App. Div.] First Department, December, 1913. The case was tried by the court without a jury and was decided in defendant's favor upon a ground not suggested by the pleadings, nor raised by defendant on the trial, and but half-heartedly undertaken to be upheld on this appeal. The court was of opinion that the assignment to plaintiff was void under section 66 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61). That section, so far as it is applicable to this case, reads as follows: "No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder, when the corporation is insolvent, or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid. Every person receiving, by means of any such prohibited act or deed, any property of the corporation, shall be bound to account therefor to its creditors. * * * No such conveyance, assignment or transfer shall be void in the hands of a purchaser for a valuable consideration without notice." * * It is well settled and indeed perfectly obvious that to avoid an assignment of property under this section, where the assignee is not an officer or director or stockholder of the corporation making the assignment, it must be alleged and proved that when the assignment was made the corporation was insolvent or its insolvency was imminent, and that the assignment was made with the intent of giving a preference to a particular creditor over other creditors of the corporation. (Van Slyck v. Warner, 118 App. Div. 40; affd., 192 N. Y. 547.) The intent to prefer is of the very essence of the invalidity declared by statute, and to sustain the avoidance of an assignment under the section quoted this intent must be pleaded, proved and found. In the present case no such intent was either pleaded, proved or found. The court did find as a fact: "That on said 15th day of February, 1912, the said Wm. N. Jennings Printing Co. was insolvent or its insolvency was imminent, and that said corporation at said date was unable to pay its debts and maturing obligations." Assuming that this finding was justified by the evidence, which is by no means clear, it is insufficient to require First Department, December, 1913. [Vol. 159. the avoidance of an assignment to one not an officer or director or stockholder in the absence of a finding of an intent to prefer. The ground upon which defendant relied at the trial and on which he now insists as the reason why the plaintiff should not recover is that the assignment is not shown to have been executed by the printing company. The assignment is in writing, bears the seal of the assignor corporation and is signed "Wm. N. Jennings Prtg. Co., Earle L. Rich, Treas." The evidence and finding is that it was given to plaintiff in consideration of its forbearance to press, by legal means, for the payment of the amount admittedly due to it, and that it did so forbear. The assignment was agreed to by Mr. Rich, the treasurer, who signed it, and also by Mr. Wm. N. Jennings, Jr., the vice-president and general manager of the printing company, the two gentlemen who appear to have been the active factors in running the business of the printing company. There is no doubt that an agreement to forbear to sue, coupled with actual forbearance, is a good and sufficient consideration to support an assignment. (Milius v. Kauffmann, 104 App. Div. 442; Cary v. White, 52 N. Y. 142; 9 Cyc. 338.) It is true that the by-laws of the printing company did not give to its treasurer power to execute an assignment of its property, and if the agreement had been wholly executory it may be doubted whether the company or its general assignee would have been bound by it. But a different rule prevails where, as in the present case, the agreement was made for the benefit of the corporation and it has actually received the benefit for which it contracted. In such a case an agreement by an officer or agent of a corporation who assumes to act in its behalf can be enforced against the corporation where it has received the benefit of the agreement. (Davies v. Harvey Steel Co., 6 App. Div. 166, 170; Tyler v. Anglo-American Savings Assn., 30 id. 404; Vought v. Eastern Building & Loan Assn., 172 N. Y. 518; Quee Drug Co. v. Plaut, 55 App. Div. 87; Ellis v. Howe Machine Co., 9 Daly, 78; 10 Cyc. 1001, 1067.) It is, therefore, upon the facts found by the trial justice, immaterial that the assignment to plaintiff was not executed in accordance with the by-laws of the printing company. Fourth Department, December, 1913. App. Div.] The judgment appealed from must, therefore, be reversed and a new trial ordered, with costs to appellant to abide event. INGRAHAM, P. J., CLARKE and HOTCHKISS, JJ., concurred; DOWLING, J., dissented. Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice. SANITARY CARPET CLEANER, Respondent, v. REED MANUFACTURING COMPANY, Appellant. Fourth Department, December 23, 1913. Conditional sale — retaining property as security with power of salė — compliance with section 65 of the Personal Property Law. Plaintiff and defendant entered into a written agreement in settlement of a controversy which had arisen because of the breach of a prior contract between the parties under which the defendant was to manufacture vacuum cleaners for the plaintiff. The agreement provided that the defendant, in consideration of retaining as its own property all moneys deposited by the plaintiff under the original contract, should sell and deliver to the plaintiff by a bill of sale property in a deliverable state to be used in the manufacture of said cleaners, and also all completed cleaners and parts thereof. It was further provided that the property should be stored by the defendant, but at the risk of the plaintiff; that the defendant should retain in its possession all of the property so transferred as security for the payment of a note given by the plaintiff, and that the plaintiff might sell the property so retained upon terms approved by the defendant. Upon the plaintiff's failure to pay the note, the defendant advertised and sold the property at public auction pursuant to the terms of the agreement after giving notice to the plaintiff. Thereafter plaintiff brought this action to recover moneys claimed to have been paid to the defendant and sought to treat the agreement as a conditional sale, and claimed that the defendant's sale of the property was in violation of section 65 of the Personal Property Law. Defendant contended that the agreement constituted an absolute sale of the property which it retained as security. Held, that the agreement constituted an unconditional sale of the cleaners and parts thereof, and that defendant's sale thereof was not a violation of section 65 of the Personal Property Law. APPEAL by the defendant, Reed Manufacturing Company, from a judgment of the Supreme Court in favor of the plain Fourth Department, December, 1913. [Vol. 159. tiff, entered in the office of the clerk of the county of Erie on the 11th day of August, 1913, upon the verdict of a jury rendered by direction of the court. Hubbell, Taylor, Goodwin & Moser [Joseph W. Taylor of counsel], for the appellant. Eugene L. Falk and Gordon F. Matthews [E. C. Schlenker with them on the brief], for the respondent. MERRELL, J.: On October 3, 1906, the defendant, a manufacturing corporation organized under the laws of New York, having its factory and principal office at Newark, Wayne county, N. Y., entered into a contract in writing with the plaintiff, also a New York corporation, located and having its principal office at the city of Buffalo, whereby the defendant agreed to manufacture for and sell to the plaintiff 25,000 Vacuo Sanitary Carpet Cleaners of a style and in accordance with a sample furnished by plaintiff. For said cleaners plaintiff was to pay defendant two dollars and twenty-three cents each, to be paid within thirty days after delivery of the manufactured article. Work upon the manufacture of said sweepers was to be undertaken at once, and delivery was to be made as soon as practicable and in the exercise of due diligence as fast as ordered by plaintiff, and all of said carpet cleaners to be delivered within one year after such delivery should commence, with allowance for delays resulting from strikes or other unavoidable causes. All patterns, dies and directions necessary to manufacture said cleaners were to be furnished by plaintiff. In further consideration of defendant's undertaking said manufacture, plaintiff therein agreed to deposit with defendant the sum of $10,000 as a continuing guaranty and indemnity to defendant against losses or damages incurred by reason of any violation or infringement of any patent, and also as security for the performance of said contract by plaintiff. Said $10,000 was to be deposited as follows: $6,000 upon making of the contract, and the balance of $4,000 by payment of sixty-two cents extra upon the first 6,452 cleaners delivered, making the price for first 6,452 cleaners $2.85 each. Upon full performance of App. Div.] Fourth Department, December, 1913. the contract by plaintiff said $10,000 so deposited was to be applied by defendant upon final settlement for machines manufactured and delivered under the contract. Pursuant to said contract the defendant entered upon the manufacture of said cleaners, but for some reason not disclosed by the record before us, said contract was not completed within the time specified, and on February 18, 1908, the parties entered into a second contract, also in writing, extending performance of the original contract until April 1, 1909. By said second contract plaintiff agreed that on or before the 18th of June, 1908, it would make good its partial default by depositing with defendant the balance of the $10,000 provided by the original contract. Except as to curing said default and the extension of the time for performance said second contract reaffirmed the contract as originally made. Plaintiff failed to keep its part of the contract as so modified, by neglecting to make good the deficiency in the $10,000 deposit, and matters appear to have drifted along until December 24, 1908, when the parties entered into a final agreement in writing apparently settling and adjusting all matters between them. After reciting the making of the original contract between the parties of October 3, 1906, the default of plaintiff in making the full deposit of $10,000 as required by the contract, and that the defendant then had on hand goods, wares and merchandise purchased by it in anticipation of the completion of said contract, in a sum not exceeding $12,000, and the desirability of terminating the contract and adjusting the differences between the parties arising out of a partial performance of the contract, and to that end to adjust and satisfy all differences and claims between the parties and to release each other from all liability arising from said contract, the said parties contracted and agreed as follows: The plaintiff agreed to execute and deliver to defendant its promissory note for $1,000, dated January 11, 1909, payable in four months from its date, and that said plaintiff would assume and pay any indebtedness of defendant to the D. H. Stoll Manufacturing Company under the latter's contract with said Stoll Manufacturing Company, not exceeding the sum of $1,200. By said agreement of settle |