Mr. Frank Hagerman, with whom Mr. John S. Dean was on the brief, for appellants:

Inasmuch as the fund out of which the advances were to be repaid remained in the bankrupt's custody, no equitable assignment was made, or equitable charge created, hence upon no theory could the intervenors prevail.

The pleadings, evidence, referee's report, finding of the trial judge and opinion of the Circuit Court of Appeals all show that the alleged payment was expected to be made from a fund in the custody of the debtor.

There was no assignment if the payment was to be from fund in hands of the debtor. Christmas v. Russell, 14 Wall. 69, 84; Dillon v. Barnard, 21 Wall. 430, 440; Meyer v. Delaware R. R. Construction Co., 100 U. S. 457, 477; Ex parte Tremont Nail Co., 24 Fed. Cas. 183, 184; Putnam Savings Bank v. Beal, 54 Fed. Rep. 579; Badgerow v. Manhattan Co., 74 Fed. Rep. 926; Commercial Bank v. Rufe, 92 Fed. Rep. 795; Hale v. Dressen, 76 Minnesota, 183; Hicks v. Roanoke Brick Co., 94 Virginia, 746; Hossack v. Graham, 20 Washington, 192; Silent Friend Mining Co. v. Abbott, 7 Colo. App. 73.

Bankruptcy gave no higher right to the intervenors. There was no equitable assignment even if a solemn contract had been made by the debtor to pay for advances out of coal to be by it mined in the future. Had there been no bankruptcy, the alleged agreement would have created only a general debt enforcible at law. Ex parte Tremont Nail Co., Fed. Cas. No.14,168; Silent Friend Mining Co. v. Abbott, 7 Colo. App. 73.

However, had there been a modification of the contract exactly as alleged, written out and attached to the original contract, there could have been no cancellation of the lease. There having been no reservation of the right of reëntry for a breach of the modified agreement, there was no right to a surrender of the property, which was the only relief sought. 18. A. & E. Enc. of L. (2d ed.), 369; Hague v. Ahrens, 53 Fed. Rep. 58, 60.

To like effect are: In re Pennewell, 119 Fed. Rep. 1391; Doe VOL. CCXIII-9

Argument for Appellees.

213 U. S.

v. Godwin, 4 Maule & S. 265; Crawley v. Price, L. R. 10 Q. B. 302; Den v. Post, 25 N. Y. Law, 285; Spear v. Fuller, 8 N. H. 174; Wheeler v. Dascombe, 3 Cush. 285; 1 Washb. Real Prop., § 504.

Mr. Robert Dunlap, with whom Mr. Wm. H. Smith and Mr. Gardiner Lathrop were on the brief, for appellees:

By advancing or prepaying, at the request of the bankrupt, for coal which that company was obliged to furnish under the written lease and agreement, that company and the railway company to that extent and in that particular varied or modified the mode of performance required of the railway company by the written contract and modified or varied its terms so far as applicable to coal so paid for in advance. That, as contracting parties, they had the lawful right to do, and strangers to the contract are in no position to question what was done. 1 Parsons on Contracts (9th ed.), star pages 4 and 5; Youngberg v. Lamberton, 91 Minnesota, 100; Bryant, Adm., v. Stephens 58 Alabama, 636; Holman & Woods v. The Georgia R. R., 67 Georgia, 595; Cline v. Shell, 43 Oregon, 372; Hull v. Pitrat, 45 Fed. Rep. 94; Insurance Co. v. Hinesley, 75 Indiana, 1; Prudential Ins. Co. v. Sullivan, 27 Ind. App. 30.

The testimony shows that the transactions between the railway company and the coal company were understood and intended by the parties as a variation or modification in the mode of performance of the written stipulations in the agreement to the extent that the advances were made by the railway company. Such advances were not made on the general credit of the coal company, but in view of and upon the strength of its contract obligation to furnish the railway company with coal under the written agreement.

This arrangement was made in view of the contractual relations between the parties, as evidenced by the written contract, and it must be assumed that the advances were made on the faith of and in reliance upon the contract obligation of the Mount Carmel Company to furnish coal. Carr v. Hamilton,

129 U. S. 252; Fourth St. Bank v. Yardley, 165 U. S. 634; Jennings v. Bank, 79 California, 323; Stellings v. Jones Lumber Co., 116 Fed. Rep. 261, 266, 267.

The trustee in bankruptcy, in assuming to take the benefits under or to carry out the lease and agreement of the coal company, stood in the same plight as that company in respect to such contract, and could only assume it or take the benefits thereunder subject to all adjustments theretofore made and to all equities in favor of all the other parties to such agreement and in the exact condition in which such contract was at the date of the adjudication in bankruptcy. York Mfg. Co. v. Cassell, 201 U. S. 344; Hewit v. Berlin Machine Works, 194 U. S. 296; Stewart v. Platt, 101 U. S. 731; Yeatman v. Savings Institution, 95 U. S. 764; Thompson v. Fairbanks, 196 U. S. 526; Hauselt v. Harrison, 105 U. S. 401; Winsor v. McLellan, 2 Story, 492 (Fed. Cas. No. 17,887); Winsor v. Kendall, 3 Story 507 (Fed. Cas. No. 17,886); Ex parte Newhall, 2 Story, 360 (Fed. Cas. No. 10,159).

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

We shall not stop to discuss the question of jurisdiction. That whole subject has been so fully considered in the case just decided of Coder, Trustee, etc., v. Arts, post, p. 223, that any further discussion of the subject would be superfluous.

We pass directly to the merits, and in order to a clear understanding of them the facts of the dealings between the coal company and the railway company must be borne in mind. The railway company entered into its original contract for the sake of securing the constant supply of coal necessary for the operation of part of its railway. It was to take from the coal company daily all the coal required therefor at prices fixed in the contract, and to make payment therefor on the fifteenth day of each month for all coal delivered to it during the preceding calendar month. It was not engaged in the business of money

lending. Its entire arrangement was for the purpose of securing daily its needed coal, and that was fully understood by all the parties. After a while the coal company became embarrassed, found difficulty in securing money for the payment of its employés, whereupon and in order to prevent any delay on the part of the coal company or any embarrassment which it, the railway company, might suffer from failing to receive from the coal company the needed amount of coal it advanced money to the coal company to enable it to pay its employés, and thus to continue the performance of its obligation to mine and deliver the coal. The railway company was simply paying in advance instead of waiting until the fifteenth day of the succeeding month, and the money by it loaned was not loaned as an independent transaction-such as would be made by an ordinary money lender-but an advancement made in anticipation of the delivery of the coal. To ignore this element and make the bankruptcy proceedings operate to discharge this obligation of the coal company, and leave the transaction as one of an independent loan of money to the coal company would result in destroying the full equitable obligations of the coal company, and place the parties in their relations to each other on an entirely different basis from what had been contemplated by them when they entered into this original arrangement. While decisions directly in point may not be found, yet see Ketchum v. St. Louis, 101 U. S. 306-317; Hauselt v. Harrison, 105 U. S. 401; Carr v. Hamilton, 129 U. S. 252; Fourth Street Bank v. Yardley, 165 U. S. 634. In In re Chase, 59 C. C. A. 629, 631, Circuit Judge Putnam, delivering the opinion of the Circuit Court of Appeals of the First Circuit, says:

"It is settled that a trustee in bankruptcy has no equities greater than those of the bankrupt, and that he will be ordered to do full justice, even in some cases where the circumstances would give rise to no legal right, and, perhaps, not even to a right which could be enforced in a court of equity as against an ordinary litigant. Williams' Law of Bankruptcy (7th ed.), 191. Indeed, bankruptcy proceeds on equitable principles so

broad that it will order a repayment when such principles require it, notwithstanding the court or the trustee may have received the fund without such compulsion or protest as is ordinarily required for recovery in the courts either of common law or chancery."

In Thompson v. Fairbanks, 196 U. S. 516, 526, this court said: "Under the present bankrupt act, the trustee takes the property of the bankrupt, in cases unaffected by fraud, in the same plight and condition that the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt, except in cases where there has been a conveyance or encumbrance of the property which is void as against the trustee by some positive provision of the act."

The purpose of the parties is very clearly expressed in the following quotation from the opinion of the Court of Appeals: "It appears that the coal company, while the contract was still in force and being executed, became embarrassed and unable to meet its pay rolls; as a result it might not be able to mine or deliver the coal which it had agreed to mine and deliver to the railway company, and which the latter imperatively required for its daily consumption. In this state of things the railway company agreed to waive its right to withhold payment for fifteen days after the coal was delivered to it and pay for some of it before it was delivered; and the coal company agreed, as found by the trial court, to repay such advances, not in money, but by furnishing coal in the months of July and August following, at the price fixed by the original contract. This arrangement, made when the coal company was in embarrassed circumstances, and obviously inspired by the necessity of meeting the pay rolls, and for the ultimate purpose of securing performance of the only part of the original contract in which the railway company was interested, namely, securing its supply of coal, is so intimately and vitally related to the original contract that we are unable to agree with the trial court that it was intended to be independent and separate from it. It was not, in our opinion, a modification of any of the substantive