decree. That the powers of attorney be set aside as absoluteconveyances, but remain in force as security for suchindebtedness of the complainant as may be hereafter established.