text:
    MARQUETTE LUMBER CO. v. ALBEE.
    1. Mechanics’ Liens — Waiver—Evidence—Sufficiency.
    In a suit to enforce a lien for lumber sold by plaintiff to certain contractors for a building on defendant’s premises, where defendant made payments to the contractors without demanding the sworn statements required by the statute, evidence held, sufficient to sustain a finding that plaintiff had not waived its lien.
    2. Same — Waiver—Evidence—Burden of Proof.
    In a suit to enforce a materialman’s lien, the burden of proof as to a waiver of the lien, is upon the owner of the premises.
    3. Same — Waiver—Statute—Construction.
    Before one entitled to a lien under the statute should be declared to have waived it, it ought to clearly and unequivocally appear that he has expressly waived it in compliance with 3 Comp. Laws, § 10734 (5 How. Stat. [2d Ed.] § 13790, 3 Comp. Laws 1915, § 14820), providing that the taking of security for the debt other than the real estate shall not defeat or waive a lien under the act in the absence of express agreement that such taking of other security shall be a waiver.
    4. Equity — Rehearings—Cumulative Testimony — Discretion of Court.
    It is not an abuse of discretion to refuse a rehearing in an equity suit where the testimony offered is merely cumulative.
    Appeal from Kent; Perkins, J.
    Submitted October 9, 1916.
    (Docket No. 85.)
    Decided May 31, 1917.
    Bill by the Marquette Lumber Company against A. Le Grand Albee and others to enforce a mechanic’s lien. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Clapperton, Owen & Hatten, for appellants.

      Hatch, McAllister & Raymond, for appellee.
   Bird, J.

The plaintiff, a retail lumber dealer in the city of Grand Rapids, filed its bill to enforce a lien 'for lumber sold by it to defendants Van Dyke & Son, contractors, to erect a house for defendant A. Le Grand Albee and his wife, Helen, on a lot owned by his father and mother, Arthur N. Albee and Belle Albee, by the entireties. The chancellor decreed the foreclosure of the lien on the house, under the authority of 3 Comp. Laws, § 10712 (3 Comp. Laws 1915, § 14798), and defendants have appealed.

1. That plaintiff furnished the lumber and perfected its lien within the time allowed by law is not questioned. The defense made was that plaintiff had waived its lien. It is claimed that, while the house was being built, the contractor, Van Dyke, came to the elder Albee and wanted $750 to apply on the contract. Albee had already made two payments of $500 each on the contract, and was in some doubt as to what might be owing for lumber. At the suggestion of the contractor he went to the telephone and called Mr. Wood, who represented plaintiff as secretary and treasurer, and stated to him that Van Dyke desired $750 on account, and inquired of him what he should do about it, and that Mr. Wood answered:

“That is all right; you give him a check; he is perfectly good to us, and we will take care of him all right.”

It is further claimed that Mr. Wood later came to the house before it was finished, and while there confirmed his conversation over the telephone, and- added:

“That it was all right to pay him, because he had an open account with him, and he was perfectly good to them.”

Mr. Wood denied having these conversations with the elder Albee. The claimed waiver, therefore, became a question of veracity between Mr. Wood and Mr. Albee. There were some incidents and some testimony corroborating the testimony of each of these parties. We do not think it is necessary to go into them in detail. We have examined with care the evidence bearing on this question of fact, and after doing so we are unable to persuade ourselves that the decree made by the trial court should be reversed. The plaintiff furnished the lumber and perfected its lien iif accordance with the statute. The defendants did not protect themselves by demanding the statement which the law places within their reach before being obligated to make payment. They made two payments, aggregating $1,000, without even making inquiry if he were owing for labor and materials. When the contractor requested the third payment, defendants did not then demand the statutory sworn statement to which they were entitled. The burden of proof upon the question of waiver was upon the defendants, and we think'they have failed to discharge it. Before one entitled to a lien under the statute should be declared to have waived it, it ought to clearly and unequivocally appear that he has expressly waived it in compliance with the following statutory provision:

“No lien provided for in this act shall be defeated or waived by the taking by the lien claimant, from any person, of any security for such debt other than upon the real estate itself, in the absence of express agreement that the taking of such security shall be a waiver of the lien.”- 3 Comp Laws, § 10734 (3 Comp. Laws 1915,§ 14820).

2. The trial court was asked to grant a rehearing. The application was based upon affidavits of other parties for whom Van Dyke & Son had erected houses, to the effect that, upon inquiry by them of Mr. Wood whether they should make payment to Van Dyke & Son, Mr. Wood had made substantially the same answer as it is claimed he made to Mr. Albee. The proffered testimony was in the nature of cumulative testimony, and the chancellor did not abuse his discretion by refusing a rehearing.

The decree will be affirmed, with costs of this court to plaintiff.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not %it.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    GUSTIN v. McKAY.
    1. Deeds — Equity—Mistake—Evidence.
    On a bill to correct a deed evidence held, sufficient to sustain tbe finding that tbe grantor possessed a one-half interest only in the lands described therein and that by mutual mistake the deed was made to convey the entire interest,
    . instead of the interest of the grantor.
    2. Equity — Accounting—Estates ojp Decedents — Claims—Jurisdiction.
    On a bill against the administratrix of an estate and another .to correct a deed conveying to the decedent certain premises held by the grantor and plaintiff in common and for an accounting for advances made by plaintiff in excess of his share of expenditures on the lands, held, that a court of chancery had no jurisdiction to determine how much the estate might be indebted to plaintiff and that his remedy was by the presentation of a claim to the commissioners of the estate.
    Appeal fr.om Alpena; Emerick, J.
    Submitted October 17, 1916.
    (Docket No. 160.)
    Decided May 31, 1917.
    Bill by Henry K. Gustin against Agnes McKay, administratrix of the estate of James D. McKay, deceased, and guardian of the person and estate of Léonard J. McKay, and another, for the correction of a deed and other relief. From a decree for plaintiff, defendants appeal.
    Affirmed.
    7. S. Canfield, for plaintiff.

      Dayton W. Glosser, for defendants.
   Bird, J.

Plaintiff, on behalf of himself and Mr. Llewellyn Colwell, purchased at the May (1913) tax sale a large number of descriptions of land situate in Alpena county and had deeds issued therefor to Josie E. Colwell, the wife of Llewellyn. Josie Colwell continued to hold the legal title to the descriptions, or to such parcels thereof as were not redeemed or disposed of, until the decease of her husband, which occurred in the latter part of the year 1904. In June, 1905, she conveyed by quitclaim deed the remaining descriptions to James D. McKay, the bookkeeper and confidential man of plaintiff. In August, 1907, Josie Col-well conveyed an undivided one-half interest in the same descriptions to plaintiff. This deed contained the following recital:

“This deed is given for the purpose of conveying to Henry K. Gustin, his undivided one-half interest in these lands. Each of us originally owned an undivided one-half interest in said lands, but the title to the entire interest stood in my name. I heretofore, on the 1st day of June, 1905, by quitclaim deed, conveyed my one-half interest in said lands to James D. McKay, of Alpena, Mich.”

Matters drifted along with no further change in the title until after Mr. McKay’s death, when Agnes, his wife, was appointed administratrix of his estate, and attempted to sell one of the descriptions included in the list. It then developed that Mrs. McKay, on behalf of her husband’s estate, claimed the entire interest in the descriptions rather than an undivided half interest. Plaintiff thereupon filed this bill to have the deed from Josie Colwell to James D. McKay corrected, so as to convey an undivided one-half interest, instead of the whole of said interest. The bill also prayed for • an accounting of their dealings with reference to said lands.

The claim of plaintiff is that these lands were purchased and paid for by him and Colwell, and were deeded to Mrs. Colwell as a matter of convenience; that Mr. McKay, plaintiff’s bookkeeper, was desirous of being taken in on some of these purchases, and after Mr. Colwell’s death he purchased Mr. Colwell’s interest, and by mistake a conveyance was made of the entire interest, instead of an undivided one-half thereof. At the conclusion of the proofs the chancellor was of the opinion that the mistake was a mutual one and ought to be corrected and a decree was so made. We are of the opinion that the decree is right in this respect. The book and documentary evidence, much of which is in the handwriting of Mr. McKay, considered in connection with the undisputed testimony, is very persuasive that McKay bought only a half interest, and that he never claimed to own the whole. Objection is taken to certain testimony of plaintiff as being incompetent under the statute. We think there was sufficient competent testimony to justify the chancellor in reaching the conclusion which he did. The question is one purely of fact, and we shall refrain from reviewing it in detail, as it would be of no benefit to the profession.

That portion of the decree which provides for an accounting of the dealings of plaintiff and McKay with reference to said lands must be eliminated, as a court of chancery has no jurisdiction to determine how much the estate of James D. McKay may be indebted to the plaintiff. Flammer v. Cullen, 194 Mich. 585 (161 N. W. 846). So far as the record shows their relations were those of tenants in common of the lands, and if plaintiff has advanced more than his share of the expenditures in connection therewith, his remedy is to present his claim to the commissioners of the McKay estate for allowance.

With this part of the decree eliminated, it will be affirmed. No costs will be allowed either party.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: BIRD, J.

text:
    BOOTH & BOYD LUMBER CO. v. CALEDONIA INSURANCE CO.
    Insurance — Adjustment of Loss — Conclusiveness.
    Where an insurer of certain lumber objected to payment of a loss as determined by its adjuster on the grounds of advice from the land commissioner of the State that a portion of the timber from which the lumber was made was the property of the State and not of the insured, as claimed in proofs of loss, and of overstatement in such proofs of the quantity and value of the lumber destroyed, held, that these contentions were disposed of by First National Bank v. Insurance Co., 188 Mich. 251 (153 N. W. 1063); First National Bank v. Insurance Co., 188 Mich. 254 (153 N. W. 1064); Wilms v. Insurance Co., 194 Mich. 656 (161 N. W. 940).
    Error to Saginaw; Gage, J.
    Submitted October 17, 1916.
    (Docket No. 103.)
    Decided May 31, 1917.
    Assumpsit by the Booth & Boyd Lumber Company against the Caledonian Insurance Company of Scotland upon a policy of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Lucking, Helfman, Lucking & Hanlon, for appellant.

      Humphrey, Grant & Humphrey, for appellee.
   BIRD, J.

In December, 1912, plaintiff purchased from the Northern Timber Company .of Sault Ste. Marie 2,000,000 feet of hemlock, to be manufactured during the spring and summer of 1913 and placed in piles on the south shore of Lake Superior. Work was begun on the contract, and as fast as the lumber was manufactured it was placed in piles, estimated, and insured in accordance with the contract. When the advancements were made by plaintiff in accordance with the contract, bills of sale of the lumber were given to plaintiff and the insurance policies assigned to it and approved by the insurance companies, issuing them. In June, 1918, when the contract was only partially completed, the lumber was destroyed by fire. The insurance companies interested selected Mr.' Wright, an adjuster, and he determined that 386,000 feet of the 2,000,000 feet had been manufactured and piled and had been destroyed. This was covered by several policies. One of the number was issued by defendant for $1,200, which is the policy in suit. Proofs of loss were made and delivered to the defendant company. It acknowledged receipt of the same and made the following reply thereto:

“Detroit, Mich., Sept. 11, 1913.
“Booth & Boyd Lumber Company,
Mich
“Gentlemen: Re Caledonian Policy No. 2279063.
“Purported proof of loss under policy No. 2279063 of the Caledonian Insurance Company has been received, and is objected to for the following reasons:
“First. This company has been advised by the land commissioner of the State of Michigan that a portion of the timber from which the lumber was made, which it was stated was destroyed by fire and for which claim is made against this company for loss by fire, was the property of the State of Michigan. This being the case, false statements have been made in the said purported proof of loss.
“Second. It has recently come to the knowledge of this insurer that the Northern Timber Company did, some time in the month of January, 1913, transfer, assign and set over a portion, if not all of its assets, real and personal, including the property insured under the above named policy, to the Chippewa Land & Lumber Company, and to others whose names this insurer does not know, without giving any notice to this company of said action, thereby depriving this company of its right and privilege to pass upon whom and whom not it may insure. No mention of this is made in the said purported proof of loss, and the statement therein that 'no other person or persons had any interest therein’ is false.
‘‘Third. It has recently come to the knowledge of this company that the quantity and value of the lumber claimed to have been destroyed are grossly and falsely over stated in said purported proof of loss. .
“For the reasons stated above, and also for the reason that the said Northern Timber Company did not possess full title to the property which is said to have been destroyed by fire and thereby could not convey it, this company disclaims any liability under the said policy.
“Yours very truly,
“Caledonian Insurance Company,
“By [Signed] John B. Adams, State Agent.”

2. This defense was expressly waived by defendant’s counsel on the trial.

1 and 3. The contentions made in these defenses are answered by the former opinions of this court which will be found reported in First National Bank v. Insurance Co., 188 Mich. 251 (153 N. W. 1063); First National Bank v. Insurance Co., 188 Mich. 254 (153 N. W. 1064); Wilms v. Insurance Co., 194 Mich. 656 (161 N. W. 940) — the last case cited being especially applicable thereto. In view of this, no further consideration need be given to them.

The judgment of the trial court is affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    STEWART v. HART.
    Municipal Corporations — Ordinances — Violations — Health — Sentences — Female Prisoner — False Imprisonment.
    In an action for false imprisonment of plaintiff, a woman, by defendants, a justice of the peace who sentenced her and the sheriff who executed the sentence, for violation of a municipal health ordinance prescribing a fine or imprisonment for a violation thereof, promulgated under 1 Comp. Laws, § 3131 (2 How. Stat. [2d Ed.] § 5653, 1 Comp. Laws 1915, § 3045), authorizing the municipality to prescribe penalties for violation of any law, rule or regulation made by its board of health or any officer thereof and 2 Comp. Laws §§ 4412, 4459 (2 How. Stat. [2d Ed.] §§ 3109, 3155, 1 Comp. Laws 1915, §§ 5043, 5090), declaring any such violation to be a misdemeanor, held, that such proceeding against plaintiff was not civil process within 3 Comp. Laws, § 10342 (5 How. Stat. [2d Ed.] § 13043, 3 Comp. Laws 1915, § 12445), exempting a female from imprisonment on any process in any civil action.
    Error to Calhoun; North, J.
    Submitted October 24, 1916.
    (Docket No. 66.)
    Decided May 31, 1917.
    Case by Anna Stewart against Allen D. Hart and La Verne Fonda for false imprisonment. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.
    /. M. Hatch & Son, for appellant.

      John W. Bailey and Howard W. Cavanaugh, for appellee Hart.

      Robert H. Kirschman, for appellee Fonda.
   Bird, J.

Plaintiff was convicted of a violation of an ordinance of the city of Battle Creek and sentenced to ten days in the county jail. After serving her sentence she sued defendant Hart, the justice of the peace who imposed the sentence, and the sheriff of the county who executed it for false imprisonment. At the trial a verdict was directed for the defendants.

The controversy grew out of a complaint made by the health officer under the ordinance against plaintiff on account of her refusal to abate a nuisance on her premises consisting of sewage and water-closet deposit. No question is raised on the regularity or validity of the proceedings up to the time of sentence. The point relied upon by counsel is that the justice exceeded his jurisdiction in sentencing plaintiff to the county jail. He asserts that proceedings for a violation of the ordinance are merely civil proceedings; that under such proceedings a female is immune from imprisonment by force of the statute. .

1. The question therefore to be determined is whether these proceedings were civil proceedings within the .meaning of section 10342, 3 Comp. Laws (3 Comp. Laws 1915, § 12445). This section provides that:

“No female shall be imprisoned on any process in 'any civil action except in actions for the violation of 'any of the provisions of an act entitled ‘An act to prevent the manufacture and sale of spirituous or intoxicating liquors as a beverage,’ * * * in which actions she shall be liable to the same punishment as a male.”

Prosecutions under city or village ordinances have usually been regarded as civil proceedings, and it is clear that, if this case is to be so regarded, the plaintiff’s contention is right. City of Ishpeming v. Maroney, 49 Mich. 226 (13 N. W. 527). In this case it was said that:

“While it would seem quite clear that the charge upon which the respondent was arrested was not criminal in its character and that she could not therefore be imprisoned, yet there would seem to be two objections to the present remedy.”

In the case of Village of Northville v. Westfall, 75 Mich. 603 (42 N. W. 1068), wherein an attempt was made by the village authorities to review a proceeding under the ordinance which had resulted in the acquittal of the defendant, the court held that it was not permissible and indirectly considered this question. It was there said:

“It is claimed that imprisonment in such cases is not by way of punishment as for a crime or misdemeanor, but simply for the enforcement of the penalty. Yet the statute authorizes and the ordinance provides for imprisonment as well as fine, or both, in the discretion of the court; and upon a conviction the offender may suffer as long a term of imprisonment, as well as adjudged to pay a fine, as in any case of misdemeanor cognizable by a justice of the peace that is criminal in its nature.
“It is true that the proceedings for the enforcement of ordinances have always been regarded as civil actions, but where, under the statute, the enforcement is sought by resort to proceedings which are carried forward in all respects as criminal cases are prosecuted, by complaint and warrant, and where the court is authorized to inflict upon the offender not only the fine, and imprisonment for its nonpayment, but also imprisonment aside from a pecuniary fine, I have no doubt that upon a trial on the merits the offender has been as much in jeopardy, within the meaning of that term, as though the proceedings were strictly criminal.”

In People v. Vinton, 82 Mich. 39 (46 N. W. 31), the respondent was convicted of selling intoxicating liquors in violation of a village ordinance. In considering the question as to whether on appeal to the circuit court the case should be docketed as a criminal case, among other things, it was said:

“It is apparent from these provisions that suits to recover these penalties in an action of debt or assumpsit would and must be commenced, tried, and appealed as civil cases, with the village of Sparta as plaintiff. But when they are commenced by complaint and warrant they take on the nature of criminal proceedings, and may be commenced and prosecuted in the name of the people of the State of Michigan.”

In the case under consideration the legislature authorized the city of Battle Creek to pass ordinances pertaining to the public health, and empowered it to “prescribe penalties for the violation of any lawful order, rule or regulation made by the board of health, or any officer thereof” (1 Comp. Laws, § 8131 [1 Comp. Laws 1915, § 3045]), and also declared a violation of any such rule or regulation a misdemeanor (2 Comp. Laws, §§ 4412, 4459 [1 Comp. Laws, 1915, §§ 5043, 5090]). In pursuance of this authority the city of Battle Creek passed the ordinance in question and provided therein a punishment “by a fine not exceeding $100 and costs of prosecution, or by imprisonment in the county jail or city prison or in any workhouse or house of correction in the city, with or without labor, not to exceed 90 days.”

In view of the cases cited and the facts here presented, we are of the opinion that, where the act complained of is an offense against the statute as well as against the ordinance, and the proceedings are commenced by complaint and warrant and disposed of according to the rules of criminal procedure, they are not civil proceedings within the meaning and intent of the immunity statute relied upon. Taking this view of the question, the action of the trial court in directing a verdict for the defendants will be affirmed'

Kuhn, C. J., and Stone, Ostrander, 'Moore, Steere, and Brooke, JJ., concurred. Person, J^.diH not sit.


text:
    SWITCHMEN’S UNION OF NORTH AMERICA v. GILLERMAN.
    1. Insurance — Fraternal Benefit Insurance — Beneficiary.
    Where a fraternal insurance association by-law provides that benefits shall only be paid or certificates transferred to certain persons named in such by-law, benefits should be paid, where the beneficiary named in a certificate is not living at the death of the insured, to the persons named in the by-law in the order given therein, although the bylaw does not so provide.
    2. Marriage — Validity.
    A marriage in a county of the State between nonresidents of such county, is valid, although one of the parties makes a false affidavit as to her residence in such county in securing a license for the marriage for which she would be subject to penalty under 3 Comp. Laws, § 8602 et seq. (4 How. Stat. [2d Ed.] § 11437 et seq., 3 Comp. Laws 1915, § 11376 et seq.).

    Appeal from Kent; Brown, J.
    Submitted October 16, 1916.
    (Docket No. 149.)
    Decided May 31, 1917.
    Bill of interpleader by the Switchmen’s Union of North America against Lena Gillerman and Florence Gillerman to determine the right to the proceeds of a policy of insurance. From a decree for defendant Lena Gillerman, defendant Florence Gillerman appeals.
    Affirmed

      E. A. Maher, for appellant.

      Corie C. Coburn, for appellee.
   Bird, J.

Plaintiff shows by its bill that in October, 1901, August Gillerman, of Grand Rapids, became a member of its union, and there was issued to him a benefit certificate for the sum of §750, payable in the event of his death to his wife, Carrie Gillerman; that in June, 1906, the said August and Carrie Gillerman legally adopted Florence Gillerman and made her their heir; that subsequently, and in February, 1911, Carrie Gillerman died, and that in September, 1912, the said August Gillerman was remarried to. the defendant Lena; that in August, 1913, August Gillerman died without having designated another beneficiary in the certificate, although the by-laws of the union entitled him to that privilege, and as a result thereof the fund is claimed by both the widow, Lena Gillerman, and the adopted daughter, Florence Gillerman. The company admits liability, but states that it is unable to determine which of these parties is legally entitled thereto, and therefore it tendered the fund into court and prayed that the defendants interplead.

1. The chancellor determined that the widow was entitled to the fund, and he appears to have been influenced in reaching this conclusion by the fact that section 89 of the by-laws provides that:

“Payments of death benefits shall be only made, or certificates transferred to, a lawful wife, children, adopted children, parents, brothers and sisters of the whole blood, affianced wife, or persons lawfully dependent upon the member.”

His conclusion is that as payment must be made to some one in the class mentioned, and as the deceased made no designation, it should be paid to the persons named in the class in the order in which they are named, and that, the widow being first named, she should receive the fund. This conclusion finds support in the case of Masonic Mutual Belief Ass’n v. McAuley, 2 Mackey (D. C.), 70, which dealt with a similar case on the facts. It was there said in part that the fund should go to the people enumerated in the association’s by-laws (i. e., the widows, orphans, heirs, assignees, or legatees), and—

“the fund is to go to some one of these parties. They are mentioned disjunctively; the money is to be paid to the widow, or the orphans, or the heir, or the assignee or legatee. Now, that means one of two things, either that it shall go to some one of these to be selected by some authority, or else that they are to have precedence in the order in which they are named. But there is no authority provided for or indicated in either the charter or the by-laws by whom any One of these beneficiaries shall be selected; and therefore our conclusion is that the order in which they are named is the order in which they are to benefit by this fund— first, the widow; if there is no widow, then the orphans ; if there is no orphan, then the heir,” etc.

See, also, Riley v. Riley, 75 Wis. 464, 466 (44 N. W. 112); Bishop v. Empire Order of Mutual Aid, 112 N. Y. 627 (20 N. E. 562).

It is not an uncommon provision in certificates of this character to provide that, in the event the beneficiary predeceases the insured, the fund shall be payable to certain persons in the order named. In the present case, as in Masonic Mutual Relief Ass’n v. McAuley, supra, the persons to whom the fund was payable are named, but no direction is made as to which one shall be paid. We are of the opinion, however, that the construction in Masonic Mutual Relief Ass’n v. McAuley is a reasonable one, in view of the fact that the qualified beneficiaries are usually named in the order of nearness of relationship to the insured. As indicating the general purpose of the union in this respect, the latter part of section 89 rather strengthens this view. In the event of a divorce it provides that the fund shall be payable in the following order:

“First, to the children of the certificate holder, if any; if not, to the mother, if living; in case of her death, to the father, if living; in case of his death, to the brothers and sisters, providing there are any living.”

This direction for the payment of the fund, considered in connection with the foregoing designation ■of the persons entitled to the fund, is rather persuasive that it was the intention of the union that in a case like the present one the fund should be paid to the beneficiaries in the order in which they are named.

2. But counsel for the daughter insists that the record does not show a legal marriage between the insured and defendant Lena. This is based upon Lena’s testimony that she resided in Grand Rapids at the time of the marriage, whereas the affidavit for the marriage license avers that she was a resident of Ottawa county, where they were married, and that, as neither was a resident of Ottawa county, no valid marriage could be effected. The record shows that her people lived in Ottawa county, that she worked in Grand Rapids a part of the year, and that she lived at her parents’ home when not at work. We think her testimony is not inconsistent with the idea that she regarded her parents’ home as her home, and that she stayed or resided, as she put it, in Grand Rapids while at work. But even if this were not so, and, neither of them lived in Ottawa county at the time of the marriage, we are not prepared to hold that the marriage would be invalid. The statute (3 Comp. Laws, § 8602 et seq. [3 Comp. Laws 1915, § 11376 et seq.J) does not in terms make it so, but provides that any person making a false affidavit to secure a license shall be guilty of perjury and may be prosecuted therefor.

3. It is also urged that, if Lena was the lawful wife of the insured, the fund would go to the heirs of the insured, and in such event the adopted daughter would share in the fund. The thing which stands in the way of this contention is that the contract of insurance does not include the word “heirs” in the class of beneficiaries, but does provide that, if none of the beneficiaries named are capable of taking the fund, it shall revert to the union.

4. We are not impressed that the testimony justifies counsel’s contention that the adopted daughter should be decreed the fund because of a promise made by the insured to the parent of Florence that, if she would consent to her adoption, he would make the.fund payable to her.

Our conclusion is that Lena Gillerman, the widow, is entitled to the fund, and, as this conclusion is in accord with the holding of the trial court, the decree will be affirmed with costs of this court to defendant Lena Gillerman.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    GERMANIA LIFE INSURANCE CO. v. WIRTZ.
    Insurance — Life Insurance — Beneficiaries—Contingent Interests — Survivorship.
    A life insurance policy payable to tbe insured’s wife if she be living at his death and, if she be then dead, to her children, passes at the time of its issuance a vested interest to her contingent upon her surviving the insured, and to her children and to the children of her children contingent upon her nonsurvival of the insured.

    Appeal from Ionia; Davis, J.
    Submitted October 10, 1916.
    (Docket No. 94.)
    Decided May 31, 1917.
    Bill of interpleader by the Germania Life Insurance Company against Frank M. Wirtz, executor of the last will of Johannes Schild, deceased, Clark Hawley, special administrator of the estate of Henry Schild, deceased, Bertha Wagner, Lulu Fischer, Sophia Grafe and Herbert Schild to determine the right to the proceeds of a policy of insurance. From a decree for defendant Wirtz, the other defendants appeal.
    Reversed.

      R. A. Hawley, for appellants Schild.

      H. E. Kidder, for appellants Wagner, Fischer and Grafe.

      E. M. Davis, for appellee Wirtz.

      On right of children or -representatives of deceased child to share in the proceeds of policy of life insurance payable to “children,” see note in 41 L. R. A. (N. S.) 250.

   Bird, J.

Plaintiff shows that it is indebted to some one to the extent of $2,000; the same being the proceeds of an insurance policy issued in 1366 upon the life of Johannes Schild, who died in 1910. There are several claimants demanding the fund, and, it not being clear to plaintiff to which of them it could pay with safety, it tendered the fund into court and prayed to be advised.

Upon an application signed by Johannes Schild and his wife, Margaretha, a policy for $2,000 was issued on December 6, 1866, and made payable to “Margaretha Schild for her sole use, in conformity with the statute in such case made and provided, within 60 days after due notice and proof of the death of the said Johannes Schild, * * * and in case of the death of the said Margaretha Schild before the decease of the said Johannes, the amount of the said insurance shall be payable after her death to her children, for their use, or to their guardian, if under age.” When this policy was issued, Johannes and Margaretha Schild had two children, Margaret and Henry. Margaretha, the wife, died in August, 1900. Henry, the son, died a year later, in September, 1901, leaving one child, Herbert Schild. Margaret married and .changed her name to Wagner. She died in September, 1886, leaving three daughters, Bertha, Lula, and Sophia.

As will be noted, the wife and children were all deceased when Johannes died, in October, 1910. Johannes left a will, disposing of the proceeds of the policy to Anna Braun, a niece who cared for him in his last years. This contest is between the estate of Johannes and the four grandchildren mentioned. It is claimed on behalf of Johannes’ estate that there is a resulting trust in favor of his estate, for the reason that none of the persons named in the policy as beneficiaries was alive when Johannes died in October, 1910. On behalf of the grandchildren it is argued that upon the issuance of the policy a vested interest passed to the wife and children, and inasmuch as the wife did not survive the insured the children were entitled to the fund, and, they being dead, it would pass to their representatives.

1. The policy was made payable to Margaretha Schild, if living; if not, to her children. We think it is clear that upon the issuance of the policy a vested interest passed to Margaretha, the wife, and to Henry and Margaret, their two children. Continental Life Ins. Co. v. Palmer, 42 Conn. 60 (19 Am. Rep. 530); Lockwood v. Insurance Co., 108 Mich. 334 (66 N. W. 229); Voss v. Insurance Co., 119 Mich. 161 (77 N. W. 697, 44 L. R. A. 689); Michigan Mutual Life Ins. Co. v. Basler, 140 Mich. 233 (103 N. W. 596). While Margaretha’s interest was a vested one, it was contingent to the extent that, if she did not survive her husband, it would be extinguished. The interests of Henry and Margaret were also vested, but subject to the contingency that such interest would be divested if Margaretha should survive the insured. Notwithstanding the enjoyment of the respective interests of the children were contingent, their interests would, under the general rule, be transmitted to their children and they would take the same share their parents would have taken, if they had survived the insured. 4 Kent’s Commentaries, p. 261; 1 Redfield on Wills, p. 390; Continental Life Ins. Co. v. Palmer, supra; Lockwood v. Insurance Co., supra; Voss v. In surance Co., supra; Michigan Mutual Life Ins. Co. v. Basler, supra.

2. Had the facts involved in this case been adjudicated by the Massachusetts court, a different view would have been reached. Davis v. Insurance Co., 212 Mass. 310 (98 N. E. 1043, 41 L. R. A. [N. S.] 250). Had they arisen in Connecticut, and been passed upon by that court, the result would have been in accord with the conclusion here reached. Continental Life Ins. Co. v. Palmer, supra. Both courts have their followers among the State and Federal courts. Counsel for Johannes’ estate relies upon the Massachusetts case cited. While that case supports his contention, it also recognizes the diversity of opinion among the courts, and points out the grounds for the diversity, and cites the Voss and Basler Cases as committing this court to the Connecticut view. In that case it was said that:

“Courts in other jurisdictions differ as to the construction to be given to provisions in policies of life insurance like those which we are considering. In some it is held that the child of a deceased child takes the share which his parent would have taken if living. The leading case in favor of this construction is Continental Life Ins. Co. v. Palmer, 42 Conn. 60 [19 Am. Rep. 530]. See, also, In re Conrad, 89 Iowa, 396 [56 N. W. 537, 48 Am. St. Rep. 396]; Robinson v. Duvall, 79 Ky. 83 [42 Am. Rep. 208]; Michigan Mut. Life Ins. Co. v. Basler, 140 Mich. 233 [103 N. W. 596]; Voss v. Insurance Co., 119 Mich. 161 [77 N. W. 697, 44 L. R. A. 689]; Glenn v. Burns, 100 Tenn. 295 [45 S. W. 784]. These cases go upon the ground that the policy is to be regarded as a testamentary disposition in favor of his wife and children by the party whose life is insured, and should be construed accordingly. The other view is that the policy is to be regarded as a contract between the parties to it, and that in construing it the language used is to be given its ordinary meaning unless it is apparent that it was used in a different sense, and that, so construed, the word ‘children’ does not include grandchildren. This is the view adopted in United States Trust Co. v. Insurance Co., 115 N. Y. 152 [21 N. E. 1025]; Walsh v. Insurance Co., 133 N. Y. 408 [31 N. E. 228, 28 Am. St. Rep. 651]; Bradshaw v. Insurance Co., 187 N. Y. 347 [80 N. E. 203, 10 Am. & Eng. Cas. 266]; Roder’s Succession, 121 La. 692 [46 South. 697, 15 Am. & Eng. Cas. 526]; Winsor v. Beneficial Ass’n, 13 R. 1.149.”

3. To enforce his argument that the children did not have a vested interest, counsel points to the provision in the policy which permits an assignment thereof, and argues that Margaretha might have assigned the policy, and thereby cut off the contingent, or, as he calls it, the expectant, interest of the children. We do not agree with him in this contention. Margaretha and the insured could have assigned the policy, but the assignee would have taken it subject to the interest of the children. Chapin v. Fellowes, 36 Conn. 132 (4 Am. Rep. 49); Lockwood v. Insurance Co., 108 Mich. 334 (66 N. W. 229).

4. Both counsel have argued to a considerable extent in their briefs the equities surrounding the case. We are unable to see how the rule of construction to which this court has committed itself can be affected by those questions, and therefore it will be unnecessary to consider them. We are of the opinion that Herbert is entitled to the share which his father would have taken if living, and the three daughters of Margaret will take the interest which she would have taken if she had been living at the decease of her father.

The decree of the trial court must be reversed, and one entered agreeable hereto. The appellant Clark Hawley, as special administrator, will recover his costs in this court and tax them against' the executor of Johannes Schild’s estate.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: Stone, J. KUHN, C. J.

text:
    LABERTEAUX v. GALE.
    Wills — Bequests—Beneficiaries.
    A life estate, and not an absolute fee, is created as tbe interest of a widow where a will devises the testator’s estate to her with power of disposition and the remainder on such devisee’s death to others.
    Appeal from Calhoun; North, J.
    Submitted January 11, 1917.
    (Docket No. 105.)
    Decided May 31, 1917.
    Bill by Frank Laberteaux, administrator de bonis non of the estate of Walter H. Bidwell, deceased, against O. Harry Gale, administrator with the will annexed of the estate of Purleyette K. Bidwell, deceased, Ella C. Hughes, Mae B. Frink, Clara M. B. Hornschurch, and others for the construction of the will of said Walter H. Bidwell and for an accounting. From a decree for plaintiff, defendants Hughes, Frink and Hornschurch appeal.
    Affirmed.

      Weeks & Cooper (Bernard J. Onen, of counsel), for plaintiff.

      Beach & Beach (Herbert E. Winsor, of counsel), for appellants.
   Stone, J.

The bill of complaint in this cause was filed for the purpose of having the last will and testament of Walter H. Bidwell, deceased, construed, and for an accounting.

The plaintiff is the administrator de bonis non, with will annexed, of said deceased. Walter H. Bid-well and his wife, Purleyette K. Bidwell, were residents of the former village, now city, of Albion. They had no children. Mr. Bidwell died on December 2, 1884, and was survived by Ms widow. He left a will, which was duly allowed by the probate court of Calhoun county, of which the following is a copy:

“I, Walter H. Bidwell, of the village of Albion, in the county of Calhoun and State of Michigan, being of sound mind and memory, and understanding; and while in bodily health and in the possession of all my estate, do make, publish and declare this my last will and testament, hereby revoking and annuling all and every former will by me at any time made.
“Item I. I give and bequeath to my wife, Purleyette K. Bidwell, all of my estate, both real and personal, and all and singular my lands, tenements and hereditaments, my goods, chattels, moneys and effects, credits and dues, whatsoever and wheresoever found, for her free and absolute use and benefit and control with all the income and produce thereof for her free and absolute use during the term of her natural life, during which time she shall have full power to sell, deed, convey, invest and reinvest and fully to execute all the powers and privileges and the rights of ownership unlimited therein and to use all thereof which she shall deem necessary or useful to her health, comfort and happiness.
“Item II. Upon the death of my said wife, Purleyette K. Bidwell, one-half of whatever may remain of said estate, both real and personal, I give, devise and bequeath to my legal heirs, to be divided equally between them for their use and benefit forever, and the other half of whatsoever may so remain, I devise and bequeath to the legal heirs of my said wife, to be divided equally among them and to be theirs forever.
“Item III. The preceding item is subject to the modification that my said wife has and shall have the right and privilege to dispose of one-half of whatsoever may remain at her death of said estate by will, and to give, devise and bequeath the same to any person or persons in any manner or form she may wish, with power to give full and complete title thereto to such devisees and legatees as she may name forever. This right to give, devise and bequeath one-half of the remainder of said estate applies only to the half of the remainder specified for her legal heirs and the other half of the remainder shall go to my legal heirs as in item II provided.
“I hereby appoint my wife, Purleyette K. Bidwell, sole executor of this, my last will, and especially desire and direct that no bond or sureties be in anything required of or from her as such executor and I further direct that she be not required to make any return of property or render any account for or of the same in any manner, but I simply charge my property with all my just and lawful debts, and require her to pay the same.
“In witness whereof, I have hereunto set my hand and seal this 9th day of August, 1880.
“Walter H. Bidwell.”

The will was duly attested. The widow, Purleyette K. Bidwell, was appointed executrix of the will, and on January 10, 1885, an inventory and appraisal were filed, showing assets of upwards of $27,000. She did not file any account or any petition for the closing of the estate, and apparently without any action on her part, and without any notice to the heirs, or persons interested in the estate, the probate court on July 3, 1885, discharged her. Mrs. Bidwell died on May 23, 1914, leaving a will dated May 18, 1885. The defendant O. Harry Gale was duly appointed the administrator with the will annexed of her estate. Soon after the death of Mrs. Bidwell, a petition was filed by two of the heirs of Mr. Bidwell in the probate court in the estate of Walter H. Bidwell, praying that the estate be reopened and administration de bonis non with the will annexed be granted to the plaintiff. This petition was granted, and this bill was filed. The administrator of Mrs. Bidwell’s estate and all of the heirs of both Mr. and Mrs. Bidwell are before the court as defendants. The plaintiff, and the heirs of Walter H. Bidwell, deceased, contended below, and contend here, that it was the intention of the testator, Walter H. Bidwell, to give into possession of his widow all of his property, without distinction as to principal or income, for her to freely enjoy and have the benefit of, so long as she might survive him, even to the extent of selling or consuming the whole or any part, but with the limitation that it was a matter personal to her, and that he intended the consumption, sale, or disposition authorized to be limited by what she might deem necessary or useful to her health, comfort, and happiness, and that what was left, if any, on her death, should go, one-half thereof to his legal heirs, to be divided equally between them, and the other one-half to the legatees mentioned in the last will and testament of said Purleyette K. Bidwell. On the other hand, certain of the legatees mentioned in Purleyette K. Bidwell’s will, contended below, and contend here, that under the will of Walter H. Bidwell his widow becomes vested, as absolute owner, with title to all of his estate, and that the heirs of Walter H. Bidwell are not entitled to any part of said estate by virtue of his will. It was also claimed that the action of the probate court in discharging the executrix on July 3, 1885, was a construction of the will of Walter H. Bidwell and binding upon all parties. At the hearing below upon the pleadings and proofs, the latter consisting mainly of the will and the record proceedings, the trial court construed the will in favor of the contention of the plaintiff, and a decree was entered in accordance with such finding.

The learned circuit judge filed a written opinion which so clearly expresses our views that we insert a portion of it here. He said:

“The sole matter in controversy is whether this will by its terms vested in the wife of the deceased the absolute ownership and title to the property of which he died seised, or whether as to the one-half of such property, which the heirs of said deceased seek to recover, she_ was not possessed of such an absolute and unlimited title. I have given the briefs of counsel careful consideration, and I am brought to the conclusion that to give the widow of the said Walter H. Bidwell the absolute title to all of his estate would be directly contrary to the desire of the deceased as expressed in his will, so far as it concerns the portion of his estate now sought by the complainant. So far as the disposition of the estate is concerned, this will consists of three comparatively brief paragraphs. If the court was to hold that this will vested the absolute ownership to the property in question in the widow, Purleyette K. Bidwell, we would not only be compelled to ignore portions of the first of said three paragraphs, but we would have to entirely exclude from the will, as being meaningless, the remaining two paragraphs.
“I have been much impressed with the similarity of the will which is now before the court, and that which was adjudicated in the case of Jones v. Jones, 25 Mich. 401. I think, however, there are further limitations in the case at bar, in that the widow was limited to such disposition of the estate as would be 'useful to her health, comfort, and happiness.’ Also other terms of the will now under consideration seem to me to compel the construction thereof, which is in accordance with the contention of the complainant in this case, especially if we follow the rule laid down in the case of Jones v. Jones, supra, wherein it is said:
“ ‘In construing a will, the general intent, if it can be gathered from the whole instrument, will govern; and neither the usual sense of technical language nor the order of clauses will be allowed to disappoint the apparent and real purpose of the testator.’ ”

The defendants Ella C. Hughes and Mae Beadle Frink, two of the legatees mentioned in the will of Purleyette K. Bidwell, deceased, have appealed. In our opinion, to state this case is to decide it. In view of the numerous decisions of this court, we do not find it necessary to discuss cases arising in other jurisdictions.

The writer of this opinion had occasion to examine this question in a very similar case, and the decisions of this court in Farlin v. Sanborn, 161 Mich. 615 (126 N. W. 634, 137 Am. St. Rep. 525). We there said:

“Referring to the first question raised in this case, counsel for defendant have well said that there are two lines of authorities to be found in our reports which, on a superficial examination, seem to reach opposite conclusions on the same facts. A careful analysis of the cases, however, discloses a clear line of distinction. After a careful examination of our decisions, we are.of opinion that the will of Charles D. Farlin here under consideration created a life estate in Sarah M. Farlin, with a vested remainder over to his heirs living at the time of his decease. In our opinion the case is ruled by the following cases in this court: Glover v. Reid, 80 Mich. 228 (45 N. W. 91); Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111); Jones v. Deming, 91 Mich. 481 (51 N. W. 1119); In re Mallary’s Estate, 127 Mich. 119 (86 N. W. 541, 89 N. W. 348); Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744; 63 Am. St. Rep. 584); Hull v. Hull, 122 Mich. 338 (81 N. W. 89). Many other cases might be cited to the same effect.
“We leave this branch of the case by quoting the following language of Chancellor Kent, in Jackson v. Robins, 16 Johns. (N. Y.) 588:
" ‘We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee. The only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion.’
“With this doctrine in mind .we think that Jones v. Jones, 25 Mich. 401, Dills v. La Tour, 136 Mich. 243 [98 N. W. 1004], and kindred cases, are readily distinguishable from the case at bar.”

See, also, Clark v. Mack, 161 Mich. 545 (126 N. W. 632), decided the same day as was Farlin v. Sanborn. Since that time we have had similar questions before us. in the following cases: In re Moor’s Estate, 163 Mich. 353 (128 N. W. 198); Bateman v. Case, 170 Mich. 617 (136 N. W. 590); White v. Railway Co., 190 Mich. 1 (155 N. W. 719). In Re Moor’s Estate, supra, Justice Brooke quoted with approval the following language from Mansfield v. Shelton, 67 Conn. 390 (35 Atl. 271, 52 Am. St. Rep. 285):

“A life estate expressly created, will not be converted into a fee, absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive.”

To repeat the arguments and citation of authorities contained in Bateman v. Case, supra (a case not as strong for the complainant therein as is the instant case), would be a work of supererogation. In our opinion the White Case falls into the class with Jones v. Jones, supra, and may be distinguished from the instant case. We think that the instant case is a very clear one in favor of the contention of plaintiff.

We do not feel called upon to construe the will of Purleyette K. Bidwell, deceased, upon this record.

We do not think there is any merit in the claim that the probate court construed the will of Walter H. Bid-well, deceased, when the executrix ■ was discharged. What we said in Farlin v. Sanborn, supra, on a similar claim is applicable here.

The decree of the court below is affirmed, with costs against the appellants.

Ostrander, Bird, Moore, and Steere, JJ., concurred with Stone, J.

KUHN, C. J.

(concurring). I concur in the conclusion reached by Justice Stone, but I am further of the opinion that, in so far as there is any conflict in the cases, Jones v. Jones, 25 Mich. 401, and kindred cases, should be overruled.

Brooke and Fellows, JJ., concurred with Kuhn, C. J.


author: Stone, J.

text:
    BUTTERFIELD v. REYNOLDS.
    1. Release — Construction—Right to Contribution.
    Where á suit for contribution was brought against a co-surety on certain notes of a corporation which were indorsed by plaintiff and defendant and another as sureties, and paid by plaintiff, and plaintiff had received a trust mortgage as security for his indorsement, which mortgage was not recorded, and thereafter another corporation took over the assets and liabilities of the first corporation, and, upon a subsequent renewal of the notes, the new corporation gave to plaintiff as security for his continued indorsement thereon certain of its corporate bonds, and at the same time both corporations and plaintiff executed a written agreement in settlement of certain controversies between them in which it was declared that all claims growing out of the relationship of the parties, plaintiff and an employee of the second, or between plaintiff and defendant and their cosurety on the notes were fully settled, paid and discharged, and plaintiff gave a similar release to the other surety and received similar releases from both corporations, held, that such release of defendant was, with the releases and the settlement, and agreement part of one transaction and not entirely voluntary on plaintiff’s part.

    2. Same — Consideration.
    Such release of defendant was supported by a valid consideration, notwithstanding the bonds held by plaintiff were, on insolvency of the corporation, held to be invalid as such security.
    Appeal from Muskegon; Sullivan, J.
    Submitted January 12, 1917.
    (Docket No. 122.)
    Decided May 31, 1917.
    Bill by William W. Butterfield against Walter J. Reynolds to enforce contribution from defendant as a coindorser with plaintiff of certain promissory notes. From a decree for defendant, plaintiff appeals.
    Affirmed.

      Carpenter & Jackson, for plaintiff.

      Cross, Vanderwerp, Foote & Ross (Jacob Levin and Moses Levitan, of counsel), for defendant.

      On right of surety who gives his personal obligation for a debt on which he was jointly liable with other to enforce indemnity or contribution from latter, see note in L. R. A. 1915A, 898.

   Stone, J.

The bill of complaint in this cause was filed to enforce contribution from the defendant as a coindorser with the plaintiff of certain promissory, notes given by the Racine Boat Manufacturing Company to various banks and individuals. The defendant claimed that he had been absolved from all liability by reason of a general release given to him by the plaintiff on April 6, 1911. The court below sustained the defendant’s contention and dismissed the bill with costs, and from that decree the plaintiff has appealed to this court.

The release and the several agreements here involved were under consideration by this court in .the case of Butterfield v. Reynolds, 189 Mich. 152 (155 N. W. 442), to which we refer for a general statement of the facts involved. That was a suit on the law side of the court, and the particular note involved in that case is not under consideration here, but similar notes are involved, and are under consideration. Referring to that case, counsel for plaintiff in their brief in the instant case say:

“The plaintiff does not question the construction placed on the release, as determined by this court. He does claim, however, that there was no consideration for the release, and therefore it should not be held operative.”

Owing to this claimed want of consideration, it may be well to further state that the plaintiff, the defendant, and Paul B. McCracken were directors of the Racine Boat Manufacturing Company, and were coindorsers on certain notes given by the company for money borrowed for use in its business. While these notes were outstanding, the assets of the Racine Boat Manufacturing Company were purchased by the National Boat and Engine Company, a Maine corporation, and the latter assumed all of the indebtedness of the former. The notes of the former, company were given in renewal of those outstanding at the time of the purchase, as they became due, and the National Boat & Engine Company indorsed the notes, together with the parties hereto and McCracken. The Racine Boat Manufacturing Company ceased doing business, and it was, and is, concededly insolvent.

Long prior to the transfer of its assets to the National Boat & Engine Company the plaintiff, the defendant, and McCracken were the principal stockholders of the Racine Boat Manufacturing Company, and had been indorsers on a very much larger amount of the corporation paper than was outstanding at the time of the transfer, and the plaintiff then was the only one of the three who had any financial resources liable to be called upon in case the indorsers had to meet the paper. The corporation, by'practically unanimous vote of its stockholders and directors, authorized the execution to him of a trust mortgage to secure his indorsement. It was executed, but was not placed on record. He still had the instrument at the time the transfer was made to the National Boat & Engine Company, but at that time promise was made to him by those interested, and who were officers of the National Boat & Engine Company when organized, that he should be secured against loss by reason of his indorsements by bonds of the latter company secured by first mortgage on all its property, being a part of a large issue. Ultimately the president (this defendant) and the secretary of that corporation placed in the hands of Cross, Vanderwerp, Foote & Ross, as such security, first mortgage bonds of the par value of $88,000, the amount of the indorsements at that time being $44,000.

At the .time the bonds were delivered (in May, 1911) by the officers of the company there were no matters in controversy between the plaintiff and defendant personally. They were attempting to settle only certain unsettled claims between the plaintiff and the corporation. They made this settlement, and embodied it in a written instrument, on April 6,1911. See Butterfield v. Reynolds, supra. That instrument contains this language:

“It is further understood and agreed that this paper writing is but a memorandum of a contract, which is to be reduced to legal form and phraseology at Muskegon, Mich., with all convenient speed and dispatch to carry out the purposes and intentions of the parties, as embraced in a settlement and adjustment of their differences as made this day.”

Such further agreement was made on June 20, 1911, between both corporations and the plaintiff. After reciting the taking over of the property and indebtedness of the Racine Company by the National Company, referring to the outstanding notes, and the necessity of renewal thereof, the giving of the trust deed, the fact that the plaintiff herein was the secretary of the Racine Company and an employee of said National Company, the agreement contains the following:

“Whereas, there were certain items of indebtedness existing between said William W. Butterfield, said National Boat & Engine Company, and said Racine Boat Company:
“Now, therefore, it is hereby agreed, that all of the matters in difference and all claims of any kind or character growing out of the relationship existing between the parties hereto, or any of them, or between said William W. Butterfield and Walter J. Reynolds and Paul B. McCracken, two of the stockholders and officers of said Racine Boat Manufacturing Company, and of said National Boat & Engine Company, are fully settled, paid, and discharged, including any claim for salary made by said William W. Butterfield, a part of the said consideration for said settlement being,”

the surrender of said trust deed to the National Company, the continuation of his indorsements on the outstanding notes until said corporation or corporations were able to pay the same, that he should be protected by the deposit of bonds, etc., and concluding as follows:

“That the personal note of said William W. Butterfield for the sum of one thousand ($1,000) dollars, given to the National Lumbermen’s Bank, is acknowledged to be the note of said National Boat & Engine Company, to be paid by it, and the one thousand ($1,000) dollar bond deposited by said Butterfield to secure said note, to be returned to him within twenty days from this date, it being understood and agreed that should his indorsement be required in taking up this demand note, and in releasing said bond of one thousand ($1,000) dollars, that he shall be secured on his said indorsement as provided in paragraph 3.”

This agreement was signed:

“National Boat & Engine Company, by W. J. Reynolds, President; Racine Boat Manufacturing Company, by W. J. Reynolds, President; and by W. W. Butterfield.”

In September, 1911, the National Boat & Engine Company was duly adjudged a bankrupt by the United States district court for the district of Maine. The holders of the notes involved then made demand on the plaintiff for payment of the same. He paid the notes and took assignments thereof. Within the statutory time Cross, Yanderwerp, Foote & Ross and the plaintiff filed proof of claim before the referee in bankruptcy on the bonds for the amount of the indorsements. The claim of the $88,000 of bonds was duly heard before the referee, who disallowed the same. The plaintiff appealed to the district court, where the action of the referee was sustained, 216 Fed. 208, and he then appealed to the circuit court of appeals of the United States for the first circuit, and that court also disallowed the claim, using the following language in its opinion, 223 Fed. 956, 960 (139 C. C. A. 436, 440) :

“At the time the bonds were delivered Butterfield was a director in the National Company, and the referee in bankruptcy and the district court have found that the National Company was then insolvent, and that Butterfield knew it to be so. The evidence fully warrants these conclusions, and they meet our approval. The validity of the mortgage, as to the personal property included therein is in controversy; but it appears that, even if the mortgage should be held to include all of the property, real and personal, of the National Company, it would be inadequate to pay the outstanding bonds, not including those here in question, and that the $88,000 of bonds, if allowed, would not reduce the assets of the bankrupt estate available to pay the claims of the general creditors.
“If, in view of these facts, the transfer would not be voidable as a preference under section 60b of the bankruptcy act [citing cases]; nevertheless the title of the claimant to these bonds cannot be sustained for it would be inequitable and a fraud upon other bondholders to allow the claimant, a director of the company, to prefer himself by appropriating property^ of the company to secure an antecedent debt on which he was holden, at a time when the company was insolvent.”

The plaintiff made demand on defendant for the payment of one-half of the amount paid by him on the notes. He demanded one-half, because both of the companies were insolvent, and McCracken, the other indorser, it was claimed, was both insolvent and resided outside the jurisdiction of the court. Defendant refused to pay anything because of the release of April 6, 1911. In speaking of this release we said in Butterfield v. Reynolds, supra:

"It will be noted that the release given was of the most general kind and very broad in its terms. Taken in the light of the circumstances under which this release was drawn and the purpose for which it was executed and delivered, we think that it was intended not alone to release defendant from liability arising from his being a cosurety with plaintiff on any particular note or notes then existing, but that it was also intended to release defendant from all liability arising out of his being a cosurety on any indebtedness, as distinguished from evidence of indebtedness, existing at the time. The plaintiff testified that he did not consider either the defendant or .McCracken as being financially responsible, and that he alone would probably be the one to whom the holders would ultimately look for the payment of this indebtedness, if it were not paid by the company; and he further testified that it was for the purpose of protecting himself against such contingent liability that he demanded security in-the form of $88,000 of bonds of the National Boat & Engine Company, which he at the time considered ample security for all the indebtedness for which he was a surety. Having taken the security, it was only reasonable that he should release his cosureties. The claim of the plaintiff is not that the release was without consideration or that it was obtained by fraud.”

In the instant case it is the claim of plaintiff that his title to or right to recover on the bonds renders the release inoperative and void. He also claims that the release of defendant was entirely voluntary, and formed no part of the transaction of the settlement. In this last claim we cannot agree with the plaintiff. There were other releases given. Mr. Butterfield not only gave a similar release to McCracken, but he himself received releases in the same form, from both of the companies. The settlement, the agreements and the releases formed one' transaction, as appear by the documents themselves, and really as testified to by the plaintiff, although he sought in the instant case to state differently. On his cross-examination the following occurred:

“Q. And, as I understand, this was one transaction, one settlement that was effected. •
“A. Yes, sir.”

On redirect examination he testified:

“I testified on my cross-examination that this was one transaction, one settlement. I mean by that that it was all done at the meeting in Mr. Reynolds’ office of the National Boat & Engine Company. I think it was at one sitting, or an adjourned sitting of the same day.”

It is the claim of the defendant that the release in question was supported by a valuable consideration, not limited to the $88,000 of bonds, and that such release was within the contemplation of the parties when they met on April 6, 1911. On April 4, 1911, the defendant wrote to the plaintiff the following letter:

“April 4, 1911.
“Mr. W. W. Butterfield,
“Muskegon, Mich.
“Dear Wül:
“In accordance with your telephone, I enclose herewith check for $15 covering your expenses to our directors’ meeting. I also inclose herewith statement of your account as it appears on the company’s books. You will note from this statement that there is an overdraft of $231.16 which was allowed under the arrangements we had at the time Washburn was present with us in Ross’ office, on the understanding that it should in no way prejudice our rights.
“Paul stayed over in Muskegon yesterday morning and I threshed the matter out with him again, and he absolutely refused to surrender any of his securities, so it gets down to a personal matter with me. As I have said before, I cannot and do not understand that you have any other rights than those shown by the statement inclosed, but for the sake of good fellowship I am willing to sacrifice my own securities for the purpose of getting this entire matter adjusted without litigation, and the offer that I am making is made with the express understanding that I do not thereby acknowledge any of your claims, or waive any of my own rights.
“Paul not being willing to do anything in the matter, and the National Boat & Engine Company or the Racine Boat Manufacturing Company not being interested, it became necessary for me to give up my own securities, and for the purpose of getting the matter closed at this time, I propose to give you $6,000 of my own securities in the National Boat & Engine Company, divided as follows: $5,000 in the National Boat & Engine Co. 6% first mortgage gold bonds; $1,000 in National Boat & Engine Co. 7% preferred stock.
“The above to be in full settlement of your entire matter with the Racine Boat Manufacturing Co., National Boat & Engine Co., Paul or myself personally, and is to clean up all our transactions with the exception of the $5,000 note you gave to the Racine Boat Manufacturing Co., and which the National Boat & Engine Co. took over. This note, according to its agreement, is to be paid from dividends of the company, and, of course, is not collectible in any other way.
“I trust you will find it agreeable to accept this proposition and end a matter that has not been pleasant to either of us.
“I am prepared to turn the securities over to you at once.
“Yours very truly,
“W. J. Reynolds.”

While denying that this letter had anything to do with the settlement, on cross-examination plaintiff testified:

“Q. Now, Mr. Butterfield, the letter has this much to do with it, does it not, that it led up and was a part of the prior negotiations that finally culminated on April 6th in the making of the agreement that has been introduced in evidence here?
“A. Yes.”

The plaintiff also testified as follows on cross-examination :

“Q. Now, referring to this agreement of June 20, 1911, defendant’s Exhibit D, you have already stated that the $88,000 of bonds provided for therein were deposited in escrow in May, 1911. It is a fact, is it not, that all of the terms and conditions of this agreement were complied with on both sides, that is, by you and by the other parties ?
“A. I think so. After the making of this agreement I was not called.upon to pay the $1,000 note given to the National Lumbermen’s Bank mentioned in the fourth paragraph of the agreement. The $1,000 bond I put up to secure the payment of that note was the bond of a coal company, an investment bond of my own. The market value was $1,000. It was worth par. I sold it at par shortly after I got it back, and I got it back according to the terms of that agreement. It was a little longer .than the terms stated, but it came back subsequently. The notes that have been introduced in evidence as well as the notes at the Hackley National Bank were all renewals of former notes given by the Racine Boat Manufacturing Company prior to January 1, 1911, or they were renewals of renewals. On the face of the note the Racine Boat Manufacturing Company was the principal debtor. The consideration for the original notes was money that went to that corporation. The National Boat & Engine Company took over the property and the assets and assumed the obligations of the Racine Boat Manufacturing Company on January 1, 1911, I believe. At thatiime Mr. Reynolds and Mr. McCracken and myself owned about 90 per cent, of the common stock of the Racine Boat Manufacturing Company. For our stock in-the Racine Boat Manufacturing .Company we got stock and bonds of the National Boat & Engine Company. I can’t say offhand how much preferred stock I had. It is in the record somewhere. I don’t remember just what it is. I haven’t referred to it in a long while.
“Q. Now you received, did you not, $8,650 in bonds, $14,770 in preferred stock, and $184,270 common stock?
“A. I couldn’t say now, but it is about that proportion. I don’t remember the figures. In addition to the $88,000 of bonds that were placed in escrow with Cross, Yanderwerp, Foote & Ross on my surrender of the trust deed I was not only protected on my personal note of $1,000 and received back my $1,000 bond of the coal company,' but I also received $6,750 in bonds of the National Boat & Engine Company that were turned over to me by Mr. Reynolds.”

Assuming, without deciding, that the failure of plaintiff’s title to the $88,000 bonds, by reason of the subsequent bankruptcy of the National Company, and plaintiff’s relation to it, operated as a failure of consideration in so far as the bonds were concerned, we are of the opinion that there was ample valid consideration for the giving of the release in question. We need only refer to the $1,000 bond and the plaintiff’s release on the $1,000 note and the releases which he received from both of the companies. According to plaintiff’s testimony, he did not consider the defendant financially responsible. He had a right to release him for a small consideration. No fraud is claimed; and it was early held in this State that, if there are several considerations, and some fail, yet if the others are good and sufficient, the good will sustain the promise. Wesleyan Seminary v. Fisher, 4 Mich. 515; Alderton v. Williams, 139 Mich. 296, 299 (102 N. W. 753). The adequacy of consideration is not involved here. 6 Am. & Eng. Enc. Law (2d Ed.), pp. 694, 780; 9 Cyc. p. 365; 34 Cyc. p. 1053.

■ The following language is pertinent here, as relating to the release:

“The language is plain and intelligible, and its meaning and effect could not be misunderstood by any person of ordinary intelligence, and, unless the plaintiff was induced to sign it by the fraud of the defendant, or it was wholly without consideration, it is binding upon the plaintiff, and he cannot recover if he signed the paper deliberately, with full knowledge of its contents, or not under the influence of any mistake,” etc. Averill v. Wood, 78 Mich. 342, 354 (44 N. W. 381, 385).

•We think the trial court reached the right conclusion, and the decree below is affirmed, with costs to the defendant.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, knd Fellows, JJ., concurred.