did not apply to any existing indebtedness of the Houston Company, but applied only to such loans as the bank might thereafter make to the company, relying on the guaranty. The bank made no loans to the company after receiving the guaranty, and before Mr. Wernicke withdrew it on March 16, 1908. Therefore there is no liability on the guaranty.

The trial court permitted defendant to testify that his understanding was at the time the guaranty was signed that it would apply only to future indebtedness. This was allowed over plaintiff's objection, on the ground that the guaranty was ambiguous in this respect. This was error. The undertaking of defendant was a simple contract of guaranty, providing for a cash credit of $1,500 at the plaintiff bank, and the language creating that obligation was involved in no such verbal haze as would justify invoking that exception to the general rule excluding parol testimony.

The case of the Detroit Free Press v. Pattengill, 155 Mich. 272 (118 N. W. 927), is relied upon to demonstrate that the trial court was in error in refusing to hold that defendant's contract of suretyship never became operative against him by reason of the failure of the plaintiff to advise him that it was accepted. In the case cited the obligee in the bond sent to one Kimmel a blank bond, with the suggestion that, if he would secure a responsible surety, it would furnish him newspapers. The surety was secured and the bond returned, and nothing was ever said by the Detroit Free Press Company as to whether it accepted the bond. In the instant case the suggestion of suretyship was made by the defendant himself. When the suggestion was communicated to the plaintiff, it prepared the bond and returned it to the defendant for his signature. The drawing up of the bond and returning it to the defendant for his signature after being advised that he was willing to become surety were acts which amounted to a notice of its accept

ance. And therein lies the difference between the instant case and the case cited.

It is urged that, inasmuch as the $1,575 note was discounted by plaintiff on the 11th day of February, nine days before the guaranty was executed, there was no consideration passing to the debtor which would support the guaranty. While there was an adjustment of the financial matters of plaintiff and the Houston Company before the guaranty was signed, it is obvious that they were adjusted and additional credit extended to the company on the strength of defendant's letter, in which he promised to execute a guaranty to the amount of $1,500. It is doubtless true, as argued by counsel, that the letter itself did not amount to a guaranty; it was simply a promise to execute a guaranty. And it is quite likely that the bank took some chances in adjusting their matters in the way they did before they were advised that the guaranty had been executed; but that was a contingency which never happened. The guaranty was subsequently executed as promised, and the mere fact that it would have been difficult to enforce payment if the guaranty had not been executed affords no reason why the additional credit extended to the company in reliance upon defendant's letter should not serve as a consideration to support his guaranty. If any further consideration were needed, it can be found in the fact that plaintiff was threatening the Houston Company with legal proceedings if it did not make payment of its overdraft.

But it is argued that the plaintiff concealed the fact from defendant that the company was indebted to the bank, and therefore it was such a concealment of a material part of the transaction as would make it inequitable to enforce the contract. Unless the concealment amounted to a fraud, the surety would not thereby be released. If the defendant had inquired

as to the fact, and the truth had been evaded, or otherwise concealed, it would then have amounted to a fraud; but, if no inquiry were made, the failure of plaintiff to disclose to the guarantor the indebtedness of the Houston Company to the bank would not amount to a fraud. 1 Brandt on Suretyship (3d Ed.), § 473; Hamilton v. Watson, 12 Clark & Finnellys (Eng.), 108.

The defendant did not undertake by his contract to guarantee the payment of any existing note or overdraft owing by Houston & Co. to the bank. What he proposed to do in his letter, and what he afterwards did do, was to guarantee a cash credit at the bank for Houston & Co. After he did so he was liable to the extent of his guaranty, whatever the form of the evidence of indebtedness might be. After the money was loaned to Houston & Co. in reliance upon the defendant's letter and guaranty, it was at its disposal, and if that company saw fit to use some or all of the $1,500 in paying existing indebtedness to the bank, of what importance is it, and how was the defendant prejudiced by such application? The defendant knew before he signed the guaranty that the Houston Company was experiencing some rough weather, and needed assistance, and he figured out himself in his letter that the company would need a credit of $1,200 or $1,500, and he consented to become surety in that amount to assist the company in making payment of its pressing demands, and it appears to me to be of no moment that the bank happened to be the owner of one of those demands. Our conclusion is that the defendant is liable on his contract. Hamilton v. Watson, supra.

The question then resolves itself into one of how much of the indebtedness to the bank is covered by defendant's guaranty. The testimony shows that $520 of the note for $1,520 which was owing to the

plaintiff when the company failed was made up of the balance due on two notes owing to plaintiff by Houston before the company was formed. It is true that upon some of the renewals of these notes, the company appeared as indorser, but the trial court found that there was no consideration shown for such indorsements. If the $520 was made up of the individual indebtedness of Houston, neither Houston nor the bank had any right to merge it with the amount owing by Houston & Co., and thereby compel the guarantor to pay Houston's individual debts. The $520 is, therefore, not covered by defendant's guaranty. It further appears that a credit of $350 was extended to the company after the defendant withdrew his guaranty. It is clear that this sum should not be included within the guaranty.

For the reasons indicated, the judgment is reversed, and a new trial ordered.

BROOKE, C. J., and MCALVAY, MOORE, and STEERE, JJ., concurred with BIRD, J.

OSTRANDER, J. (dissenting). Plaintiff relies upon an agreement of defendant-a contract and, theoretically, upon something done by plaintiff in reliance upon it. Treating the making out and forwarding of the form of guaranty as a notification to defendant that the plaintiff had received and would accept the offer contained in defendant's letter to his friend, how can it be said that before that time there was a contract an agreement of any sort? Clearly, there was Now, it is undisputed that after the contract was entered into plaintiff did nothing in reliance upon it.

none.

The lower court was right, and its judgment should be affirmed.

J.

KUHN and STONE, JJ., concurred with OSTRANDER,

185 Mich.-19.

MERCER v. STEPHENS.

1. TAXATION-REDEMPTION-QUITCLAIM DEED RIGHT OF GRANTEE

-TAX TITLE.

A daughter, as heir of one who held regular title of real property, was entitled to redeem from the tax purchase, where the records of the probate court showed that she had been adjudged to be the sole heir of such owner: complainant, who purchased from the daughter by quitclaim deed, acquired the interest she had and prima facie was entitled to maintain a bill to redeem.

2. SAME

NOTICE TO REDEEM

CHAIN OF TITLE.

SERVICE GRANTEE IN REGULAR

Where there was a break in the regular chain of title because of the omission to record a deed which was placed upon record after the commencement of suit to redeem, there was a sufficient showing to justify the service of notice to redeem upon the last grantee in such regular chain of title after the alleged break.

3. SAME NAMES-IDEM SONANS.

Where the notice was served upon John Chingkuom, who was the last grantee in the regular chain of title, but the name which appeared in the notice was spelled "Chinkwam," and the person so named was unable to read or write, and his name was pronounced as if spelled "Chinkwam," he was sufficiently identified for the purpose of serving notice to redeem.

4. SAME-ESTATES OF DECEDENTS-REDEMPTION.

Although the person to whom notice to redeem was directed had died, where the sheriff returned that after diligent search he was unable to obtain service upon or to learn the address of the decedent, or his heirs, or personal representatives, etc., the return of the sheriff must be accepted as final, and sufficiently authorized the publication of the notice as required by statute.

Appeal from Mason; Withey, J. ruary 11, 1914. (Docket No. 177.)

Submitted Feb

Decided April 6,