Plaintiff brings this action as assignee in insolvency of one Healy, to recover certain personal property, or its value, which it is alleged was transferred by said Healy to defendants within one month before the filing of the petition in insolvency, with a view to give a preference to the defendants, and with reasonable cause by the latter to believe that said Healy was insolvent, in violation of section 55 of the Insolvent Act of 1880.

Verdict and judgment were for plaintiff, and from the judgment and an order denying a new trial the defendants appeal.

1. It is contended that the evidence is insufficient to sustain the verdict; that it establishes, without conflict, that defendants in taking the transfer acted in the utmost good faith, upon a valuable consideration, and without cause to believe that Healy was insolvent, or that he was making said transfer in contemplation of insolvency. And further, that it appears, without controversy, that the transfer was made and accepted in pursuance of a verbal understanding made between defendants and Healy in 1890, whereby the latter agreed that, in consideration of defendants, who were wholesale liquor dealers, selling Healy goods on credit with which to carry on business, that the latter would trade with no other house; and, if at any time he failed in the business or should cease to carry it on, he should turn the place and stock on hand over to the defendants.

The transfer complained of was made by the insolvent, Healy, who was carrying on the business of saloon-keeping, by a bill of sale made January 27, 1892, whereby he transferred to defendants his entire stock in. trade, saloon fixtures and furniture of every kind, accompanied by possession of the saloon.

Upon the question as to the purpose and intent with which this transfer was made Healy testified on behalf of plaintiff:

One Donohue testified:

Defendant Edward Commins, and his book-keeper, gave testimony tending to contradict the witness Donohue as to his statement that he informed defendants of the financial condition of Healy at the time. They testified that Donohue said nothing about Healy owing any one else. That he gave as the sole reason for the transfer that Healy was sick and had to go out of business. That defendants had no knowledge of any other debts owing by Healy, and no reason to believe him insolvent; that the transfer was taken by them solely in pursuance of an understanding they had with Healy that he should turn the business over to them in the event of his retiring.

In this state of the evidence it is idle for appellant to contend that the evidence was without conflict as to the purposes for which the transfer was made. Their argument is largely a suggestion of facts going to show that the witness Donohue had acted in bad faith in the *585 transaction, and was not worthy of belief—reasons which, addressed to a jury, might tend to affect the question of his credibility, but which have no place in discussing the question as to whether there was a conflict of evidence upon the point in question.

It is obvious that, if the jury believed his testimony and that of Healy, there was evidence to sustain their verdict.

The evidence of the alleged understanding between Healy and defendants about turning the saloon over to the latter was, perhaps, admissible on the question of the intent of the parties in making the transfer, but only for such purpose. If it constituted a valid or binding contract between the parties to it, which is doubtful, it was clearly void as against creditors, as being in direct contravention of the provisions of the Insolvent Act. Under it the parties could have accomplished indirectly the very thing denounced by section 55 of that act as fraudulent. Even if clearly established, therefore, such verbal understanding constituted in itself no defense to the action.

2. It is claimed that the court erred in charging the jury that the bill of sale in .question given by Healy was not a sale in the ordinary course of business, and was therefore prima facie fraudulent and void.

The instruction was clearly right. It appeared without conflict that the business of Healy was that of saloon-keeper, a vendor of liquors in retail quantities, or drinks, over the bar. The bill of sale constituted a disposition of the entire business in bulk, and was, therefore, not a transfer in the ordinary course of the business in which the seller was engaged; and it was right for the court to so charge the jury as matter of law.

Nor, for the reasons above stated, was the instruction erroneous because it ignored the alleged agreement or understanding between Healy and defendants.

For the same reasons it was not error for the court to exclude the offered evidence of a custom among liquor *586 dealers to enter into similar arrangements with saloon-keepers.

We find no error in the record.

Judgment and order affirmed.

Garoutte, J., and Harrison, J., concurred.