#### *Noyes’ Ex’x v. Humphreys.

July Term, 1854,

Lewisburg.

Collateral Promises—Case at Bar.—1ST rents property to T, who undertakes to have certain improvements put up thereon ; and he contracts with H to execute the work. H proceeds and does a part of the work, and receives some payments from T; but finding that T is embarrassed, he stops the work and declares that he will proceed no further with it. N then tells IT to go on and finish the work, an d he will pay him. II then goes on and does the work ; and after it is done settles with T, and takes his bond for the balance due to him. T being unable to pay him, H sues N for the whole balance due him for the work. Ilisi/n :

1. Same—Must Be in Writing.*—That T not having been released from his liability to H, th e promise of N is a collateral promise, and not having been in writing, is void by the statute of frauds.

2. Contract—Promise Entire but Partially Collateral —Effect.†—That the promise alleged in the declaration being an entire promise to pay as well for that done before, as for that done after the promise, even if the promise would have been valid as to the work to be done, it was collateral as to that which had been executed, and being an entire promise, it is void as to the whole.

*336This was an action of assumpsit in the Circuit court of Kanawha county, brought by John R. Humphreys against Bradford. Noyes, and upon his death revived against his executrix. On the trial it appeared by a written agreement, that Noyes had leased certain salt property to James M. Thompson for ten years, reserving rent to a large amount; and that Thompson undertook to make very considerable- improvements upon the property ; to aid him in doing which, Noyes was to advance to him the sum of two thousand dollars. Several witnesses testified that Thompson employed the plaintiff to execute a part of the work which he was bound by his agreement with Noyes to have done ; but he being in embarrassed circumstances, the plaintiff, after he had executed a part of *the work, apprehending that Thompson would not pay him, stopped his work, and refused to proceed with it under his contract with Thompson ; alleging as a reason for his quitting the work, that he had ascértained that Thompson was in embarrassed circumstances, and unable to pay him; and that he could not afford to lose so much. In this state of things Noyes went up to the place, and said to the plaintiff, “The work is now commenced ; it must go on. Go on and .finish it: I will pay you for itor, “I will see it paid.” The plaintiff then resumed his work and completed it, Noyes attending to its execution and giving directions about it all the time it was in progress, which was between four and six months.

A witness also testified, that whilst the plaintiff was at work, Thompson advanced to him from time to time four hundred and thirty-six dollars, the largest portion of which was furnished by Noyes ; and when the work was completed, the plaintiff gave to Thompson his account, which Thompson entered in his book in the presence of the plaintiff, and deducting the amount he had advanced, ascertained the balance due to the plaintiff to be four hundred and fifty-four dollars and seventy-eight cents. For this balance Thompson gave the plaintiff his bond at nine months. This bond was drawn to be executed by two parties, but it was only executed by Thompson. This witness also testified that Noyes had advanced to Thompson upwards of four thousand dollars towards the completion of the improvements on the property.

It appeared further from the evidence, that the plaintiff had taken the benefit of the act for the relief of insolvent debtors, and had surrendered in his schedule the bond of Thompson ; but had not named in his schedule any claim which he had upon Noyes. It also appeared that the debt upon which he had taken the benefit of the said act, had been paid off before this suit was instituted.

*The bill of particulars filed in this cause was a copy of the account given to Thompson, as before stated.

After all the evidence had been introduced, the defendant moved the court to give to the jury five instructions, which were given, with certain additions thereto. They are as follows:

1. If the jury are satisfied, from the evidence, that the plaintiff, after the promises supposed to have been made by the intestate Noyes, and laid in the declaration in this suit, took the insolvent debtors’ oath as aforesaid, and in his schedule surrendered the bond of James M. Thompson for four hundred and fifty-four dollars and seventy-eight cents, the balance due from him on the work and labor sued for in this action, and did not set out in his schedule any claim of any kind whatever against the intestate Noyes, from such omission under the insolvent oath the jury may presume an admission on the part of the plaintiff, that at the time he took the oath the said Noyes was in nowise liable to him for money or property under any antecedent contract or engagement.

2. If the jury are satisfied from the evidence, that the work and labor sued for in this action was work which James M. Thompson was bound to perform, and for the doing of which he was liable by his contract with the plaintiff to pay him, no promise by the intestate Noyes, to pay for the same, or see it paid, is valid and binding on him, unless such promise is in writing, and signed by him.

3. If the jury believe that the plaintiff, by his parol contract with J. M. Thompson, had a right to recover from him for the work and labor sued for in this action, and that the said work and labor was such as the said Thompson was bound to execute, in such event the promise of the said intestate is collateral, and should be in writing to bind him.

4. If the jury shall be satisfied from the evidence, that James M. Thompson, by parol contract, employed *the said plaintiff to execute for him the work sued for in this action, and that such contract was not rescinded ; and when the plaintiff completed the' work, the parties, Thompson and Humphreys, settled, and the said Thompson executed his bond or writing under seal, for the balance due on the work, to said Humphreys, that such bond extinguished the simple contract in law between them, as well as all parol promises by the intestate to guarantee the payment of such simple contract liability.

5. If the jury are satisfied that the contract between Thompson and plaintiff was not rescinded by agreement between them, the mere fact that Bradford Noyes may have *337agreed by parol to pay Humphreys, or see him paid, does not extinguish the contract with Thompson or his liability to pay the plaintiff:.

The first instruction was given, with the following addition, viz: ***

That is, if the evidence and all the circumstances in the cause, taken and considered together, shall, in their opinion, warrant such presumption. The evidence in reference to the schedule, and the omission on the part of the plaintiff to mention any claim therein against Noyes, as well as all the evidence in the cause, is submitted to the jury, and it is for them to decide upon it, both as to its weight and effect, and to draw such conclusion from it as in their judgment it shall be entitled to.

The second instruction was given to the jury, with the following explanation :

But if the jury are satisfied from the evidence that the work sued for was not done under the contract between the plaintiff and James M. Thompson, but that the work was performed under an agreement between the plaintiff and Noyes and a promise on the part of Noyes to pay for it, and that such promise, was a direct promise, then and in that event such promise would be valid and binding without being put in writing. *The third instruction was given, with this explanation :

But that if the jury were satisfied from the evidence that the work was not done under the contract between the plaintiff and Thompson, and that the plaintiff had abandoned under that contract, and that it was done under an original agreement between the plaintiff and Noyes, and that the promise to pay for it was a direct one, then such promise would be binding without writing.

The fourth instruction was given, with the following additions :

But if the jury were satisfied from the evidence that the work was not done by the plaintiff under the parol contract between him and Thompson, but under an original contract between him and Noyes, and that Noyes made a direct promise to pay him for the same, and that the plaintiff did do the work on the faith of that promise alone, then and in that event a settlement between Thompson and the plaintiff after the work was completed by the plaintiff, and the execution of his bond or writing under seal by Thompson to the plaintiff for the balance due on the work would not extinguish the simple contract so made between Noyes and the plaintiff, notwithstanding there may have been no rescission of the parol agreement between the plaintiff and Thompson, unless the plaintiff received said bond or writing tinder seal from Thompson as his bond or writing under seal for said work.

Fifil instruction given, with this addition: But that although there was no rescission of the contract between plaintiff and Thompson, if the jury was satisfied from evidence, the work sued for was done for Noyes under an original contract between him and plaintiff, and that Noyes made a direct promise to pay for the same, that the work was done on Noyes’ credit alone, and on the fact of his promise to pay, then such promise is binding on him.

*To the giving of these additions to the instructions the defendant excepted.

There was a verdict for the plaintiff for four hundred and fifty dollars, with interest thereon from the 18th of December 1844 until paid : Whereupon the defendant moved the court for a new trial, which was overruled ; and the defendant again excepted. This exception, instead of stating the facts proved, referred to the evidence as stated in the first exception. There was then a judgment for the plaintiff; and the defendant applied to this court for a supersedeas, which was awarded.

McComas, for the appellant, insisted:

1. That the instructions asked propounded the law correctly ; and that the additions thereto given by the court were calculated to mislead the jury. That the additions to the first instruction asked were inexplicable; and was further objectionable, because the court did not instruct the jury upon the law, but left the whole case to them. That the additions to the second and third instructions assumed a state of facts not authorized by the evidence ; and moreover used the phrase “direct promise,” without any explanation of its meaning ; and thus leaving the jury to conclude that an express promise was an original promise.

.2. That the undertaking of Noyes was a collateral and not an original undertaking, and not being in writing, was void by the statute of frauds. And he cited Cutler v. Hinton, 6 Rand. S09 ; and insisted that this case settled the principle that where there is an undertaking for another and both are bound, then it is not an original but a collateral undertaking, and must be in writing. He stated that other judges had classified the cases. First. Where the promise is made before the consideration for it is obtained. Second. Where the promise is made after the consideration is ^'obtained. Third. Where there is a new consideration. The first two classes were held to be within the statute ; and the third had been held not to be within it. Farley v. Cleveland, 4 Cow. R. 432. But this case showed that upon the last point there was a great conflict of authorities ; and in fact it was not sustained by them. But however that might be, the case here did not come within it, as there was in fact no new consideration for the promise of Noyes. He made no new contract with Humphreys, but his promise was to pay for the work done under the contract made by Humphreys and Thompson, for which Thompson continued to be bound ; and therefore, according to Cutler v. Hinton, the promise was collateral.

Fitzhugh and Doddridge, for the appellee, insisted:

1. That the instructions asked for by the defendant below, were based upon a partial view of the facts, and therefore calculated to *338mislead the jury ; and that the additions to them given by the court were 'only intended to give the law as applicable to all the facts proved in the cause. And they insisted that if the instructions were substantially correct, this court would not reverse the judgment for any mere verbal inaccuracies. Spencer v. Pilcher, 8 Leigh 565.

2. That the case did not come within the principles applicable to collateral promises. That there was in fact a new contract, and that upon a new consideration. They referred to Leonard v. Vredenburgh, 8 John. R. 23 ; in which Kent states the classes into which the cases are resolved. Of these the third is where there is a new consideration of benefit to the promiser or harm to the other party. Meech v. Smith, 7 Wend. R. 315 ; Parley v. Cleveland, 4 Cow. R. 432. In this last case the division is recognized, and numerous cases are cited to illustrate each class : And in the two last cited cases the original party was still *bound, They referred also to King v. Despard, 5 Wend. R. 277.

They insisted further that Cutler v. Hinton was not at variance with these authorities. That case came clearly within the first class, and was within the words of the statute : That there, there was no new consideration. And they referred to Ware v. Stephenson, 10 Leigh 155, as not extending the principle as far as it was stated in Cutler v. Hinton. They insisted further that the question as to whom the credit had been given was one for the jury. Darnell v. Tratt, 12 Eng. C. L. R. 36.

*

Collateral Promises—Must Be in Writing.—In Radcliff v. Poundstone, 23 W. Va. 734, it was held that a collateral promise not being in writing was void by the statute of fraud, the court citing the principal case, Waggoner v. Gray, 2 H. & M. 603, Cutler v. Hinton, 6 Rand. 509, and Ware v. Stephenson, 10 Leigh 155, to support the proposition.

Contract—To Pay Debt of Another—New and Original Consideration.—In Riffe v. Gerow, 29 W. Va. 468, 2 S. E. Rep. 107, it is said: “In Prime v. Koehler, 77 N. Y. 91, it was held that ‘where the purpose of the promisor to pay the debt of a third person is to secure a benefit to the promisor, by relieving his property from a lien, or securing or confirming his possession, the promise is original, and not collateral, and so is not within the statute of frauds.’ Ahdkews, J., in delivering the opinion of the court, said: ‘The circumstances bring the case directly within the third class of cases enumerated in Leonard v. Vredenburgh, 8 Johns. 28, viz., where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm running between the newly-contracting parties. In this class of cases the subsisting liability of the original debtor is no objection to the recovery; and, where the purpose of the promise is to secure a benefit to the promisor by relieving his property from a lien, or securing and confirming his possession, the promise is original, and not collateral, although a third person may be personally liable for the debt, and the promise may be in form a promise to pay such debt, and although the performance of the promise may result in discharging the debt.’ See, also, Waggoner v. Gray's Adm’r, 2 H. & M. 603; Cutler v. Hinton, 6 Rand. 509; Ware v. Stephenson, 10 Leigh 155 ; *Noyes*v. *Humphreys, 11 Gratt. 636;*Radcliff v. Poundstone, 23 W. Va. 724.”

For further authority in accord with the proposition that, where the promise to pay the debt of another arises out of some new and original consideration, it is not within the statute of frauds, see Hopkins v. Richardson, 9 Gratt. 494; Wright v. Smith, 81 Va. 777, 782 ; Skinker v. Armstrong, 86 Va. 1015, 11 S. E. Rep. 977 ; 2 Va. Law Reg. 465.

†

Same—Entire Promise—Partially Collateral—Effect. —Where a verbal promise is entire and relates in part to matter which render it necessary, under the statute of frauds, that the promise should be in *336writing (for example, where the promise, as in the principal case, is partially collateral), the whole promise is void. For, since the promise is entire and part of it is void, the whole is thus rendered defective. See the principal case cited in support of this proposition in Com. v. McCullough, 90 Va. 615, 19 S. E. Rep. 114; Engleby v. Harvey, 93 Va. 445, 25 S. E. Rep. 225.

Bill of Exceptions—Certification of Evidence—Old Rule in Virginia.—See principal case cited in Payne v. Grant, 81 Va. 169. See also, Gimmi v. Cullen, 20 Gratt. 439, and foot-note; Read’s Case, 22 Gratt. 924, and footnote; monographic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.

ALLEN, P.

The cases upon undertakings coming within the scope of that branch of the statute of frauds prescribing the mode in which the special promise to answer for the debt, default or misdoings of another person should be made, have been numerous, and many subtle, if not shadowy, distinctions have peen taken. Every collateral promise to answer for the debt, default or misdoings of another person, is within the statute, and void if not in writing ; but original undertakings need not be in writing, not being within the statute. The difficulty is in determining under which head the undertaking in any particular case is to be classed. Where the party undertaken for is under no original liability, the promise is an original promise, and binding though notin writing; the promiser is the party immediately liable, and the undertaking is to pay or answer for his own debt or default, and not for another’s. But it has been settled in England that if the party undertaken for is liable, the promise must be in writing. This is the principle decided in the leading case of Birkmyr v. Darnell, 1 Salk. R. 27. There, in consideration that the plaintiff would deliver his horse to A, the defendant promised that A should return him safe. This case was held to be a *collateral undertaking for another ; ior the undertaker comes in aid to procure credit for another ; and there is a remedy against both ; for the plaintiff could maintain detinue upon the bailment against the original hirer, as well as assumpsit on the promise against the defendant. In the note to Porth v. Stanton, 1 Wms. Saund. 211, it is said, “that it is clear the mere existence of the debt, default or miscarriage, is not sufficient to support the promise ; there must be some consideration for it, and therefore the promise must in all cases be founded on a new consideration. The question indeed is, What is the promise? Whetherit be a promise to answer for the debt &c. of another, for which that- other remains liable, not what the consideration for that promise is ; for it is plain that the nature of the consideration cannot affect the terms of the promise itself, unless it be an extinguishment of the liability of the other party.”

The cases of Goodman v. Chase, 1 Barn. & Ald. 297, and of Williams v. Leper, 3 Burr. R. 1886, illustrate the last proposition. In the first case, the defendant, in consideration that the plaintiff would discharge his debtor arrested under a ca. sa. promised to pay the debt. It was held unnecessary that the promise should be in writing, for the debtor’s liability ended on his discharge, so that the defendant was never liable for his debt; and in Williams v. Leper, the defendant having got possession of goods .which were subject to distress for rent in arrear, promised the landlord he would pay him the rent, if he would desist from distraining. The judge considered the goods as the debtor ; and therefore the promise was not to pay the debt of another, but the debt for which the goods were liable, of which goods the defendant was owner. Nor is it material at what time the promise to pay for the debt or default of another is made, if the debt is a continuing debt for which the debtor remains liable. *In Matson v. Wharan, 2 T. R. 80, the court held that there was no distinction between a promise to pay for goods furnished for the use of another, made before they were delivered and after, if the person for whose use they were furnished is liable at all. Nor is there any distinction drawn by the cases referred to, as decided in the courts of England, whether the parol promise to pay the debt of another is supported by a consideration moving to the debtor or the promisee provided the original debt continues to subsist as a cause of action against the original debtor: Though in New York, in the cases of Farley v. Cleveland, 4 Cow. R. 432, King v. Despard, 5 Wend. R. 277, a different rule was adopted; those cases deciding that where there is a new and original consideration of benefit to the defendant or harm to the plaintiff moving to the party making the promise, the subsisting liability of the original debtor is no objection to the recovery. In Virginia, the cases of Waggoner v. Gray’s adm’r, 2 Hen. 6 Munf. 603; Cutler v. Hinton, 6 Rand. 509, and Ware v. Stephenson, 10 Leigh 155, have recognized and adopted the rule as deduced from the English cases. In the first case, Judge Roane lays down the rule to be, “that where the person on whose behalf the promise was made, is -not discharged, but the person promising agrees to seethe debt paid, *339so that the promisee has a double remedy, the promise is collateral.”

In the case of Cutler v. Hinton, the defendant made the promise before the goods were delivered, saying he would pay for any goods sold to his son in law, or to any merchant of whom his son in law might purchase, that he would pay for him a certain sum. The promise was held to be collateral, and being verbal, void under the statute. Judge Carr, after a review of some of the leading English cases, concludes with the remark, “That these cases, out of a vast multitude, serve to exemplify the gen eral principle, that where *the promisee has a double remedy, both against the promiser and him in whose behalf the promise is made, such promise is collateral, and mustibe in writing.”

In the last case of Ware v. Stephenson, the consideration for the promise was for the benefit of the promiser; the articles were delivered to a workman engaged in building a house for the defendant; and the question in the case upon which the judges differed, was, Whether the workman was liable and bound to pay for the articles delivered to him ? Judge Brooke stated, that it was a well settled principle, that where the party to whom goods are delivered on the promise of a third person to pay for them, is bound to pay for them, the undertaking is collateral, and if not in writing within the statute ; but he thought from the facts that there was no original liability on the workman, and that he was not bound to pay for the articles delivered. Judge Stanard, with whom the other judges concurred, thought that the workman was responsible for the articles delivered, and said, “That whatever doubts may at one time have existed respecting undertakings within the scope of the statute, it has long since been definitively settled, that when an undertaking is for a consideration to be received by, or articles to be supplied to, a third person, if the transaction be such that the third person is responsible to the person who supplies the articles, or from whom the consideration proceeds, the undertaking is collateral, and if oral not binding.

To apply these principles to the present case: It appears from the evidence certified as given upon the motion for instructions, and upon overruling the motion for a new trial, that the testator of the plaintiff in error, by a contract dated the 1st of January 1844, leased a salt property in Kanawha county to James M. Thompson, who bound himself to build a salt furnace, *fixtures, &c., at his own expense. The testator of the plaintiff in error by the contract agreed to furnish Thompson the sum of two thousand dollars towards said improvements, and in part payment of their erection. In pursuance of the said contract, Thompson employed the defendant in error to build some cisterns, and to do the work for him under the lease. After doing a part of the work, he stopped it, announcing his determination to leave, declaring he was done with the job, and would not proceed with the work upon the faith or confidence of Thompson being paymaster for it. And thereupon, the said testator said to him the work was commenced; it must go on ; and told him to go on and finish it, that he would pay him for it, or see it paid. The defendant in error thereupon resumed work and continued, until it was finished.

The defendant in error further gave in evidence the declaration of said testator, shortly after the conversation aforesaid, that he would have to pay for the work done or doing by the defendant in error, and that he had already advanced Thompson two thousand dollars for improvements which the latter by his lease was bound to make.

It was further proved by the plaintiff in error, that her testator had advanced to Thompson more than two thousand dollars ; that Thompson could not make said improvements without such advances, and that he was unable to pay the defendant in error for his work according to the contract, either at the time of making the same or at any time since. That when the work was finished, the defendant in error rendered his account, being the same stated by him in the bill of particulars filed in the suit, which Thompson entered in his book in the presence of the defendant in error; the several payments made by Thompson from time to time during the progress of the work were deducted, a balance ascertained, for which Thompson executed *his bond at nine months. The bond is exhibited, and has two seal® to it, but is signed by Thompson alone; and was drawn to be signed by the testator; but there is no proof that he ever agreed to sign it. The insolvent papers of the defendant in error, including the schedule, were also given in evidence, from which it appears that on taking the oath of insolvency on the 29th of July 1847, he surrendered said note on Thompson, but did not surrender any claim on the testator. This suit was brought in the year 1848; and it was proved that the debt upon which the defendant in error took the oath of insolvency, was paid before he instituted this suit.

After the evidence was closed, the plaintiff in error moved for five instructions, all of which were given, with certain explanations and modifications, to which she objected; but her objections being overruled, she excepted; and a verdict being found against her for the balance of the claim, she moved for a new trial, and her motion being overruled, she again excepted.

I think there was no error in the court’s explanation to the first instruction moved for. By that instruction, the court was asked to tell the jury that from the surrender of Thompson’s bond in the schedule and the omission to set out any claim against the plaintiff’s testator, the jury might presume an admission on the part of the defendant in error, that at the time he took the oath the testator of the plaintiff in error was in nowise liable to him for money or property, under any antecedent engagement. The effect of the instruction, if given in the terms asked, might have been to have induced the jury to believe that they were *340bound, from the facts stated in the instruction, to presume such admission, notwithstanding other circumstances in evidence might repel the presumption. The court informed the jury, that in forming their conclusion as to this presumed admission-, they ^should look not merely to the omission to surrender this claim in the schedule, but to all the facts in evidence. In this, I think, there was no error.

The second, third and fifil instructions were intended to present, and as I think, do present the real question involved in the case ; and that is, whether, under the facts, the evidence tended to prove the undertaking was original or collateral? The second and third are the same in substance ; and asked the court to instruct the jury, that if they were satisfied from the evidence, that the work and labor sued for was such as Thompson was bound to execute, and for which he was liable under his contract with the defendant in error to pay him, in such event the promise was collateral, and should be in writing to bind said testator. These instructions were not irrelevant. The evidence showed a contract between Thompson and the defendant in error; and that part of the work was performed under such contract before the promise by the testator. And the cases referred to establish, that whether the contract is collateral or original, depends on the liability of the party undertaken for. The court should have given the instructions as asked for, and without the qualifications annexed to them. The modifications were not warranted by the evidence, and were calculated to mislead the jury. There was no testimony proving or tending to prove that a portion of the work was not performed under the contract with Thompson before the promise of the testator. The promise declared upon was an entire promise covering the whole claim for the work performed by the defendant in error; and the court was not justified in assuming that there was any proof that the work sued for was not done under the original contract between Thompson and the defendant in error. The court was asked to tell the jury that if Thompson continued liable to the defendant in error *upon the first undertaking, the promise of the testator was not binding unless in writing. The qualification of the court evades this proposition altogether, by informing the jury that if they were satisfied the work was not done under the contract between Thompson and the defendant in error, but under the agreement between the testator and said defendant in error, and the promise of the former to pay for it, and that such promise was a direct one, it would be binding, although not in writing. Although the work may have been done under the promise of the testator, and though the consideration of such promise was sufficient, that does not make it an original promise, if in fact the original contract was with a third person, who continued responsible to the defendant in error, notwithstanding the promise of the testator. By the qualification of the court, the jury were instructed that I the defendant in error was entitled to recover from the promiser, notwithstanding the continued liability of the original contracting party, because the work was performed in consequence of the promise to be answerable for it. The terms used by the court were calculated to mislead the jury: It speaks of a direct promise, leaving it uncertain whether by that expression was meant an express promise by the testator to the defendant in error, or an original or collateral promise. An express promise to pay would probably be deemed by the jury a direct promise ; and if it was intended to be equivalent to an original promise, that was a question of law arising upon the facts upon which the instruction was asked; whereas the qualification refers-it to the jury to determine for themselves, whether under the facts it was a direct or original promise, or one merely collateral.

The fifil instruction asked the court to instruct the jury, that if the contract between 'Thompson and the defendant in error was not rescinded by agreement *between them, the mere fact that the testator of the plaintiff in error may have orally agreed to pay or to see him paid, did not extinguish the contract with Thompson, or his liability to pay the defendant in error. This was given with the qualification, that although there was no rescission between Thompson and the defendent in error, yet if the work was done for the said testator, under an original contract between him and the defendant in error, that the said testator made a direct promise to pay for the same, and the work was done on his credit and the fact of his promise to pay, it was binding on him. This qualification has no relevancy to the instruction. The proposition it propounded was, that if there was no agreement between the original parties to rescind their contract, a promise by a third person to pay would not extinguish the liability of the first promiser. To this there could be no objection ; and if the original liability continued, then the promise would be collateral. The qualification informed the jury that although there was no such rescission and extinguishment of liability, yet the promise, if made under the circumstances detathed, would be an original and not collateral promise. I think that in this the court erred.

The bill' of exceptions to the decision of the court overruling a motion for a new trial, refers to and adopts the statement of evidence contained in the second bill of exceptions. That bill of exceptions states the evidence of the witnesses examined on the trial, instead of the facts appearing to the court to have been proved by such evidence; and is, therefore not well taken under the rule of Bennett v. Hardaway, 6 Munf. 125, unless it appears to the appellate court, that after disregarding all the parol evidence of the exceptor, and giving to that of the other party full credit, the decision was wrong: And that, I think, sufficiently appears here.

*The evidence of the defendant in error shows that Thompson, the lessee *341of the property, had bound himself to the landlord to erect a salt furnace and other fixtures necessary to the manufacture of salt, at his own proper cost and charges ; that he made the contract with the defendant in error to do the work for him under the lease ; that the defendant in error, under this contract, had commenced and performed a portion of the work, the value of which does not appear ; and that he then stopped work and refused to proceed with it under his contract with Thompson, alleging, as his reason for quitting the work, that Thompson was embarrassed, and unable to pay him. Thereupon, the testator of the plaintiff in error made the promise on which the suit was brought. The promise was made after the work had been commenced and a part had been executed. There was no distinct promise to pay for the work thereafter to be executed, as contradistinguished from what had been done. The promise was entire and extended to all work the defendant in error had contracted with Thompson to do. There was no new stipulation as to price, or the description of work or the mode of payment. The promise referred to the former contract which remained unchanged, and amounted to no more than an undertaking that if the defendant would go on and perform his contract with Thompson, the promiser would pay him for the work or see him paid. Thompson was no party to this undertaking. His liability to pay for the work was not extinguished or reduced by it. The undertaking, so far from annulling, provided for the fulfillment of his contract, and as his responsibility continued the promise, according to the decisions of this court, was collateral, and not binding unless in writing.

Viewing the evidence in the most favorable light, it could at most be held to establish an original undertaking *for work thereafter to be done. The promise, however, embraced the whole of the work ; that done, as also that to be done. The declaration on the special contract, charges it as one entire undertaking to pay for the whole of the work done under the contract ; and the hill of particulars filed with the declaration, charges the said testator with the whole of it. Under the circumstances, proved by the evidence offered by the defendant in error, Thompson was not released ; no notice of abandonment is proved; and the note for the balance shows he was held liable by the defendant in error for the whole of the work done. The debt had been incurred ; and though there may have been a sufficient consideration of benefit to the landlord, in avoiding the loss of rents and the injury resulting from leaving the work in ati unfinished state, to have supported a promise to pay for this liability of Thompson, the promise would have been collateral, though on a good consideration, and must be in writing to be valid. But where the verbal promise is entire, and part of it relates to a matter which renders it necessary under the statute that the promise should be in writing, the whole promise is void. Being entire and part of it void, the whole is defective. Chit. on Contract 61. In the case of Thomas v. Williams, 21 Eng. C. L. R. 142, the tenant was indebted for a quarter’s rent: the defendant, an auctioneer, was about to sell the tenant’s goods, which were on the demised premises, and the landlord being about to distrain for the quarter’s rent due, the defendant verbally promised to pay not only the rent due but the rent which would become due the ensuing quarter. The court held that the promise was void, and being entire, not even the rent due was recoverable.

Under the case of Williams v. Leper, ubi supra, and cases of that character, where the party had surrendered the goods or discharged the debt, such promise *was held valid though notin writing. But in the case of Thomasv. Williams, EordTenderden, C. J., said, “There is no case in which the promise of payment has gone beyond the amount of the right vested in the party to whom the promise was made, or beyond the assumed value of the fund out of which the payment was to be made.” The right vested in the plaintiff and for which he could have distrained was the rent in arrear, but the promise of payment went beyond that, to the rent which would thereafter become due, and was void on that account as to all. So in Head v. Baldrey, 6 Adol. & Ell. 459, 33 Eng. C. L. R. 109, the promise was void by the statute of frauds for want of a written memorandum as to one of the subject matters, but as to the other no writing was necessary ; but the court held the agreement was indivisible and bad altogether. To the same effect is Mechelen v. Wallace, 7 Adol. & Ell. 49, 34 Eng. C. L. R. 32; Lord Lexington v. Clarke, 2 Ventr. E. 223; Chater v. Beckett, 7 T. R. 201; Loomis v. Newhall, 15 Pick. R. 159. Upon both grounds it seems to me the verdict was not warranted by the evidence ; and that there should have been a new trial.

The other judges concurred in the opinion of ALLEN, J.

Judgment reversed.