(dissenting). I am unable to concur in the proposition that in case A. is induced to sell goods to B. by the fraud of the latter, who is insolvent, and purchases with a preconceived design not to pay for them, and lie sells the goods to others on credit,—negotiable paper not being given for the price,-—and the sale is rescinded before the subsequent purchasers pay for the goods, the price agreed to be paid cannot be reached by the defrauded vendor. It seems tome that the prevailing opinion rests on two erroneous assumption (1) That the vendees of 0. Burkhalter & Co. were purchasers in good faith and for value; (2) that the referee ordered a general judgment against the assets in the hands of the assignee for the benefit of creditors. The purchasers from C. Burkhalter & Co. were not purchasers for value. The referee found:
“And I further find that the said sales by Burkhalter & Co. were made to-their customers upon terms of credit, some of which had not expired at the-time of the making of the said general assignment.”
This fact was stipulated on the trial, and it was stipulated that, the avails of many of these credits came to the hands of the assignee;, One who purchases on credit, and neither parts with anything nor gives negotiable paper for the price, does not become a purchaser for value until he pays the purchase price. Bump, Fraud. Conv. (2d Ed.) 483, and cases cited; Pom. Eq. Jur. 750 et seq., and cases cited. The referee did not order a general judgment against the assets in the hands of the assignee for the benefit of creditors. Beheld that the assignee was liable to account to the plaintiff for “the proceeds of any of said goods and merchandise, in whatsoever form such purchases may be, and to the extent that such proceeds-can be traced and identified, as may have come or may hereafter-come into their possession or control.” The interlocutory judgment followed the decision, and ordered an accounting of the avails of the sugars sold on credit which came into the assignee’s hands. The-plaintiff did not recover, nor did it seek to recover, sums not directly *488traceable to the assignee’s hands, and arising from the sales on credit. After the entry of the interlocutory judgment, the litigants stipulated:
“ (2) It is further stipulated that the amount for which the said defendant, •Charles H. Fancher, assignee, etc., is compellable to account to this plaintiff under the said interlocutory decree, equals, in all, the sum of $10,606.62, and that the amount of the final judgment to be entered against the said Charles H. Fancher thereunder equals the said sum.”
This stipulation was entered into to avoid the expense of an accounting, and upon the assumption that, if the interlocutory judgment was right, the plaintiff was entitled to recover that sum. The defendant, having made this stipulation, cannot now urge the form of the judgment as a ground for reversing it. I think the interlocutory judgment was right, and that it and the final judgment should , be affirmed, with costs.