McKEY v. BRUNS. In re GEORGE C. BRUNS CO., 243 F. 370

ALSCHULER, Circuit Judge (after stating the facts as above). There is nothing in the record from which it may be concluded that the $2,500, which Bruns advanced to make the first payment, was intended by him as a gift to the corporation; and, this being so, clearly, Bruns had a claim against the corporation for the money he thus advanced for its benefit, and as the result of which the company was enabled to compromise the claims against it, and to resume its business freed from the bankruptcy proceedings.

It is urged that the note is invalid, because the board of directors did not authorize it to be given. ' But the note is of no necessary consequence, since it is the consideration, rather than the note itself, with which we are actually concerned. The claim is neither colorable, fictitious, nor invalid, and the trustee’s first objection is not sustained. Respecting the second objection, that Bruns is estopped from making the claim, reliance is placed mainly upon his representation to the creditors that funds for making the first cash payment of $2,500 were no part of the assets of the corporation.

This was not directly or indirectly any representation that the person advancing this money, primarily for the benefit of the corporation and to help settle its debts, would not have therefor a claim against the corporation. We find nothing in the record to warrant the contention that Bruns, or any one else who would thus advance the money, should not be repaid by the corporation, and nothing because of which Bruns is estopped from making claim for it.

Much of appellant’s brief is devoted to showing that, out of the assets of the bankrupt, the claims based, on the composition notes should be first paid before appellee receives anything. However this may be, appellant’s right to exhibit his demand, and to have it allowed as a claim against the bankrupt, is in no wise dependent upon the order of payment as between the various creditors of the bankrupt. His claim was provable, whether ultimately payable first or last.

The objections of the trustee do not purport to raise any question of rank of the respective claims as to each other, nor does it appear that any of the other creditors who are directly interested in the question are asserting any right of priority over appellee; neither does the order of allowance of Bruns’ claim assume to deal with any such question. The District Court properly allowed the claim, and its order of allowance is affirmed.