The Federal Reporter. Volume 4: Cases Argued and Determined in the Circuit and District Courts of the United States. October-December, 1880. Page: 409
xiv, 928 p. ; 23 cm.View a full description of this legislative document.
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.IN u UBsunOHnLL.
conditional on the notes being paid, and that, as the notes
were not paid, and Burchell went into bankruptcy, the prom-
ise became null and void. The written agreement itself
contains no condition whatever. The giving of notes for the
balance, and the expression "Paid as follows," show clearly,
I think, that the promise to pay was unconditional; nor does
the parol evidence show any such condition, if parol evidence
could be received for the purpose.
There being, then, a valid obligation on the part of the bank-
rupt to pay the claimants $1,200. on account of Bigler &
Co.'s original debt, it continues in force, unless discharged by
what has since taken place. That it has been so discharged,
is the claim of the assignee and the ruling of the register.
Ward has proved under his assignment from Bigler & Co.,
for the whole debt due to Bigler & Co., $5,257.79, not-
withstanding this agreement with the bankrupt by which
$1,200 of it was to be paid to the claimants. He seems
to have proceeded, in doing so, on the theory that, as the
notes were not paid, the promise to pay the claimants be-
came void. In this, I think, he was mistaken. Since mak-
ing that agreement he has made a settlement with Bigler
& Co. and assigned, at their request, his claim against the
bankrupt to another. If it were proved, as contended by the
assignee, that these claimants and Ward had agreed that he
should prove for the whole debt and pay them the dividend
upon their share of it, they would be estopped to prove sepa-
rately for their share. But the testimony does not sustain
this point; on the contrary, both Burhaus and Ward deny
that there has been any subsequent agreement between them
of this character.
The fact that Ward has proved for too much cannot affect
the right of the claimants. Then, as to the acts of the claim-
ants themselves, it appears that, notwithstanding their agree-
ment with the bankrupt and Ward, they retained Bigler &
Co.'s due-bill for the whole debt, $1,600, and did not take
the composition notes. And in March, 1880, they made a
settlement with Bigler & Co., receiving $400, and giving up
the due-bill, and giving a receipt "in full of all claims that409
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Boyle, Peyton. The Federal Reporter. Volume 4: Cases Argued and Determined in the Circuit and District Courts of the United States. October-December, 1880., legislative document, 1881; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc36333/m1/423/: accessed July 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.