The requests for findings and conclusions having to do with evidence and its admissibility have been considered, and a review of the evidence upon which the findings are based confirms the conclusion that such evidence is fully admissible. Most of the pertinent letters, memoranda and documents made by the individual defendants or by the officials or employees of the corporate defendants and found in their files were identified or explained by their authors from the witness stand. The minute books, by-laws, voting trust agreement, forms of offering letters, memoranda of instructions and inter-corporate proceedings, negotiations, reports and the communications between officials of the defendants having a direct bearing upon the joint actions of the defendants in the formation and consummation of the plan, were all taken from the corporate files and identified and explained by one or more of the officers of a defendant corporation. Their testimony further described the relationship of the parties, the sending of letters, warrants, trust certificates, and the circumstances of the initial financing and subsequent borrowings, and established the pertinency of the documentary evidence to the issue as to the existence of a combination of persons to do the acts here in question.
The greater portion of the evidence relied upon, in addition to the comprehensive narrative testimony given, included the official corporate documents and the memoranda and letters of Messrs. Lee, County, Morris, Atterbury, Cooke and the executives and other officials connected with the operation and management of the corporate defendants, and which related expressly to the matters involved in the complaints. Other unidentified memoranda, reports, investigations or expressions of opinion made by persons not identified or connected with the corporate defendants have not been accepted as the basis of any findings and conclusions, and unless a direct issue is raised as to particular exhibits or offers there would seem to be no purpose served by an express ruling here upon the admissibility of such evidence.
The rules of evidence are designed to enable the court to base its findings of fact as much as possible upon the sworn testimony of witnesses. The statutory rules provide that "* * * any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction, occurrence, or event, if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. * * *" (Act of Congress of June 20, 1936, C. 640, Sec. 1, 49 Stat. 1561, 28 U.S.C.A. § 695.) The Pennsylvania Business Records As Evidence Act, (May 4, 1939, P.L. 42, 28 P.S. Pa. § 91b) relating to such evidence provides: "A record of an act, condition or event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
From the testimony given as to the official acts of the defendants, the methods of corporate and inter-corporate dealings and of the memoranda and records kept, there can be no doubt that the writings and records upon which findings are based were made in the regular course of the defendants' business, that they were part of the official files relating to the particular transactions, and that it was the business practice to maintain such records. The custodiana or other qualified witnesses have identified such evidence as to its character and substance and established its authenticity to the satisfaction of the court.It would also seem that such evidence is admissible as to all of the defendants in view of the finding that there was a combination between them for the purposes described. "It depends upon the principle that when any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissible as primary and original evidence against them." Hitchman Coal & Coke Co. v. Mitchell, 1917, 245 U.S. 229, 38 S. Ct. 65 72, 62 L. Ed. 260, L.R.A.1918C, 497, Ann.Cas.1918B, 461.
The fact that much of the evidence was identified or given by defendants or officials under cross-examination is immaterial, such practice being sanctioned by the Pennsylvania acts, May 23, 1887, P.L. 158, Sec. 7, 28 P.S.Pa. § 324, March 30, 1911, P.L. 35, 28 P.S.Pa. § 381, and the present Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The issue raised as to whether the officials and stockholders of the corporate defendants are competent to testify against the decedents' estates by reason of the Pennsylvania act of May 23, 1887, P.L. 158, becomes unimportant because of the application of the statute of limitations to the actions against the individual defendants and needs no discussion.
Chief Justice Marshall's statement that "Equity delights to do complete justice * * * not by halves" expresses the feelings and desires of a chancellor, with the responsibility of interpreting the motives and purposes of his fellowman in a matter of this kind. "Complete justice?" What a noble purpose and how inadequate the instrument. For approximately eighty full days of court proceedings the parties to this cause appeared on the witness stand, men and women on both sides of the highest character, sworn to tell the truth. It is the chancellor's firm belief that so far as the actions of the parties are concerned there is not one important item of available truth missing. In giving their testimony not a word, not a gesture, not an expression of voice or of emotion but had its meaning and significance. The complainants told their stories and produced certain admittedly relevant records. The defendants gave their testimony and did likewise. Chief counsel for the complainants, with a sportsmanship and fairness most impressive, on several occasions disclaimed any idea of imputing sordid and dishonorable motives to the defendants. But the pleadings on record in the files of the court charge fraud and conspiracy. These charges stand out for all time as charges of personal dishonesty. The disclaimer of such by a fair-fighting counsel for complainants may never be read. In order to do complete justice and not by halves it becomes the duty of the chancellor to make a clear and straightforward statement on the subject of personal morality. Reference has been made in this opinion on several occasions to the effect that the defendants sought no sordid gain for themselves or gain that would not be secured to every other stockholder. But a more complete statement is required. It was evident from the very manner and attitude of the defendants on the stand that to them their personal honor was of more importance than any other feature of the case. Those defendants, living and dead lived their lives in our midst. They were well and favorably known. Their lives and actions had been such as to merit the complete confidence of their fellow-citizens. For their benefit and for the information of all the chancellor wishes to make plain that the findings of fact and conclusions of law in this case in no way cast any improper reflection on the personal honor and integrity of the defendants. They are and were of the generation immediately ahead of us. That was the generation of those whose fathers had fought in the Civil War, that came on in the period after the Civil War, and who developed this country's resources; that brought us up from an agricultural country, dependent upon Europe for so many things, into a manufacturing and industrial Nation, largely independent, selfsufficient and self-reliant. They were of the same mould as the men and women who boldly launched out into the prairies and won the west, and pushed the frontiers of our country across to the beaches of the Pacific. These men by their courage, by their resourcefulness, yes, even by their very boldness at times made this country what it is today, the good with the bad. No American can deny that the good predominated and that as a whole they served us well. We can hold them responsible for a mistaken zeal at times in their loyalty to their corporate groups. We can find them misconstruing the fine purposes and objectives of the corporate structure and at the same time, as under the facts of this case, find these predecessors on the stage of our National life, to be true men, worthy of our respect. We can even express the hope that those who follow them may do as well.
The chancellor wishes to state this not that it may minimize the effects of, and conclusions to be drawn from his findings, but in order that there may be no misunderstanding as to what these findings really mean. Humanity is prone to criticism. It is easy for us to impute improper motives. Prejudice causes us to look with jaundiced eye at the weaknesses of those that the world calls "successful". This destructive criticism where no immorality is present works real harm to organized society and great injustice to the individual unjustly charged. The chancellor hopes no unkind conclusions will be drawn from these findings because he asserts with all positiveness no such conclusions are warranted.
He would like to give expression to one more thought.Perhaps complete justice does not require it but he feels that he would be ungrateful if he did not mention it. He refers to the attitude of counsel in this case. Throughout all the weeks of this great trial counsel on both sides gave an illustration of the highest performance of legal duty. They conducted the case with the highest ability and skill. To each and everyone the chancellor wishes to express his appreciation and gratitude for the help given during the trial and in the briefs furnished. To one of counsel who represented his deceased father the chancellor wishes to say that the eloquent appeal, seldom equalled or surpassed, coming from a son in defense of his deceased father and of his father's friend, left an impression that will remain during the years that are to come.
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