| Ill. | May 14, 1881
delivered the opinion of the Court:
The only point in dispute in regard to the question of the fact of a sale by William S. Goembel to Samuel Arnett, is whether the terms of the contract were to be reduced to writing, and Samuel was to give his father, Jacob, as surety for the payment of the $2000 to Goembel, and that Samuel would pay the firm debts. William S. Goembel asserts that this was the contract, and Samuel Arnett denies it. It is not controverted that Goembel went out of the store, and left Arnett in possession as sole owner, and that Goembel thereafter worked a month for Arnett, under what was assumed to have been the previous contract. This strongly corroborates Arnett. Why was Arnett allowed to go on selling the goods, and why was Goembel working for him as clerk, if the contract was not completed?
We can not say, under all the evidence, that the circuit court erred in finding the title to the goods passed by the contract to Samuel Arnett. That contract did not create or reserve a lien for the creditors, generally, of the firm.' The promise of Samuel Arnett to pay the debts of the firm created only a personal obligation, and not a lien, and it did not, of itself, prevent his subsequently selling the stock of goods for the payment of his individual debts. Hopgood et al. v. Cornwell et al. 48 Ill. 64" date_filed="1868-09-15" court="Ill." case_name="Hapgood v. Cornwell">48 Ill. 64; Ladd v. Griswold, 4 Gilm. 25.
It is not and could not with any plausibility be claimed that any express trust in favor of partnership creditors existed in respect of the goods.
Treating the bill as a bill to set aside a sale on the ground of a fraudulent preference, it clearly can not be maintained, for no judgment at law has been obtained by either William S. or Jacob Goembel. Stone v. Manning, 2 Scam. 530; Bigelow v. Andress, 31 Ill. 322" date_filed="1863-04-15" court="Ill." case_name="Bigelow v. Andress">31 Ill. 322; McConnel v. Dickson, 43 id. 99. On this ground alone, therefore, the decree below should he affirmed.
We may, however, not improperly, add, that we would not feel inclined to disturb the .decree below if the case turned upon the sufficiency of the evidence to establish a fraudulent preference. The consideration was unquestionably sufficient to sustain the transfer. We entertain no doubt that Samuel, in good faith, owed Jacob more than the value of the goods transferred. He had a right to prefer "him to others, and it was the exercise of this right of preference that was manifestly alluded to in the loose remarks proved by witnesses of the intention to “beat” or “get ahead” of others, and not the doing of any act deemed fraudulent in law. We think the fair preponderance of the evidence fails to show that Samuel remained in possession of or retained a secret interest in the goods after the sale to Jacob.
No useful purpose will be subserved by discussing the evidence on this point at large, and we therefore forbear further comment.
The decree below is affirmed.
Decree affirmed.