Aldrich v. Jewell

12 Vt. 125

Opinion

The opinion of the court was delivered by

Bennett, J.

— It is said, in argument, that this report should have been set aside by the court below, on the ground that the auditor has not reported the facts found by him, but simply the evidence adduced on trial. We think this objection is not warranted by the report itself.

The auditor finds, “ that the plaintiff observed to the defendant, that he did not know Douglas, but that he would work for him, if the defendant would pay him if Douglas did not; to which the defendant answered, that he would pay the plaintiff if Douglas did not.” This is not reporting the evidence but the precise language in which the undertaking of the defendant was couched, and though this was not necessary, still it is not legally objectionable.

There can be no question but what the undertaking of this defendant is within the statute of frauds. . It is clearly settled that the statute applies to collateral engagements, that is, to cases where there exists a debt, or legal liability on the part of a third person.

If the undertaker comes in aid, only, to procure a credit to be given to a third person, in such case there is a remedy against both, and both are liable according to their distinct engagements, and the undertaking of the one is but collateral to that of the other.

In the case under consideration, the undertaking of the defendant is in express terms in aid of the credit of Douglass, and is, therefore, collateral to his, and within the statute. The judgment of the county court is affirmed.