Page:Federal Reporter, 1st Series, Volume 4.djvu/639

 lîOBTON V. BILIilKOa. 626 �self at that time out of employment, and desîred Bome occu- pation, although he had no knowledge of the business in whiclî the firm was engaged. A very small sum was paid in cash by Billings at the time, and notes were given for the balance due, some of which were negotiated by the firm; and afterwards a new arrangement took place, by which the old notes were taken up, and new ones given, because of the amount paid for the lease of the store, which Billings claimed was too large. From this sale the firm realized about $10,- 000, none of which was paid to the New York creditora. �The evidence shows that the statement made by McElwain to his creditora in New York, of the amount of the Chicago indebtedness, was not correct; that it largely exceeded the amount as stated by him, and it would seem that the pro- ceeds of this sale were used in the payment of the Chicago indebtedness, and for the living expanses of the members of the firm. It should also be stated that there is evidence tending to show that McElwain, between the time when he obtained the extension from the New York creditora and the sale made to Billings, had taken from the stock some watches and other articles of jewelry which are not very satisfactorily accounted for; but there seems no reason to doubt that Bill- ings obtained the amount of the goods inventoried to him at the time of the assignment. Neither can there be any doubt, under the evidence, that the priee which he agreed to pay was the fuU value of the goods. Billings paid the whole of tha purchase money, taking up ail the notes which were given by him. He, however, did not remain long in the business, but disposed of the whole stock in the foUowing spring. McEl- wain seems to bave been the man principally concerned in ail the transactions which are here mentioned, Nowlin remain- ing passive, or merely assenting, as the facts were commu- nicated to him, to what had been done by McElwain. At the time the proposition for an extension was made to the New York creditors, and at the time the assignment was made to Billings, the firm was insolvent. Whatever may bave been their expectations in May, there can be no doubt that in Sep- tember, when the transfer was made to Billings, they knew of �v.4r,no.7 — iO ����