Under the recent decisions of the supreme court of the United States in the case of Buchanan v. Smith, 16 Wall. [83 U. S.] 277, and of the circuit court for this district in the case of Mayer v. Hermann, [Case No. 9,344,] the right of plaintiff to recover, on the facts in this ease, is clear.
The order made by the bankruptcy court on the 11th of December, 1871, only modified the injunction “so as to permit the sheriff to sell” the goods levied on, and convert them into money, and hold the proceeds of sale in place of the goods, subject to the further order of the bankruptcy court It left the defendants at liberty to have a sale if they chose to take the risk. If they should sell, the proceeds of sale would stand in place of the goods. But the plaintiff is entitled to recover the goods or their value, at his option. He asks for their value. He does not ask for the goods, and he is not compelled to take the proceeds, which are merely a substitute for the goods, if such proceeds are not the full value.
But, on the evidence, I think the value of the goods cannot be fixed at a higher sum than the $2.650 they brought on the sale. The plaintiff, who was not, at that time, as-signee of the bankrupt, but was one of a firm who were creditors, bought in the goods at the sale for $2,650, acting for the creditors generally. He says that other creditors for whom he acted had the privilege of taking the stock by paying the $2,650, but they did not, and then he took it to himself at that price. Yet he fixes its value at $6,800, by saying that that is “the price at which it would be appraised by competent parties, under partition or division, or in anticipation of a forced sale.” That is his definition of “market value.” Yet he says that in all the transaction his desire was “to prevent sacrifice,” and to have the stock “bring near its value,” and he considered he was acting by direction of the creditors, so as to -get for them “the largest possible percentage on their claims.” Charged as he was with this trust, the presumption is that he discharged it properly, and, therefore, that he obtained full, value for the goods he bid in, when Ae took them at $2,650. It cannot be that their fair market value was $6,800, and yet that he could get no more than $2,650 for them. The plaintiff is entitled to a decree for $2,650, with interest from the commencement of this suit, less a credit, on the 8th of March, 1872, of $875.39, with costs of suit.