All the facts well pleaded in a bill are admitted by demurrer. But if a party sets forth an agreement in writing, and all the circumstances to give it its proper and legal effect, and then avers that he did not assign by that agreement certain things which might or might not be within it, it is the averment of a conclusion of law from the agreement; or it alleges another and paroi agreement inconsistent and incompatible with the written agreement, which it would not be competent to control by paroi evidence; and in either case the defendant may safely demur.

*286If it is a question of construction of the agreement, that is open on the demurrer, and the plaintiff has the full benefit of it. If the plaintiff actually intended to offer a paroi agreement of what was intended to be granted by the assignment, that is, of the negotiation, if it was not repugnant to the written agreement, not a different contract, in different terms, it would be useless and unnecessary; if it was, it would be inadmissible.

It seems to us that the averments in the tenth and eleventh articles of the bill are of this character. The written evidence consisted of the assignment and order on the assignee’s certificate of the amount due to the plaintiffs from the estate of Robeson & Sons. If we refer to the simultaneous document, the account made out by Andrew Robeson, Jr. to the plaintiffs, in that he credits them with “ balance of your claim on estate transferred,” &e. This was describing it as the nominal claim. It was the whole of the original claim reduced by dividends.

But the amount remaining in the hands of the assignees was not a surplus after payment of all the debts. If it had been, the balance — the surplus — would have belonged to the assignors. When therefore the plaintiffs say that it was distinctly understood that it did not belong to their assignee; that the apparent payment in full was but a nominal satisfaction; and that after-wards there was a deficit, and the whole of the assets in the hands of the assignees belonged to the creditors; they in substance aver that this was not a surplus after payment of debts.

We are of opinion that the effect of the contract between the original creditors (the plaintiffs) and Andrew Robeson, Jr. was to transfer to him what was coming to them as creditors, at the rate of fifty per cent, of the nominal amount then due, that the whole was so bought and paid for, and the whole passed.

Demurrer sustained.

The plaintiffs then moved for leave to amend their bill by striking.out the seventh clause, and instead thereof alleging that afterwards negotiations took place between Andrew Robeson Jr. and the plaintiffs, and it was finally agreed that they should sell to him the unpaid balance of their original c'aim and a por*287tian of the King claim, but no right, title or interest in the surplus fund, at the rate of fifty per cent, on the face thereof, and the plaintiffs requested William C. Chapin, as their agent and attorney, to make the necessary indorsements or assignments upon their certificates of debt, to vest in Robeson what he had so agreed to purchase, and Chapin made the assignment before recited, and a similar indorsement or assignment was made of a portion of the King claim ; that, in making the same, by accident or mistake it was omitted to be stated that all interest in the surplus fund was reserved to the plaintiffs; that the plaintiffs, being informed of the form of the assignments, immediately became apprehensive that they might be construed to assign to Robeson their interest in the surplus fund, and so informed Chapin, who advised them that it was not so understood, and for their satisfaction inquired of Robeson in writing if he so understood it, and he replied in writing that he claimed only the interest in the surplus fund appertaining to the portion of the claims which he had purchased, and the plaintiffs would be entitled to any dividend which might be payable on so much of their demand as had been paid before or purchased of them; that this reply was communicated to the plaintiffs, and although not according to their understanding of the agreement by which they reserved all interest in the surplus fund, yet for the sake of peace they were willing to acquiesce in it, and should have done so if he had not set up a claim to their whole interest in the surplus fund ; that he afterwards rendered an account, as stated in the original bill; and that the plaintiffs afterwards had negotiations with the assignees and Robeson, at which the plaintiffs’ right to the surplus fund were admitted by them.

This motion was argued by the same counsel.

The amendment proposed would raise only the same questions which have been decided on the demurrer.

It offers to vary the case by paroi evidence, which we have held inadmissible to vary the written assignment, or to correct the contract by Robeson’s letter, if the plaintiffs meant to rely on that as the true evidence of the contract. But they held this *288letter, and yet, until since the decision upon the demurrer, they claimed to be entitled to tlie whole of the surplus dividend, being a greater sum than the letter upon their own construction would give them.

The letter, as stated, does not import that any dividend was payable on the part of the debt theretofore paid, the $80,642.71. All that was paid in full; what remained to be received was incident to the unpaid part. The circumstance" that it was not payable to the original assignors shows that what is called surplus does not pay the debts of the cestuis que trust. After the application of the surplus the whole balance was not paid, because a great part of that which was treated as payment was made in property at a conventional value, beyond its true value. Motion overruled.