Law’s claim (claim 156) is another of the seventeen appeals from the decree of October 29,1909. See Attorney General v. American Legion of Honor (Hall’s Claim), ante, 158.
In this case the member died on June 9,1902, and on September 22,1902, the beneficiaries were paid $2,000 and surrendered the certificate for cancellation.
The local collector made an affidavit that after the adoption of by-law 55 the member paid him “ an assessment, or perhaps more than one,” on the old basis, and that he sent it or them to the defendant at Boston. That it or they were refused, but the member “ continued to tender me full payment on every assessment,” and on his remittance blanks to the Supreme Secretary “ I made a note of this tender.”
No evidence to control the facts so testified to was introduced. We think that this was a sufficient protest to preserve the rights of the member and that he is now entitled to share in the emergency fund for the difference between what was paid the beneficiaries and what is now due (see Dunlavy’s Claim, ante, 168, and cases there cited), unless this claim has been released by the surrender of the certificate for cancellation.
It is laid down in Byles on Bills, (13th ed.) 199, that: “ It is a general rule of law, that a simple contract may before breach, be waived or discharged, without a deed and without consideration; but after breach there can be no discharge, except by deed, or upon sufficient consideration.” This was stated in *185Dobson v. Espie, 2 H. & N. 79, 83, to be an accurate statement of the law. To that effect see Foster v. Dawber, 6 Exch. 839; Leake on Contracts, 654; Addison on Contracts, (10th ed.) 160.
It is true that the surrender of a negotiable instrument operates as a release. Slade v. Mutrie, 156 Mass. 19. Larkin v. Hardenbrook, 90 N. Y. 333. Ellsworth v. Fogg, 35 Vt. 355. Draper v. Hitt, 43 Vt. 439. Vanderbeck v. Vanderbeck, 3 Stew. 265. Young v. Power, 41 Miss. 197. Stewart v. Hidden, 13 Minn. 43. See also Simons v. American Legion of Honor, 1781ST. Y. 263, 268. But that rule depends upon the law merchant. Foster v. Dawber, 6 Exch. 839. Cook v. Lister, 13 C. B. (N. S.) 543, 592. Dobson v. Espie, 2 H. & N. 79, 83. Byles on Bills, (13th ed.) 199, 200. Leake on Contracts, 565, 654. Addison on Contracts, (10th ed.) 160.
We are of opinion that the rule applied in Slade v. Mutrie, 156 Mass. 19, does not apply to common law contracts.
The sum to which these beneficiaries are now entitled is to be found as follows: From $5,000 with interest to August 12, 1904, there is to be deducted (1) the amount of the difference between the assessments due on the $5,000 basis (without interest where tender was made) and the assessments paid with interest from the several dates on which they were paid to August 12, 1904; and (2) the sum already paid to the beneficiaries.
Decree accordingly.
In Mandeville’s Claim (claim 132), the member died on March 10, 1901, after paying without protest six assessments of the reduced amount for a period of five months. On December 26, 1901, the beneficiary accepted $1,900, stating at the time that it was taken as a payment on account and that she reserved all her rights. It is true that this was said to the “ local officer,” but it was sufficiently brought home to the defendant corporation by the changes made by the beneficiary in the receipt (which it was the duty of the “ local officer” to procure) sent by the .“local officer” to the defendant.
We have held in Dunlawfs Claim, ante, 168, that unless there is evidence to the contrary each member must be taken to have known of the adoption of by-law 55. In the case at bar there *186was evidence to the contrary: “The local collector says, ‘No notice was ever given to members of the proposed or attempted reduction in the amount of $5,000 certificates by Binghamton Council.’ ” In addition the member at the date of his death was an old man of eighty-two years of age and feeble. Apparently the only business he transacted was with his son. There was also evidence that there previously had been changes in the amount of assessments made by a change in the rates through an amendment of the by-laws.
3. A. Wyman, receiver, pro se. 8. 0. Bennett, (L. C. McBride of Texas with him,) for the claimant Law. S. O. Bennett, for the claimant Mandeville. J. J. Higgins A. L. Coodwin, for the members in good standing.Under these circumstances we are not satisfied that the member knew of the adoption of by-law 55, and the beneficiary is now entitled to the relief stated in Law’s Claim.
. Decree accordingly.