(dissenting).
This is an interesting problem; I agree with Judge Swan’s scholarly analysis except for his rejection of the “judgment theory.” As to this also, what he says has much force; but I incline to believe that the opposite conclusion is the more equitable. This is now a contest between a solvent debtor and its creditors on a direct obligation which has become fixed and final by court proceedings between the parties. It should not be affected by the abortive reorganization proceedings. As the opinion substantially concedes, allowance of a claim in bankruptcy fixes it, just as does a judgment,' and an ordinary judgment bears interest at the legal rate. The situation is one therefore where a debtor who has availed himself of the bankruptcy provisions ultimately is able to pay in full; he should not then be permitted to make use of the statute to reduce his claim. Obviously here, except for the proceedings, the creditors would have taken judgment at once; they should not be deprived of that advantage by the debtor’s unassented-to act.
That this was a reorganization, rather than an ordinary bankruptcy, proceeding would seem not to change this situation. It is still only a question between the debtor and its creditors. The cases in railroad reorganization were cases involving equities between classes of creditors. The Vanston case, supra, 329 U.S. 156, 164, 165, 67 S.Ct. 237, 241, is, I believe, important authority for this view, because it stresses the “touchstone” of “a balance of equities between creditor and creditor or between creditors and the debtor.” (Italics added.) This is said just after a discussion of the two differing situations, thus: “To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors. * * * But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor.” What is considered fair in measuring obligations of different classes of creditors — and eventually assented to and approved as provided by law in a plan of reorganization — should be different from what a debtor by his unilateral act may secure by way of lessening his obligation upon his payment in full. These views would mean that at least from the time of allowance, the claim, including the interest due thereon at the time, would bear interest at the legal rate of 6 per cent.