However, the bankrupt claims entire immunity from these proceedings because he says that he, under no circumstances, was a party to the offer. His passivity, however, is in total inconsistence with his use of the pronoun 'we' in his testimony as to what went on when he and his wife visited the office of Mr. Dawes and of their conversations with Messrs. Lenox, Kahn and Perlman. He was present before the Referee when the petition was heard, which described the offer allegedly coming from himself and his wife and he took no exception by way of review or appeal from the order that confirmed that offer or the one which directed the consummation thereof. The Chancery action involved him and his wife and he was a party to the offer to settle notwithstanding that it was his wife who was to put up the necessary funds.
Further, both respondents deny that the offer as approved by the court reflects their agreement. They point to Mrs. Rockhill's letter of withdrawal. This complained of two subjects. First, it took exception to the notice to creditors which the Referee had sent out because a reference is made to the suit in Chancery having as its subject matter allegedly fraudulent conveyances. Mrs. Rockhill insisted that the trustee issue a statement that the transfers were not fraudulent. Secondly, the letter contained a demand for practically a guarantee that her husband would be discharged in bankruptcy. Both demands were to say the least naive. Nowhere in the letter, however, is the slightest reference made to a demand for release of her husband and his brother, Edward, from the judgment in the Horvath case, or that the procuring of such was to have been a contingency upon which the offer was made. In fact there is no showing that there are judgments against the bankrupt's brother or father which could be released in any event. His schedules, filed for him by Mr. Dawes, show that James and Edward Rockhill, presumably the father and brother, signed a recognizance in the Horvath case and, if given its ordinary connotation, it means that they became but bondsmen that he would abide the judgment of the court and not flee its jurisdiction.
In any event upon the return day of the notice to creditors made pursuant to the trustee's petition for the court's approval of the compromise, they and their counsel made no sign or sound that theirs was a double barreled offer requiring not only the discontinuance of the Chancery Court action by the trustee but independent releases and assurances from Mr. Perlman not as counsel to the trustee but as attorney for judgment creditors upon whose behalf, by the way, he had, early in the bankruptcy proceedings, filed objections to the bankrupt's discharge.
At some time after the approval order was entered there is no doubt that the respondents pressed their demands for the assurances that they well knew the trustee could not give, but this was after they had sat idly by watching the court approve an offer they say was incomplete in its terms and failing thereafter to ask for review of it or any other order the court based thereon. The Referee was right in deeming these conditions afterthoughts not to be permitted to affect the proposal which had received approval.
The respondents offered a check in evidence which was made out at the time of the conference in Mr. Dawes' office when he telephoned to Mr. Kahn. It is made to the order of Mr. Dawes in the sum of $ 750 and contains the notation, 'In full settlement Kahn & Rockhill to be paid upon the receipt of proper releases'. This check was never delivered and although the respondents point to it as important proof that they were to have releases from the plaintiffs in the Horvath suit in addition to the discontinuance of the Chancery Court action it is as ineffective and unconvincing as Mrs. Rockhill's letter.
Both the trustee and Mr. Perlman assert that there were no assurances given that releases would be delivered covering the judgment in the Horvath case and conversations concerning these, according to Mr. Perlman, did not take place with him until after the Referee's order following the creditors' meeting, when he found it impossible to procure such releases.
An order was entered in the Court of Chancery suit, on the consent of Mr. Dawes, some time prior to the creditors' meeting which recited that the matter had been settled subject to the approval of the Referee in Bankruptcy and ordered that the hearing in the matter should be continued without a day.
The respondents made an offer of payment by Mrs. Rockhill of $ 700 to compromise the suit of the trustee against them and later chose to annex conditions to be fulfilled by Mr. Perlman as attorney not for the trustee, but for judgment creditors. They permitted the court to remain uniform of the annexed conditions until after its order was entered, and their continued failure to comply with its order brings them in contempt of it.
An order will be entered holding them in contempt of the order of Referee Wheelans made on the 8th day of August 1944, directing them to pay the sum of $ 700 and interest according to the items therein stated. The order should provide that they may purge themselves of this contempt by complying with the said order not later than Monday, April 7, 1947 at 10 a.m., or appear before this court at that time for its further action in connection with their contempt.
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