Mr. Justice James,
after stating the case, delivered the opinion of the court:
■The first question that ■ presents itself for the consideration of this court is, whether the memorandum of agreement should have been allowed to be read to the jury. We have nothing to do with the truth of the testimony in regard to this memorandum, or of the statements contained in it. We have only to determine what legal result should follow in case they are true¿ of are believed by the jury to be true. All that we now say, is, that if the testimony in regard to it is believed by the'jury to he true, then there was a parol agreeúient between the plaintiff and defendant, the terms of which afe to he found in this paper. The rule is plain, that where parties agree verbally that the terms of a verbal agreement which they have entered into is to he found as stated in á certain paper, that paper is the proper evidence of the particular matters to which they'have verbally agreed not that the paper is the contract between them, but that it is the hest statement of what it is they have agreed to verbally ; and it should, if the contract he a proper one to be enforced, be submitted and read to the jury as the best evidence of what that contract was. This paper should, therefore, have been allowed to be read to the jury as a part of' the evidence of the parol agreement, provided there was anything to submit to the jury in the shape of a contract. Nor was it proper, with the paper thus assented to as the correct statement of the contract, that the' witnesses should have been allowed to state from their memories what the' contract was, even though in doing so they were allowed to look at the paper to refresh their recollection. For even after looking at the paper, they would be remitted at last to their recollection, while if the testimony is to be believed by the jury, the parties had agreed that the facts and terms of the agreement should be found in this memorandum, and that it was to be resorted to as the evidence of their agreement.
[110]*110It is true that the testimony shows that Hill said he would not sign any contract, giving as his reason that his word was as good as his bond; and it is argued from this that he really did nothing more than give his word of honor; As we have already said, the court has nothing to do with the credibility of the statement. We have only to determine what the legal effect of his statement is, if the jury believe it to be true. Now, it seems to us that when one induces another to forego an advantage, it is unreasonable to suppose that the understanding between them is that that advantage is given upon an assurance that is not to be regarded as a promise, but as a mere offering of his word as a man of honor. It would be a fraud on the other party to induce him to forego an important advantage when he is about to enforce his lien against the land, and to make his money, and leave him with no other promise than that the promisor would behave like an honest man. If that is contended, we think it must be distinctly and intelligibly shown. Coupling this consideration with the fact that the same testimony goes on to say that he (Hill) said the agreement might be reduced to writing, and that afterwards when the paper purporting to be the statement of the agreement was shown to him he assented to it, a case is stated in which there was a promise which might be construed by the court — in case the jury find the fact of a promise — to be an actual agreement, and not a mere pledge of honor. Business is not conducted in that way. Men do not surrender security for a claim on a mere assurance that the other party will conduct himself well, but who at the same time refuses to bind himself.
But there is another question in regard to this memorandum, which it becomes important to consider, and that is, whether the exclusion of this paper, although error, injuriously affected the case of the party complaining, for if it did not, we ought not to grant a new trial on the ground, of its erroneous exclusion. If, for example, such an agreement made by parol was not binding, it would be immaterial that it was excluded. It was argued that it comes within the Statute of Frauds; that it was an undertaking to pay [111]*111the debt of another, and should have been in writing and signed by the party to be charged, or his duly authorized agent. On the other hand, it was claimed that that was an original, direct promise made by Hill to Williamson, upon a consideration between them, and was not in any sense collateral to Murtagh’s debt, although the money which Hill is alleged to have promised to pay, would satisfy and extinguish Murtagh’s debt.
Several grounds were alleged as sufficient to take the case out of the Statute of Frauds. It was said, for example, that inasmuch as the testimony, if believed, shows that the consideration of withholding this sale was good, if performed, and that it was performed, we have a case of an executed consideration, and that it would be a fraud on the part of the promisor to set up the Statute of Frauds, and that to such cases the statute has no application.
It is said, too, that Hill made the promise in consideration of a benefit to himself, and that, therefore, it was necessarily an original promise. We shall deal with only one of these reasons. The law seems to have been most satisfactorily statedby Chief Justice Shaw. In that case a promise was made in the case of Nelson vs. Boynton, 3 Metcalf, 396, when an attachment had been laid on certain property, by another person, that if the attachment was withdrawn, the promisor would pay the debt. Chief Justice Shaw, after stating that there must be in every case, whether the contract were in writing or verbal, a sufficient' consideration, said:
“It is not enough that a sufficient legal consideration for a promise is proved, if the object of the promise is the payment of the debt of another, for his account, and not with a view to any benefit to the promisor. * * * The terms, original and collateral promise, though not used in the statute, are convenient enough to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another’s debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is [112]*112to subserve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time, with the promise of the principal, is not valid, unless manifested by evidence in writing. The latter, if made on good consideration, is unaffected by the statute,, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object, on the part of the promisor.”
Several cases are cited in illustration of this position, and the court then proceeds to say:
“ The rule to be derived from the decisions seems to he this: That cases are .not considered as coming within the statute when the party promising has for his object, a benefit which he did not before enjoy, accruing immediately to himself; hut where the. object of the promise is to obtain the release of the person or property of the debtor, or other forbearance, or benefit to him, it is within the statute.”
To apply this rule to the present case, we find that the testimony which would govern it, if believed, is that Hill had a judgment coming after the lien of the plaintiff, as a lien on the same property.
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Mr. Justice James,
after stating the case, delivered the opinion of the court:
■The first question that ■ presents itself for the consideration of this court is, whether the memorandum of agreement should have been allowed to be read to the jury. We have nothing to do with the truth of the testimony in regard to this memorandum, or of the statements contained in it. We have only to determine what legal result should follow in case they are true¿ of are believed by the jury to be true. All that we now say, is, that if the testimony in regard to it is believed by the'jury to he true, then there was a parol agreeúient between the plaintiff and defendant, the terms of which afe to he found in this paper. The rule is plain, that where parties agree verbally that the terms of a verbal agreement which they have entered into is to he found as stated in á certain paper, that paper is the proper evidence of the particular matters to which they'have verbally agreed not that the paper is the contract between them, but that it is the hest statement of what it is they have agreed to verbally ; and it should, if the contract he a proper one to be enforced, be submitted and read to the jury as the best evidence of what that contract was. This paper should, therefore, have been allowed to be read to the jury as a part of' the evidence of the parol agreement, provided there was anything to submit to the jury in the shape of a contract. Nor was it proper, with the paper thus assented to as the correct statement of the contract, that the' witnesses should have been allowed to state from their memories what the' contract was, even though in doing so they were allowed to look at the paper to refresh their recollection. For even after looking at the paper, they would be remitted at last to their recollection, while if the testimony is to be believed by the jury, the parties had agreed that the facts and terms of the agreement should be found in this memorandum, and that it was to be resorted to as the evidence of their agreement.
[110]*110It is true that the testimony shows that Hill said he would not sign any contract, giving as his reason that his word was as good as his bond; and it is argued from this that he really did nothing more than give his word of honor; As we have already said, the court has nothing to do with the credibility of the statement. We have only to determine what the legal effect of his statement is, if the jury believe it to be true. Now, it seems to us that when one induces another to forego an advantage, it is unreasonable to suppose that the understanding between them is that that advantage is given upon an assurance that is not to be regarded as a promise, but as a mere offering of his word as a man of honor. It would be a fraud on the other party to induce him to forego an important advantage when he is about to enforce his lien against the land, and to make his money, and leave him with no other promise than that the promisor would behave like an honest man. If that is contended, we think it must be distinctly and intelligibly shown. Coupling this consideration with the fact that the same testimony goes on to say that he (Hill) said the agreement might be reduced to writing, and that afterwards when the paper purporting to be the statement of the agreement was shown to him he assented to it, a case is stated in which there was a promise which might be construed by the court — in case the jury find the fact of a promise — to be an actual agreement, and not a mere pledge of honor. Business is not conducted in that way. Men do not surrender security for a claim on a mere assurance that the other party will conduct himself well, but who at the same time refuses to bind himself.
But there is another question in regard to this memorandum, which it becomes important to consider, and that is, whether the exclusion of this paper, although error, injuriously affected the case of the party complaining, for if it did not, we ought not to grant a new trial on the ground, of its erroneous exclusion. If, for example, such an agreement made by parol was not binding, it would be immaterial that it was excluded. It was argued that it comes within the Statute of Frauds; that it was an undertaking to pay [111]*111the debt of another, and should have been in writing and signed by the party to be charged, or his duly authorized agent. On the other hand, it was claimed that that was an original, direct promise made by Hill to Williamson, upon a consideration between them, and was not in any sense collateral to Murtagh’s debt, although the money which Hill is alleged to have promised to pay, would satisfy and extinguish Murtagh’s debt.
Several grounds were alleged as sufficient to take the case out of the Statute of Frauds. It was said, for example, that inasmuch as the testimony, if believed, shows that the consideration of withholding this sale was good, if performed, and that it was performed, we have a case of an executed consideration, and that it would be a fraud on the part of the promisor to set up the Statute of Frauds, and that to such cases the statute has no application.
It is said, too, that Hill made the promise in consideration of a benefit to himself, and that, therefore, it was necessarily an original promise. We shall deal with only one of these reasons. The law seems to have been most satisfactorily statedby Chief Justice Shaw. In that case a promise was made in the case of Nelson vs. Boynton, 3 Metcalf, 396, when an attachment had been laid on certain property, by another person, that if the attachment was withdrawn, the promisor would pay the debt. Chief Justice Shaw, after stating that there must be in every case, whether the contract were in writing or verbal, a sufficient' consideration, said:
“It is not enough that a sufficient legal consideration for a promise is proved, if the object of the promise is the payment of the debt of another, for his account, and not with a view to any benefit to the promisor. * * * The terms, original and collateral promise, though not used in the statute, are convenient enough to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another’s debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is [112]*112to subserve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time, with the promise of the principal, is not valid, unless manifested by evidence in writing. The latter, if made on good consideration, is unaffected by the statute,, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object, on the part of the promisor.”
Several cases are cited in illustration of this position, and the court then proceeds to say:
“ The rule to be derived from the decisions seems to he this: That cases are .not considered as coming within the statute when the party promising has for his object, a benefit which he did not before enjoy, accruing immediately to himself; hut where the. object of the promise is to obtain the release of the person or property of the debtor, or other forbearance, or benefit to him, it is within the statute.”
To apply this rule to the present case, we find that the testimony which would govern it, if believed, is that Hill had a judgment coming after the lien of the plaintiff, as a lien on the same property. If the property should he sold under the plaintiff’s lien, and only bring the amount of the first and second liens, Hill would lose all security by his judgment lien. If it should bring more, he would get something. He had, then, an interest in .preserving this property from sale. The testimony discloses his position just as the testimony in the case of the broker referred to by Chief Justice Shaw showed an interest on the part of the broker. The broker had. been employed to sell certain goods .which were taken in attachment. His interest was to go on and sell them. He promised under the circumstances. that if the attaching creditor would release his attachment, he would pay the debt. He was making a bargain for his own benefit.
The philosojihy of the matter seems to he as it is stated by Chief Justice Shaw, that in one class of cases all that can be said of the promise is, that it is made in order to get relief for another person, and it is, therefore, nothing but [113]*113a promise to pay the debt of another person; hut if the promisor has an interest of his own in the matter it is not a promise to pay another person's debt, but to pay what he adopts as his own debt. It is the price which he undertakes to pay for a benefit which he seeks. It happens that another person owes that money too; but there is nothing unreasonable in a party undertaking for a benefit which he receives thereby, to pay a certain sum which happens at the same time to be owing by another. We do not conceive that to be" an undertaking in any sense to answer for the debt or default of another person. If he does not pay it, it will be his own default -simply and directly. It is an original, direct undertaking on his own behalf, and not on behalf of another person, and is, therefore, not within the statute.
If, then, this testimony were to be believed, it involves a case of a promise which would be valid, although made verbally. The exclusion-of this memoi’andum statement of the verbal contract, inasmuch as it was the best evidence, may well have had an. injurious effect with the jury, because they were less likely to believe a statement from memory undertaking to set forth all of the terms of the agreement, than they were to believe the single statement that this paper had been agreed to by the parties as setting forth the terms of the agreement which had been verbally entered into. In the latter case the jury would have for their consideration the credibility of' a single statement, only, namely, the statement that this paper was agreed hy both parties to be a correct statement of the parol contract. We can see, therefore, that the exclusion of this paper might have very materially affected the case of the plaintiff in the minds of the jury, and hence it was an error which the court must take notice of.
Later on in the charge the court came to treat this very question as to the validity of the parol agreement. Thus, after stating the case which did not come within the statute, and stating especially the case where the parol contract had been executed, the court said:
“ It is said that this case belongs to this class of excep[114]*114tions; that there was an original agreement upon adequate consideration between Mr. Hill and the plaintiff in this case. It will he your duty to consider carefully the circumstances, to see if there was a benefit derived from any oral contract entered into by Mr. Hill. In the first place, if you find that the contract was, as claimed by the plaintiff here, and, in the next place, that Mr. Hill has derived a substantial benefit from that arrangement, then probably the plaintiff has a right to sustain this action and to recover what was stipulated, although it was by parol.” «
A statement of the rule of law on that subject is made further along. I shall he obliged to read some portion of the charge which is not excepted to in order to make intelligible that part which is.
“ It is said that he, and the representative of the plaintiff in this case, prevailed upon them to stay their advertisement; to withdraw their advertisement; they having sought to enforce the collection of that demand by an execution, and had advertised the property for sale. The advertisement • was undoubtedly withdrawn, for we heard nothing further from the sale. No further, proceeding, as far as we can learn from the testimony in this case, was taken in this direction. That is said to he. the consideration for this promise to pay the debt. If you can see, in all these circumstances which I have gone over, with as much respect for the testimony in the case as I could possibly exercise, that Mr. Hill has derived an absolute benefit from this, and that he promised absolutely and generally to pay this judgment of Mr. Williamson’s, then I instruct you that the plaintiff will be entitled to recover.”
I read again the explanatory part, in order to show the meaning of the next clause excepted to:
“If you come to the conclusion that the arrangement was a conditional one, and that Mr. Hill undertook only to pay in the event of effecting a compromise that was then pending, and if that compromise fell through, then the defendant would be' entitled to a verdict. If you come to the conclusion that he has, upon the whole, received no beneficial con[115]*115sideration for the compromise to pay this debt of Mr. Murtagh, you will also find a verdict in his favor.”
It is true, of course, that the party must receive the beneficial consideration; that is to say, if the consideration is promised and is not performed, there can be no recovery. But this mode of charging the jury gives them to understand that the consideration promised must turn out to be a benefit. That is the inevitable effect of the language used — that he must derive a. substantial benefit. Now, the consideration was the withdrawing of this advertisement for Hill’s benefit. It might not turn out to be of any use to him at all. For example, if Mr. Murtagh should take out of his pocket the debt he owed him and pay him, he would owe nothing to the withdrawal of the advertisement. Nevertheless, it is a perfect and sufficient consideration if the promisee submits to a sacrifice and withdraws his advertisement for the benefit and in behalf of the interest of the promisor, and not for the benefit of the original debtor, another person. This instruction leaves the jury to suppose that the benefit must turn out to be a substantial benefit to this party. It was enough, although it did not benefit him in the end, although he got his money from another source and not from this man, that the promisee made the sacrifice in behalf of his interest, and kept his promise. The testimony tends to show that he did both; that he made the withdrawal and continued to keep it out for the length of time agreed upon. That made a case of a promise made upon a consideration and under such circumstances as to show that it was not a promise to pa'y the debt of another, but a promise to pay that which the promisor undertook to make his own debt.
For these reasons, we think that there was error in the trial below, and that a new trial must be granted.
Mr. Chief Justice Cartter dissented.