Watson v. Jacobs

The opinion of the court was delivered by

The only question in the present case is whether the liability comes within the statute of frauds. And *171this depends npon whether the primary contractor was released from his liability at the time the defendant became liable. This depends to a great extent upon the construction of the report The general statement of facts indicates very clearly that the plaintiff looked exclusively to the defendant. He did not fully surrender his control over the coat until' the defendant consented to assume the debt. He then suffered the first contractor to depart out of the country, and the auditor says “ he was thereby discharged from the debt.” This, we think, can import nothing else but that the defendant was sole debtor. If this case stood against Solo-mons, upon this state of facts, it would certainly be impossible to give judgment against him. And if the primary debtor is released and the secondary liability is the sole debt, all the cases agree that it does not come within the statute of frauds; Birkmyr v. Darnell, 1 Salk. 27; 1 Smith’s L. C. 134 and notes; Anderson v. Davis, 9 Vt. 136.

Something is said in argument in regard to the defendant’s undertaking being upon sufficient consideration; but in the view we take of the case there can be no question of the consideration; and, as it became the sole^debt of the defendant, we see no objection to the recovery in this form of action.

It is obvious to us that the county court gave the same construction to the report which we have done, and that construction of the court to whom the report is made is one which ordinarily this court would feel bound to adopt.

Judgment affirmed.