(dissenting.) I cannot concur in the conclusion arrived at by Mr. Justice Lawrence in the disposition of the appeal in this case. It seems to me that the fact has been lost sight of that no matter what may have been the fraudulent intention of the seller of the goods in question unless the purchaser participated in that fraudulent intent or was aware of its existence his title to the property purchased cannot be impeached, and it is not sufficient to establish facts and circumstances which may tend to establish a guilty knowledge, but which are equally consistent with the innocence of the accused party, because, under such circumstances, the meaning must be ascribed to those facts and circumstances which accords with innocence rather than that which imputes a criminal intention. Morris v. Talcott, 96 N. Y. 100-107; Baird v. Mayor, 96 N. Y. 567-592, 595. It is also the rule that the fact of the existence of a fraudulent intent upon the part of the seller simply throws the burden of proof upon the purchaser to show that he is a bona fide purchaser for a valuable consideration. Starin v. Kelly, 88 N. Y. 418. There is no question but that the proof establishes afraudulentintent on the part of the seller, but it seems to me that there is an utter absence of proof going to show that the purchaser was aware of it, or that he in any way participated in the fraud. It is claimed that there has been shown inadequacy of price as an indication of fraud upon the part of the purchaser; but it is to be observed that, although the learned court found that the goods were worth $15,000, there is no proof to sustain such finding, or thát the purchaser was in any way aware that there was such a gross inadequacy in the consideration as would necessarily excite his suspicion of the good faith of the seller.
It is true that the appellant testified that the appraiser who examined the goods appraised the same at $15,000, but it is shown, in connection with the other evidence, that this appraisal was based upon the assumption that the goods should be sold in the ordinary way, and that could not be done until the next season, the expenses of carrying the goods over being quite large. It is true that the appellant had never been in this business before; but this fact did not preclude him from buying a stock of goods which was offered him for sale if he could purchase them in good faith, and at a price upon which he might make some profit. Trade and barter depend upon the prospect of profit, and if a man cannot purchase goods at a lower price than he can hope to sell them for, then trade must stop. That seems to be the theory upon which it is claimed that the appellant paid an adequate consideration for the goods in question. But it is said there is some evidence that these goods were worth $20,000. This depends upon the evidence of Mr. Campbell, who knew nothing whatever upon the subject. He testified that he stated to Curtis that he understood the "goods were worth some $20,000, and that the sale was wrong; that it ought not to have been done; that it would be an improper thing to do, as it would be a fraud upon the special partner; and that he understood the sale was to be for $3,000 in cash, and $7,000 in notes, to run 3, 6, 9, and 12 months. And in another place he testified that he told Mr. Curtis that he thought it an improper thing to do; that it was a fraud on the creditors and on Miss Brophy, the special partner. The fact *796that the goods were not worth any such sum is established beyond all question, and the alleged statements of Campbell are contradicted, by every witness who was present on that occasion. And it is to be observed that the amount of credence to be placed upon Campbell’s evidence is very much shattered by the fact that, knowing that the purchase" price of these goods, as he understood it, was to be $3,000 cash and $7,000 in notes, he made an affidavit in respect to this matter, in which he stated that the defendant Anglim, the seller, told him that the stock of goods was worth about $20,000, and that he intended to sell them to Curtis for $3,000 in cash. And when questioned in regard to the fact of the notes, and his omission to mention them in that affidavit: “ Question. Was that intentionally left out? Answer. I don’t know.”
How much credence is to be placed upon the evidence of a witness who endeavors, apparently intentionally, to mislead the court in regard to the consideration that was paid, in so manifest a manner, it is not necessary to discuss. It would be rather unjust to compel a man to lose $4,000 of money which he had put into an enterprise upon evidence of such a character, when such evidence was denied by credible witnesses. It seems to me that it is apparent that the discussions which arose at Campbell’s office were as to the right of the general partner .to sell this stock without the consent of the special partner. It appears from the evidence that as soon as Mr. Curtis, the purchaser, knew that there was a special partner, he desired to see the special-partner, or her counsel, and it was only when he was advised that he could purchase these goods from the general partner, and get a good title thereto, that he perfected the purchase. He went into possession immediately, and the .seller went out of possession, and never had anything further to do with the business until more than a year thereafter, when he was employed by Curtis, pursuant to the order of the court entered upon the consent of all the parties. That Curtis may have known of the insolvency of Anglim, the seller, may be true. But, even if he did, it in no way impeached his title. As far as the evidence shows, Curtis may have believed that Anglim was desirous-of selling this stock of goods, although insolvent, for the purpose of applying the proceeds thereof in payment of his debts.
Whatever proceedings the seller, Anglim, took in reference to his creditors, cannot affect the title of Curtis if it was acquired in good faith. There is only one point of evidence which to my mind in any way impeaches the good faith of Curtis, and that is his testimony as to the store in Twentieth street, in respect to which he testified that the bill of sale was ready, but before it was signed Anglim says: “ ‘ There is a little store up at Twentieth Street that I have got in which there is a couple of hundred dollars’ worth of goods.’ I said, ‘ You had better put it in.’” And they added that to the bill of sale. But it seems to me that this circumstance cannot establish a fraudulent intent upon the part of Curtis in making the purchase. The payment by him of a fair consideration for the merchandise was strong evidence of his good faith, and of the absence of a fraudulent intent on his part. In order to be sufficient to overcome the presumption of honest motives in making the purchase the evidence should certainly be of a satisfactory character, and inconsistent with an innocent purpose. It is claimed upon the part of the appellant that the court erred in refusing to find certain matters of law. In this, we think, there was no error. They were arguments to be used before the court in respect «to the weight to be given to evidence, being rules of evidence rather than findings in respect to matters of law. The court is bound to find conclusions of law arising upon facts found, but nothing in the shape of argument. Upon the whole case, therefore, it seems to me that there was too slight evidence of any fraudulent intent upon the part-of the appellant Curtis to justify the court in holding the sale to him void. The judgment should be reversed, and a new trial had, with costs to the appellant to abide the event.