Applying the test stated to the facts of the present controversy, it is clear that the plaintiff should recover for the work done in cutting the old floor away from the wall and in removing such part of the old floor as was necessary. The warehouse was improved to that extent by labor, the benefit of which had inured to the defendant when the fire occurred. If the fire had not occurred, the undesirable floor would have been out of the way, precisely as the contract contemplated. Likewise, the contractor should recover for the completed concrete footings. The contractor should not recover for material furnished or labor performed in the construction of either column or floor forms. They were temporary devices, employed to give form to the structure which was to be produced. They were not themselves wrought into the warehouse, were to be removed when the work was completed, and inured to nobody's benefit but that of the contractor. The contractor should not recover for either upright or floor rods. or for the labor of putting them in place. While the rods were wired together, they were not attached to the building and would not have been wrought into the structure until the concrete was poured. If the fire had not occurred, the contractor could have removed the rods without dismembering or defacing the warehouse, and the defendant could not have held the rods as amalgamated into the fabric of his structure. There could be no recovery for superintendence and use of tools, except as regards that part of the work done which had become identified with the warehouse itself. Other items sued for should be allowed or disallowed by application of the principle indicated. The defendant says he had a right to a specific kind of completed floor which he could test and which would comply with a prescribed test, and that cutting away the old floor from the walls of the building. and concrete footings for a floor which was never laid, were of no value to him. The test is whether or not the work would have inured to his benefit as contemplated by the contract if the fire had not occurred. The cutting away of the old floor was done according to the contract, and the defendant had the benefit of that work as soon as it was finished. The evidence was that putting in the concrete footings was the next step in the construction of the concrete floor. Those footings would have inured to his benefit, in accordance with the contract, if the fire had not occurred. They became a part of his warehouse. Unless he could reject them for want of substantial compliance with the contract so far as they were concerned, he was benefited by them at the time of their incorporation into his structure. Test of a completed concrete floor was one of the things rendered impossible by the fire. * * * The judgment of the district court is reversed, and the cause is remanded, with direction to ke such additional evidence as may be necessary and determine the rights of the parties according to the views which have been expressed. * * * JOHNSTON, C. J. (dissenting in part). I am of opinion that the upright rods set up and tied together were a part of the building, and a recovery for them should be allowed. * * * Section 1. CHAPTER IV RIGHTS. OF THIRD PARTIES IN CONTRACTS Introduction. 2. Contracts for the Benefit of a Donee of the Promisee. 3. Contracts for the Benefit of a Creditor of the Promisee. 6. Interests Capable of Assignment. Nature and Extent of the Interest Acquired by the Assignee. SECTION 1.-INTRODUCTION Is it possible for a contract between A. and B. to create rights in C., C. not being otherwise a party to the contract, which may be enforced by C.? After a contract has been entered into by A. and B., is it then possible for either of them to transfer to C. rights or duties which arise out of the contract? Stated generally, these are the two questions with which this chapter deals. It will be noticed that these two questions have to do with situations which are alike in this respect: that a person is interested in a contract to which he is not a party. The two situations referred to differ in this respect in the first case, the third party's rights, if he has any. arise by force of the terms of the contract itself; in the second case, the third party's rights, if they are to arise, come into existence, not by virtue of the terms of the original contract, but as the result of some independent transaction entered into by him with one of the parties to the contract subsequent to its execution. SECTION 2.-CONTRACTS FOR THE BENEFIT OF A DONEE OF THE PROMISEE Turning our attention to the first of these questions: Suppose that A. and B. enter into a contract by the terms of which A. is to transfer property to B. and B. is to pay the purchase price. A. desires to make a gift to C., and as a part of the contract B.`promises to pay the amount of the purchase price to C.? If B. tails to perform, may C. sue B.? What difficulties are in the way? In order to make an irrevocable gift, the law usually requires delivery. If C., the beneficiary, were allowed to sue B., the promisor, would such result infringe upon the rule relating to the formalities for making a gift? Is it possible to regard B. as a trustee of any property for the use of the beneficiary, C.? Clearly A., the party to whom B. made the promise to pay C., being a party to the contract. may sue B. if B. fails to perform. How much may A. recover? Has A. sustained any damage? If A. recovered from B. the full amount, could C. recover this sum from A.? These are some of the difficulties presented in attempting to give a person rights in a contract in which he is to be the sole party to be benefited. And yet it will readily be recognized that the situation described above is illustrated by the very common case of a life insurance policy taken out by A, upon his own life in favor of C. Is the life insurance case a special case and to be treated differently from similar cases? In other words, the question is: "What is the real basis for allowing C., a beneficiary in a contract between A. and B., to sue the promisor in the contract? May all beneficiaries sue, whatever their relations to B. and C., or may only some of them sue, depending upon the existence of certain circumstances. If the latter be true, what are these special circumstances? KNIGHTS OF THE MODERN MACCABEES v. SHARP. (Supreme Court of Michigan, 1910. 163 Mich. 449, 128 N. W. 786, Bill of Interpleader by Knights of the Modern Maccabees against. Malinda Sharp and John L. Clink, guardian for Lena Sharp and others. Defendant Melinda Sharp appeals. OSTRANDER, J. The issues raised by the answers to complainant's bill of interpleader are sufficiently indicated in the opinion of the learned trial judge, as follows: "On July 23, 1896, Asa B. Sharp and his first wife, Minnie D. Sharp, lived in the village of Yale, St. Clair county, Mich. At that time he was 30 years of age and his wife 28. They had five small children. He was a laboring man, and his family was dependent on his earnings for support. Some time prior to the above-named date, the husband and wife entered into a contract by the terms of which he agreed he would take out a policy of insurance in complainant order in which his wife should be named as beneficiary and so remain during her life and his, and, in case his wife should die before he did, that their children should always remain the beneficiaries; the wife agreed she would take out a policy of insurance in the Ladies of the Maccabees, a woman's fraternal benefit association, in which her husband should be named as beneficiary, and so remain during his life. and hers, and, in case her husband should die before she did, that their children should always remain the beneficiaries. The consideration for this agreement on the part of each was the promise made by the other. The object of this mutual agreement was the protection of the children. * * * On July 23, 1896, a policy for $1,000 was issued by complainant association to Asa B. Sharp, in which his wife was named as beneficiary, and on the same date a policy of like amount was issued by the Ladies of the Maccabees to Minnie D. Sharp in which her husband was named as beneficiary. * * * On January 1, 1902, Minnie D. Sharp deceased, and the proceeds of her policy in the Ladies of the Maccabees was paid to her husband, Asa B. Sharp, who had remained the beneficiary in her certificate since the time it was issued. On August 17, 1904, Asa B. Sharp married Melinda Sharp, now his widow. On April 19, 1906, Asa B. Sharp signed a paper revoking his former designation of beneficiary in his policy, and designated Melinda Sharp, his wife, as the new beneficiary. * * * * Asa B. Sharp surrendered his first certificate, and on May 8, 1906, a new one was issued to him by complainant association in which claimant, Melinda Sharp, was named as beneficiary, and she remained as such designated beneficiary up to the time of her husband's death." * * Assuming the mutual promises never to change beneficiaries to have been made as is claimed, upon what theory may the children enforce the contract? No promise was made to them or any of them, no consideration for the promise moved from them. The agreement related to no fund in existence. No trust was created. I find no reason for thinking that the parties were not at liberty, at any time, to revoke their promises. It is true that after the death of the mother there could be no mutual revocation, but, unless some legal interest in the performance of the promise vested in the children when the promise of the father was made, such interest never vested. It is the general rule in England that a third person cannot become entitled by the contract itself to demand the performance of any duty under the contract. Pollock, Prin. of Contracts (7th Ed.) 199. The rule, contracts creating trusts aside, is the same whether such enforcement is attempted at law or in equity. In this state the English rule has been followed when the attempted enforcement of the contract by a third person was at law. ***There is a well-recognized exception to the rule in England as to the provisions contained in a settlement made upon and in consideration of marriage, for the benefit of children to be born of the marriage. * * * The contention of appellees is that the principle underlying the English exception to the rule should be extended, at least in equity, so as to support the enforcement by children of contracts made by their father or mother, with each other or with strangers, for their benefit, and Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724, 44 L. R. A. 170, 70 Am. St. Rep. 454, is cited and relied upon. The courts of New York do not follow the English rule. * * * The general rule in this state is regarded as settled. I see no reason for saying that it is not the same in proceedings at law and in equity. To what extent and under what circumstances an exception to the rule should be recognized in favor of the enforcement by children. of contracts (other than those creating trusts), made for their direct or indirect benefit, by persons nearly related to them or by those sustaining the duty to provide for them, is a subject which needs to be considered no further than this, that the mutual promises of a father and mother, who each hold the certificate of a beneficial association in which the other is named as beneficiary, never to change the beneficiaries so named, create no legal or equitable interest of the children in the fund derived on the death of the surviving parent, although, if no such change had been made, they would have been the legal beneficiaries, and although the mutual promises of the parents contemplated that in such case they should be the legal beneficiaries. The case presented is ruled precisely as it would be ruled if the children, in the lifetime of the father, were seeking specific performance of the alleged contract or an injunction to restrain a threatened change of beneficiaries. It may be added, although the suggestion relates rather to the facts than to the law, that the children, appellees, appear to have no particular claim, as against the appellant, to equitable consideration. It is not claimed that appellant knew of any ar rangement between her husband and his former wife about life insurance. His relation to her is a sufficient reason for insuring his life for her benefit. If, instead of pursuing the method of substituting one beneficiary for another, he had refused to pay assessments, thus permitting the original certificate to lapse, and procured one in which appellant was named as beneficiary, it is clear that her right to any fund derived therefrom and from his death, would be unassailable. The decree below, except as to the provision for costs to complainant, is reversed, and a decree will be entered in this court for the payment of the fund to the appellant, who will recover of the appellees the costs of both courts. SEAVER V. RANSOM et al. (Court of Appeals of New York, 1918. 224 N. Y. 233, 120 N. E. 639, 2 A. L. R. 1187.) Action by Seaver against Ransom and another, as executors, etc., of Samuel A. Beman, deceased. From a judgment for plaintiff, defendants appeal. POUND, J. Judge Beman and his wife were advanced in years. Mrs. Beman was about to die. She had a small estate, consisting of a house and lot in Malone and little else. Judge Beman drew his wife's will according to her instructions. It gave $1,000 to plaintiff, $500 to one sister, plaintiff's mother, and $100 each to another sister and her son, the use of the house to her husband for life, and remainder to the American Society for the Prevention of Cruelty to Animals. She named her husband as residuary legatee and executor. Plaintiff was her niece, 34 years old, in ill health, sometimes a member of the Beman household. When the will was read to Mrs. Beman, she said that it was not as she wanted it. She wanted to leave the house to plaintiff. She had no other objection to the will, but her strength was waning, and although the judge offered to write another will for her, she said she was afraid she would not hold out long enough to enable her to sign it. So the judge said, if she would sign the will, he would leave plaintiff enough in his will to make up the difference. He avouched the promise by his uplifted hand with all solemnity and his wife then executed the will. When he came to die, it was found that his will made no provision for the plaintiff. This action was brought, and plaintiff recovered judgment in the trial court, on the theory that Beman had obtained property from his wife and induced her to execute the will in the form prepared by him by his promise to give plaintiff $6,000, the value of the house, and that thereby equity impressed his property with a trust in favor of plaintiff. Where a legatee promises the testator that he will use property given him by the will for a particular purpose, a trust arises. * * * Beman received nothing under his wife's will but the use of the house in Malone for life. Equity compels the application of property thus obtained to the purpose of the testator, but equity cannot so impress a trust, except on property obtained by the promise. Bernan was bound by his promise, but no property was bound by it; no trust in plaintiff's favor can be spelled out. * An action on the contract for damages, or to make the executors trustees for performance stands on different ground. ** The Appellate Division properly passed to the consideration of the question whether the judgment could stand upon the promise made to the wife, |