PUCKETT v. BATES, 4 Ala. 390

GOLDTHWAITE, J. The cases upon the clause of the statute of frauds, which relate to promises to answer for the debt, default or miscarriage of another, are said to relate either to the nature of the undertaking or to the nature of the con~ sideration on which the undertaking is founded. The principal distinction, with respect to the undertaking, recognized by the Court, is between one that is original and one that is collateral.

The law is certainly well established that if the person for whose debt, default or miscarriage the undertaking is made, be liable at all so that the whole responsibility does not rest upon the second promissor, the second promise is collateral, and is void by the statute if not reduced to writing. Many of the cases to establish this doctrine are collected in the note to Leonard v.

Vredenbourg, [8 John. 23.] On the other hand, if no other person is liable for the same debt, &c. for which the promise is made, although another may be liable for a distinct debt, which is the measure of that in question, then the undertaking is an original one, and is not within the statute. The cases which exemplify this distinction are also collected in the same note. These seem to be cardinal rules in the exposition of the statute of frauds, and are sufficient to enable us to decide the present case.

It appears that the contract was originally made between Kelly arid Bates, and that the work was performed by the latter, in conformity with this contract. After the work was commenced, and whilst it was progressing, but before its completion, Kelly left the State, and Puckett then promised he would pay if Bates would proceed with the work.— It is certain that Bates has his action against Kelly under this state of proof, and therefore, within the first rule as set out, the promise of Puckett must be considered as' collateral.

It is also certain that Kelly is liable for the same debt as that now sought to be enforced under the verbal promise*, and the payment by Puckett would be a discharge of all claim by Bates against Kelly.

If the evidence in the Court below had been suchas to show that Bates repudiated his contract with ’ Kelly, after the latter had abandoned the State, if such indeed is the fact, and had refused to proceed farther with the work, then he would have been responsible to Kelly for a breach of the contract; and if after such repudiation, Puckett procured him to proceed with and finish the work, we are not prepared to say that this would not be an original undertaking on his part; or that he would not be liable for any verbal promise connected with it.

In such a case it is probable there would be no liability retained against Kelly, and therefore there could be no pretence that the promise by Puckett would be collateral to any other. Our conclusion is that the judgment must be reversed and the cause remanded.