Page:Federal Reporter, 1st Series, Volume 4.djvu/423

 :IN BB BUBOHEtiIi. 409 �conditional on the notes being paîd, and that, as the notes were not paid, and Burch«ll 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 foUows," show clearly, I think, that the promise to pay was nnconditional; nor doea the paroi evidence show any such condition, if paroi evidence could be redeived 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 bas 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- with standing this agreement with the bankrupt by which $1,200 of it was to be paid to the claimants. He seema to have proceeded, in doing ôo, 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 & Go., receiving $400, and giving up the due-bill, and giving a receipt "in full of ail clahns that ����