The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 778
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250 FEDERAL REPORTER
not apparent how he afterwards got it from Martin, at least out of that
deposit, since the evidence shows it was practically all checked out on
that day, and went to sources from which Baur probably would not
benefit.
It is urged that Baur might have eot the $10,000 through Scully
paying it to him; the theory being advanced that with the $10,000,
which it is contended Baur thus received out of the Martin commis-
sion, the $125,000 payment was completed, and that, through Baur's
agreement to advance Scully's $10,000, the Scully subscription being
thus accounted for in the transaction, Baur would actually receive his
$10,000 when Scully paid him, and thus the full $25,000 of compensa-
tion paid, as Martin says was his agreement with Baur. But under
the evidence the trouble with such a theory is found in the fact that
the cashbook of the Gould Mines Company, kept by the bookkeeper of
the Mohrs, shows that Scully paid his subscription to the corporation
itself, so that, if the cash book shows truly, then, if Scully also paid
Baur, he paid twice, and this, of course, we must assume he did not
do. Under date of February 26, 1906, in the cashbook appears the
cash payment of the subscription as aforesaid of every one of the
subscribers, except Scully. Nothing appears under his name until
February 16, 1907, when a cash payment from him of $1,000 is shown,
and on the following May 31st appear the items of receipt of "interest
on Scully note $513.16," and "A. B. Scully a/, subscription $9,000."
It is evident that, if the first payment on the mine was in part made
up by the $10,000 as constituting payment of Scully's subscription,
then Baur did not receive it as compensation, and, if thereafter Scully
paid his subscription direct to the company, as the company's books
show, then it nowhere appears that Baur ever got the $10,000, not-
withstanding Martin's unqualified testimony that it was paid him.
As in the case of Woolman and Baur, Scully also was dead before
this action was brought, and there is nothing in evidence of his ac-
counts or dealings to show what the facts really were. The evidence,
even Martin's, utterly fails to show that he received the $10,000, and
Martin's attempt to connect him with it serves only further to discredit
his testimony with reference to the $15,000, and the subject generally
of compensation to Baur.
While it is easily possible that Baur did receive the $15,000 in part
payment of compensation to him for putting through this deal, it is
also reasonably possible under the evidence that it was received by
him for a different purpose, which did not involve him in the alleged
breach of faith, and the alleged fraud upon his associates in the trans-
action. If he could have testified, his failure to do so under the cir-
cumstances would in itself have afforded probative inference un-
favorable to his interest. But his death, far from throwing down
the bars and permitting adverse inference, makes it necessary to estab-
lish his alleged fraud, not by presumptions and inferences, but by sub-
stantial proof. Essential links cannot be supplied by conjecture or
probability. From careful perusal of this record and consideration
of the elaborate briefs we are satisfied that there does not appear such
credible and reliable' evidence in support of the fraud charged, as to
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/793/: accessed April 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.