Selden W. Lacker et al., Appellants, v. Osman Rhoades, impleaded, etc., Respondent

Selden W. Lacker et al., Appellants, v. Osman Rhoades, impleaded, etc., Respondent. (Submitted May 22,1872; decided September term, 1872.) This action was brought to recover the value of a quantity of whisky alleged to have been purchased by defendants, William B. Rhoades and Electas B. Post, upon a credit, while they were insolvent, with a preconceived design not to pay. On the 21st day of October, 1862, said Rhoades and Post, who were partners, and doing business in Auburn, and who at the time were insolvent, ordered of plaintiffs eleven barrels of whisky, which were shipped to them from Lockport on the 24th October. The sale was upon a credit of five months. On the 24th October Rhoades and Post assigned to defendant, Osman Rhoades, all their stock in trade and property in their store, and all their' accounts, etc., he agreeing in payment therefor to pay all the debts of the firm, upon which he was liable as indorser or otherwise, and also to cancel a demand held by him against the firm. The parties immediately commenced making an inventory. The whisky arrived on the 29th October, and was placed upon the inventory, taken possession of by said Osman, who sold it and appropriated the avails. The latter paid the secured debts as agreed, which amounted to much more than the value of all the property. At the close of the evidence the defendant moved for a nonsuit, which was denied. The General Term set aside the verdict as to Osman upon the ground that the motion for nonsuit should have been granted. Held, that the motion was properly denied; that the whisky was not transferred by the assignment, and was delivered to the assignee without consideration. He was not, therefore, a bona fide holder, and was liable. Cox & Avery for the appellants. Warren T. Worden for the respondent. [MAJORITY — Earl, C.,] Earl, C., reads for reversal. All concur except Lott, Oh. 0., dissenting. Order reversed and judgment ordered for plaintiffs upon the verdict.