Phinehas Stone versus Caleb Symmes Junior, 18 Pick. 467

Putnam J. delivered the opinion of the Court. We are inclined to think, that there wras a sufficient consideration for the defendant’s promise, in the benefit which he received from the agreement of Woodward to continue to labor for him, instead of leaving his employment and going to work for the plaintiff, according to a previous agreement between the plaintiff and Woodward.

The debt due from Woodward to the plaintiff was very small; and it might have been more advantageous to the defendant to pay the debt of Woodward to the plaintiff, and have Woodward continue on his labor for the defendant, than it would have been to have Woodward leave the defendant’s employ under the then existing circumstances. But there must not only be a good consideration for the promise, but, if it be for the debt of another, it must be in writing, or it will come within the statute of frauds, and may be avoided.

If the debt of Woodward to the plaintiff was discharged, then this might be considered as an original undertaking of the defendant, and so would not come within the statute. And that is the true criterion to be observed in the present case. Now we do not think that there is any evidence in the case to show, that the plaintiff did discharge his claim against Woodward. The case finds, that the plaintiff said, that he must have the bill paid or have Woodward’s work. But he got neither one nor the other.

He got only a promise of the defendant to pay the debt which was due from Woodward to the plaintiff, and Woodward continued to work for the defendant. It would, perhaps, have been sufficient, if the plaintiff had then expressly discharged Woodward in consideration of the defendant’s promise, so relying upon it as an original undertaking, and upon the loss of his claim against Woodward, as the consideration for the promise of the defendant; but there is no evidence of such an express discharge ; and no facts are stated from which even an implied discharge of Woodward is to be necessarily inferred.

Woodward’s liability to the plaintiff con-, tinued. At most, the plaintiff agreed to suspend his claim for such time as he pleased, but not to abandon or discharge it at all events. So the debt which the defendant undertook to pay was the debt of Woodward which was due to the plaintiff, and not the defendant’s own debt; and the case, we all think, comes precisely within the true intent and meaning of the statute. The judgment of the Court of Common Pleas is reversed, and the plaintiff is to become nonsuit.