delivered the opinion of the court.
The proper construction of the transaction between Keiler & Co. and Aaron, Jacobs & Co. is the principal question in this case. That transaction was reduced to writing. The instrument, after reciting the indebtedness of Aaron, Jacobs & Co., which had been settled by notes and amounted to about sixteen hundred dollars, proceeds thus : “ They (A. & Co.) have this day sold, transferred and delivered to said R. Keiler & Co., one pair of horses at and for the price and sum of two hundred and twenty-five dollars; one horse at seventy dollars, and two horses at forty dollars each, and one wagon at seventy-five dollars ; also a stock of merchandise in store in the town of Versailles, Morgan county, Missouri, which merchandise is purchased and taken by said R. Keiler & Co. at thirty per cent, less than its cost in St. Louis ; the price and value to be ascertained by reference to bills of purchase and an inventory of said merchandise to be taken by the partners aforesaid ; and it is further agreed between the parties aforesaid, that if the merchandise so sold and delivered shall be more than sufficient to pay off and discharge the indebtedness, that said R. Keiler & Co. shall pay to Morris Plahto, of St. Louis, the indebtedness of said Aaron, Jacobs & Co. to said Plahto, being about the sum of eight hundred dollars, and account to said Aaron, Jacobs & Co. for any balance which may remain in their hands,” &c.
The horses were delivered to Keiler immediately and the key of the store was also handed to him, and he was proceed*306ing, through a clerk employed by him, in taking an inventory of the goods, when the sheriff levied an attachment upon them. The question is, whether the transaction was a sale or an assignment, and this question is only important upon the assumption that an assignment executed by one partner of the entire effects of the partnership is void — a proposition which we do not think it necessary to examine, since it is our opinion that the transaction was clearly a sale.
The characteristics which distinguish a sale from a mere assignment are, that in the former there is a fixed price and no trust, in the latter there is a mere trust and of course no fixed value given to the property. Here the price was determined — the horses were taken by the creditor at a fixed price and the goods also. It is true, that the aggregate value of the merchandise was not settled, for the plain reason that it could not be, until an inventory was taken. But that is certain which can be rendered certain. When the inventory was made and the original bills were examined, the aggregate price was determined by the terms of the contract.
As to delivery, it is not perceived how it could have been more complete than it was. If a man sells another a hundred barrels of corn, at an agreed price, to be taken from a crib containing' five hundred barrels, it might be contended that the corn is not delivered until the quantity purchased is separated from the bulk. But if the purchase embraces all the corn in the crib, the exact amount being unknown, it can not be pretended that the sale is incomplete until the corn is measured. In this case, the purchaser took immediate possession of the goods, with the consent of the vendor.
That part of the bill of sale which required the purchaser, in the event that the value of the goods and other property conveyed exceeded the amount of indebtedness, to pay over the balance to another creditor and the remainder, if any, to the debtor, is relied on as a circumstance to show a trust and thus convert the transaction into an assignment. But it was a mere mode of payment and really nothing more than an assumption in a certain contingency of one of the debtor’s *307liabilities and constituted a part of the price. There was no interest in the goods or their proceeds reserved to the grantor. The title to the goods passed absolutely to the vendee, at an agreed price, the full aggregate amount of which was as yet undetermined; and as the notes due the vendee might not absorb the entire price, an arrangement was made for the payment of whatever sum might' exceed the amount of the indebtedness. It is the case of a man’s buying property and paying for it partly in cash and partly by assuming a debt due by his vendor to another. The latter circumstance does not make the transaction a trust, or deprive it of the essential features of a sale.
The main question in this case, it is evident, was whether the debts of Keiler & Co. were genuine, and whether the prices of the property delivered were fair and reasonable. If the debts were bona fide and the property taken at a fair value, it is not easy to see how any fraud could have existed, so long as the law allows a debtor to prefer one creditor and pay his demand either in money or property. Such transactions are necessarily obstructions to other creditors, where the debtor’s property is insufficient to pay all his debts. But we might as well attack the attaching creditor on this ground, who, if successful, would sweep off all the property, and thereby totally defeat the claims of others, as the creditor who effects the same purpose by a voluntary transfer or sale. Each is looking to his own interest, regardless of any division on equitable principles, and the course of each is alike prejudicial to the satisfaction of the other’s claim. But as the law stands, these scrambles are tolerated, and the party who is most vigilant and' active is permitted to retain the spoils. The mere fact that other creditors are obstructed or defeated does not vitiate the transaction, for such is the usual effect of all such struggles for the property of a debtor in failing circumstances, whether by attachment or by sales.
The question as to the bona fides of this transaction was put to the jury under instructions, some of which were too favorable to the attaching creditors. The facts showed that *308the property was taken at a fair price, since the result of the sale only amounted to about one thousand two hundred dollars, when the estimated value at thirty per cent, below cost made them one thousand seven hundred dollars. The property failed to pay the notes to Keiler & Co.
Judgment affirmed;
Judge Ewing concurs. Judge Scott absent.