404  APPENDIX  B
settled  up.  The  result  was  that  an  agreement  came  to  be  made
between  Mr.  Bennertz  and  the  Chinese  in  which  the  sum  of
Tls.25,000  was  paid  for  the  stock-in-trade  which  he  had  there,
and  various  other  things  which  are  enumerated  in  this  agreement,
and  he  was  to  clear  out—all  connection  between  him  and  Changsha
was  to  cease.  I  consider  this  agreement  was  made  personally
between  the  Chinese  and  Mr.  Bennertz—not  Bennertz  &amp;  Co.,
but  Mr.  Bennertz  himself  and  the  parties  in  Changsha  who  paid
him  the  Tls.25,000.  I  need  not  go  into  the  different  terms  of
this  agreement,  but  I  think  what  I  have  already  stated,  and  the
document  itself,  will  enable  any  one  who  comes  to  take  the
accounts  to  see  how  the  money  should  be  applied.  I  think  there
is  only  one  other  thing.  I  think  that  the  Tls.25,000  was  intended
to  cover  not  only  the  debts  which  Mr.  Bennertz  himself  had
contracted  in  Changsha,  both  before  and  after  the  time  that
this  partnership  was  dissolved,  but  I  think  it  also  was  intended
to  clear  up  any  debts  which  had  been  contracted,  and  which
might  still  be  outstanding  to  the  partnership  while  it  existed.
Therefore,  assuming  for  the  moment  that  the  Tls.25,000  was
more  than  enough  to  cover  all  claims,  then  I  think  the  Tls.25,000
should  be  applied  in  wiping  them  all  out,  and  any  balance  of
the  Tls.25,000  would  have  to  be  considered  as  belonging  to
Mr.  Bennertz,  subject  to  any  contracts  which  he  might  have
with  other  parties.  The  Tls.5,200  stand  in  a  different  position.
Assuming,  as  I  say,  that  the  Tls.25,000  was  sufficient,  that
Tls.5,200  definite  compensation  would  remain  to  be  divided
between  the  two  parties.
Now  as  to  the  terms  of  the  contract.  They  appear  to  me
to  be  embodied  in  this  agreement  of  July  4,  1904,  in  so  far  as
they  were  at  that  time  put  into  force.  Mr.  Gilmore  was  so  far
as  was  possible  made  a  partner  in  the  firm  of  Bennertz  &amp;  Co.  As
a  matter  of  fact,  that  firm  never  having  come  seriously  into
existence,  the  fact  that  he  was  made  a  partner  in  it  did  not  give
him  any  claim,  because  Bennertz  &amp;  Co.  having  no  property,
there  was  nothing  for  him  to  have  a  claim  to.  But  the  partners
—the  plaintiff  and  the  defendant—did  carry  on  business  under
the  form  of  Bennertz  &amp;  Co.,  and,  from  all  the  documents  before
me,  there  is  no  doubt  they  were  carrying  on  business  in  partnership. ­
  There  is,  or  there  might  be,  in  consequence  of  this  sum
for  disturbance,  something  to  be  divided,  and  it  will  be  divided
on  the  terms  on  which  the  partners  agreed  to  trade.  We  have
the  definite  statement  here  that  of  whatever  profit  Henry
Bennertz  touched,  he  should  pay  25  per  cent,  to  the  plaintiff-There
  is  the  suggestion  that  an  agreement  was  come  to  on
J  une  29  that  the  sum  of  one-third  instead  of  one-quarter  should
be  paid  to  Mr.  Gilmore  out  of  this  sum  paid  as  indemnity,  but