concurring. In this action, Steinhart'& Co., plaintiffs and appellants, seek to set aside an attachment issued in favor of Fyhrie & Co., and levied upon the goods and property of Davis & Shinnick, and to charge said Fyhrie & Co. as trustees of said property for the benefit of the plaintiffs. It appears that Davis & Shinnick were merchants doing business at Townsend, in the county of Meagher, and were largely indebted to Fyhrie & Co. Wishing to replenish their stock of goods, they applied to Steinhart & Co. to purchase on credit, and in response to their application received a request for a statement of their financial condition, which was given in a letter of September 14th. Two days prior to the date of the letter, Louis 0. Fyhrie, one of the members of the firm of Fyhrie & Co., sent a telegram to Steinhart & Co., in which he represented that Davis & Shinnick were good for the amount of merchandise ordered. Eelying upon the statement of the letter and telegram, Steinhart & Co. sold to Davis & Shinnick a bill of goods amounting to $1,317.25, which were received by them at Townsend about the 1st of October. Subsequently, and on the 30th day of October, Fyhrie & Co. commenced an action; against Davis & Shinnick for the sum of $7,641, and caused an attachment to issue against all the property of Davis & Shinnick, but which attachment was not at that time served. On the next day, October 31st, Fyhrie & Co. procured Davis, one of the partners of the firm of Davis & Shinnick, to execute in the firm name an assignment of all their property to Louis C. Fyhrie, which assignment made Fyhrie & Co. preferred creditors, and under which Louis 0. Fyhrie, as assignee, entered into and took possession of all the property and effects of Davis & Shinnick, and held such possession until *476the 6th day of November following, upon which day said' Louis 0. Fyhrie, acting for the firm of Fyhrie & Oo., placed said attachment in the hands of the sheriff, and caused the same to be levied upon all the property of Davis & Shinnick so assigned as aforesaid. On the 13th day of November, Steinhart & Oo. commenced an action against Davis & Shinnick, and caused an attachment to be levied upon the same property.
Upon this state of facts, what are the rights of the parties? There is no attack upon the indebtedness of Davis & Shinnick to Fyhrie & Oo., and no question but what the attachment in their behalf to secure the same was regularly and properly issued. The plaintiffs ask to have this attachment set aside for the reason that after the same was issued, and before it had been served by levying upon any property, Davis, one of the partners of the firm of Davis & Shinnick, went through the extraordinary performance of making an assignment of the personal and real property of the firm for the benefit of Fyhrie & Oo., without the knowledge or consent, and, for all that appears, against the wifi, of his copartner, though the assignment may have been made in his presence. There does not seem to be much doubt that such an assignment is void. Steinhart & Co. were not injured by this void assignment. Notwithstanding the assignment they might have commenced their action and had the property attached. It is not alleged that they were in any manner prevented, hindered or delayed in making their attachment by reason of the assignment. If the assigned had taken possession of the property, the assignment being void, such possession would not have hindered or delayed the levy and execution of their attachment in a proper action, in which the assignée was made a party. What reason, then, is there for setting aside the attachment of Fyhrie & Co.?' It was first in time. It was issued upon a valid debt. It was issued before the assignment, and might have been levied then. *477The property in question was levied on and taken possession of subsequent to the assignment, by virtue of this attachment. There is no charge of collusion or fraud between the assignee and Fyhrie & Co. in this matter. If the sheriff could have obtained possession of the property by virtue of the Fyhrie 'attachment, after the assignment, he might have done the same thing for Steinhart & Co. if they had caused their attachment to issue in time. It is not alleged that they were out of time, or that they were hindered or delayed in any manner1, either by reason of the assignment, or any act of the assignee or Fyhrie & Co.
Did Fyhrie & Co., by virtue of the allegations of the complaint, become trustees of Steinhart & Co.? There is nothing in the complaint to show that Fyhrie & Co. attached any of the goods that Davis & Shinnick purchased of Steinhart & Co., but if their attachment covered and included all the goods so purchased, did Fyhrie & Co. or Louis 0. Fyhrie thereby become the trustees of Steinhart & Co.? It is alleged that, in the sale of these goods to Davis & Shinnick, the firm of Steinhart & Co. relied upon the statements of Davis & Shinnick contained in their letter, and the representations of Louis 0. Fyhrie contained in his telegram.. What of it? For all that appears in the complaint these statements and representations, at the time they were made, were absolutely and entirely true, and such as those parties might have honestly and conscientiously made. The complaint does not attack the good faith of these persons in making these statements and representations. There is nothing to show that they were untrue. It is not alleged that they were false, or that they were made with a fraudulent intent. But if they were wholly untrue, and made with intent to deceive, it is” not shown that the plaintiffs were in such a position as to have had the right to rely upon them. If they knew that the statements and representations were false, they relied upon them at *478their peril. It is not alleged that these representations were false. And if they were in fact false, it is not shown' but what the plaintiffs knew it. But if the state- - ments contained in the letter of Davis & Shinnick were false,' and made for the purpose of deceiving Steinhart & -Co., the firm of Fyhrie & Oo. could not be held responsible for such statements, in the absence of any averments showing collusion or conspiracy between Davis & Shinnick and Fyhrie & Co. to defraud Steinhart & Co. In the absence of such averments, Fyhrie & Co. would not be responsible for or affected in any way by the false statements of Davis & Shinnick. Neither could Fyhrie & Co. be held responsible for a false telegram of Louis 0. Fyhrie, unless the company authorized it, which they did not. But as the good faith of the letter and telegram are in no manner attacked, we must take it that the statements and representations therein contained, at the time they were made, were true in every particular; and therefore, since the assignment was void, there does not seem to be any reason, by virtue of the allegations of the complaint, for declaring a trust in favor of Steinhart & Co., or for setting aside the attachment of Fyhrie & Co.