
    A. Xiques, Syndic, v. F. Rivas et al.
    No contract .can bo avoided unless made in. fraud of creditors» If made in good faitli it cannot be annulled, although it prove injurious to the creditors.
    No sale of property, or other contract made in the usual course of the party’s business, nor any payment óf a just debt in money shall bo avoided, although the party was'in insolvent circumstances, "and the person with whomliQ contracted, or to.vjhomhe made the payment, knew of such insolvency.
    Appeal from the Fifth' ^District Court of New Orleans, Dggles'ton, J.
    
    ' Durant & Horner.' for'plaintiff. ' Deiyjamin, Bractfohl & Mivnetj,-iov defendants and appellants.
   Merrick, C. J.

This Suit was brought by the syndic to' set aside the sale of a lot of cigars sold by the insolvent to the defendant a day or two pfevioiis to the surrender, on the ground that this sale gave’the defendant an unjust and fraudulent preference over the other creditors.

The testimony in the case is somewhat meagre, but we gather from it the following facts: -

The defendant, Bivas, was a wholesale dealer in cigars. The insolvent, A. Hernandez, was both a wholesale and retail dealer- iii the same articles. The cession took place ábbut the'15fh of April,-1858,■ as appears from the oral testimony; the insolvent proceedings not being in evidence.

From September 7th, 1857, to April 13th, 1858,' inclusive, the insolvent, Hernandez, bought cigars of Bivas in various- quantities, in- value at a time from $12 to'$484 50, the sales of the last mentioned day. The sum total of sales during the period was $4,702-23. ' -Hernández was allowed a few days credit, although the sales appear to ha^e been- for cash. 'About the 14th of April, 1858, Bivas, the defendant, being the' creditor of Her-iiahdez'in the sum of $574 87, b ought -of-him -tifo kinds-of cigars,-which Hernandez himself had bought and imported from Havana; amounting to $585, and over-paying himself $10’ 13. 'The suit is brought'to set aside this sale. ■• ' • ‘ ' ■' ' - ■ - ■ - - ■ -

JV M. Hernandez, the plaintiff’s only'witness, and; the clerk and brother of'the -insolvent, gives the-following account'of ‘the transaction; viz; ‘1 Being asked to look at the bill -annexed- to plaintiff’s petition, 'says the cigars therein mentioned were sold-by-him to-Mr. Bivas-on-the date of the bill;” (April 14, 1858) “ and about- two or three -days- before the session. Bivas did not pay cash for the cigars. The transaction was this:' Witness, a few days before, had purchased'a :lot of cigars-from1 Bivas-for-cash. Thfee ór fotir days affcer, about tlfé'14th‘; Mr. Bivas'-came to witness-’store. He told Bivas he had orders from his'brother, A. Hernandez,' to .pay-his "BivaS said it'Was'all fight;'but that h'é liad'g'dt-án oídéf fóf eértain cigars which he did not have in his store, but as witness líád them in the store, and asked witness the price of said cigars, Rivas then said the price suited him, and he muela preferred them instead of the money that A. Hernandez owed him then. He would take said amount in said brand of saict cigars.' He Wanted them:-' The transaction was liiadd^aH&iihere wasfc about $10 over, which was due fróin Rivas; and this is how Rivas got the cigars in lieu of money due by A. Hernandez.” In another place he says, the cigars were sold at a regular price, and that he did not suppose Rivas knew the situation of the affairs of Hernandez. “Witness did not.know, at that time that Hernandez could not pay his debts.- All the bills were paid as they were presented, at that tiine.” “ The'Order witness got from his brother was to pay Rivas the amount of his claim, about $400 and some dollars, and he had at one time sufficient amount in the store to «pay. him; that is aaot in cash, but bills he had to collect on that day; also the' cash receipts from the other stores.” . ■■ • - - • -

' This festiihoiiy,' Wliieli ca-hnobfe controverted-1 >y-jdlaintiff, doesmafcají-pe'ar to us tb b'riilg’the cash Within' tlíé--rule established -in ithei cases«ejfVj Debon v. Bache, 1 M. R. 240; Ritchie v. Sands, 10 M. R. 704. Cansfield v. Maher, 4 N. S. 174; and Coddington v. Tapper, 4 L. R. 127.

In the case at-bar, the goods' Sold by ¡Rivas -to 'Hernandez were,sold!j nominally for cash-.' :A considerable portion; at least,-of'the--‘cigars sold-1 on'the 13th of April by'RiVas to the insolvent, were''surrendered to.-the:-; erfeditors. The insolvent, with1 ability so to do, had offered to pay ¡Rivas;’j The sale from the ‘fdíóner “-td'-'the' latter was in the due course ef-Hmideás-. of Hernandez, and it'may also be" inferred, of Rivas. Rivas was in good:faith, and there was nothing remarkable in his desire to'purchase1 (to sup-,.-, ply a customer) á‘ pif tiofilai' brand which -Hernandez himself'had- selected« at 'Havana: - '• ■ ■

The case does not therefore elearly'sliow that "the creditors have been'-: iiijú’red by the sale.’ 'Had-'it not-'taken'place; Rivas Wóuldffiave:hítd'Ms>. money) !ór át least his venclor;-s '¿uivilégb- upon the'cigws‘sold-by.-him kndo surrendered. i

ithe' transaction,' although' 'differing from 1 all iirevioíis 'ónés-'between these parties, was in tlie fisiial course of business of the two hotisesyfdr-theybótii:bbaiglit’ánd: sol'd by'thó wholesale. : . - • •> ••

TÍie"'defendan't'íi.ppeárs, tlíéréfóre, to- be protected by article 1981,- .and: the latter clause of article 1973 of the Civil Code. "-u l!i-r'f "J

li^istherefore ó'rdéred,: adjudged and'decreed by-the- Court,-that the judgment of the'lower ijonrt b'e: avoided and reversed; and that there be« jiidgnieiit'in' 'this 'Coui’tín favoTóf the defendant, with costs of both coúrts‘.- ) ’i ’<■[> ' ■ •} Í ”5 ►*•»! ; >*ííf  