P. C. Hanford Oil Co. v. First National Bank , 1887 Ill. App. LEXIS 485 ( 1887 )

McAllister, J.

The promissory note and warrant of attorney in question, made October 13, 1884, by Ferris & Avery to the First ¡National Bank of Chicago, were given as security for a Iona fide indebtedness of the makers to the bank, were designed and intended by the parties to give the bank a preference as respected such indebtedness over all the other creditors of Ferris & Avery; and to make such security effectual as creating a preference, the same was given and taken subject to an informal agreement on the part of Ferris & Avery to the effect that in case financial trouble should afterward overtake them, they should aid the bank in rendering said preference effectual.

The giving of such note' and warrant of attorney was nearly two months prior to the time when Ferris & Avery first formed the determination to make a general assignment of all their property for the benefit of their creditors, and while they had full dominion over it.

We are of opinion that, under that state of facts, the acts of Ferris & Avery, or of Mr. Ferris, done after they had formed the purpose of making such general assignment for the purpose and with the view of aiding the bank in rendering its security and intended preference effectual, must be considered as belonging to, and forming a part of, the transaction of creating said preference, and not as forming a part of the transaction of making a general assignment.

The reasoning of Mr. Justice Cole in Sampson v. Arnold, 19 Iowa, 487, et seq., seems to us to be conclusive upon that point. This case is, therefore, distinguishable from that of Preston v. Spaulding, 120 Ill. 208, 217, and not governed by it.

We think the order upon which error in this case is assigned should be affirmed.

Affirmed.