#### SHEPPARD v. NEWTON.

(Filed November 15, 1905).

Statute of Frauds — Debt of a Third Person — Evidence.

1. Where a defendant lias made a promise to answer the debt of another and seeks protection under the provisions of section 1552 of The Code, it must be shown that the debt is that of a third person, and that such person continues liable for the same. If the debt claimed is an original obligation of the defendant, or if the creditor, in accepting the obligation or promise of the defendant and in consideration thereof, has released a third person who was the original debtor, the statute has no application.

2. In an action to recover balance of house rent where the plaintiff testified that he rented the house to the defendant through an an agent and that the defendant paid the rent in person and through his employer, and that the defendant promised to pay the balance due and the employer testified that he charged the money to the defendant’s account; and the defendant testified that he paid the rent for his mother and that he never rented the house, and the agent testified that he did not rent the house to the defendant, held, that the plaintiff is entitled to have the case submitted to the jury on the question whether the defendant is not answerable as the original or present debtor.

AotioN by B. J. Sheppard against Jerry Newton to recover $81 alleged to be due for the rent of a house, tried on appeal from a justice of the peace, by Judge Henry E. Bryan and a jury, at the September Term, 1905, of the Superior Court of Foesyth County. The defendant denied any and all liability on the issue as to indebtedness. Both sides offered testimony as follows:

The plaintiff testified: “I claim $81 and interest from the defendant as house rent. The defendant had rented the house for two or three years. The house was rented at first to Rufe Ogburn; he occupied it over a year and then exchanged houses with the defendant Newton, and Newton and his father’s family went into the house. Ogburn and *534Newton exchanged houses in 1898. I never rented the house to the defendant’s father. The defendant paid me $200 or $300 on account of rent, and no one else ever paid any rent. The house rented for $9 per month; the defendant paid the rent; his last payment was December 4, 1901, and that was paid after the defendant gave up the house — two months after. Sometimes the defendant would pay in cash and sometimes through Lipfert, Scales & Oo.; the defendant worked with them. I rented the house to Rufe Ogburn; never rented it to anyone else except through Ogburn; I never rented it to the defendant except through an agent. The father and mother of the defendant lived there in the house, I suppose. I collected rent from the defendant, and he said he would be responsible for it. There is still a balance of $81 due from the defendant for rent.”

Frank Lipfert, for plaintiff, testified: “The defendant worked for me. I paid the plaintiff money for the defendant several times and charged it to the defendant’s account.”

Rufus Ogburn, for the defendant, testified: “I rented the house twelve months and exchanged it with Mrs. Newton and she went in there. I received the rent from Mrs. Newton. Jerry Newton lived there until he was married there; I never said a word to him about it.”

The defendant, as witness for himself, testified: “I never rented from Sheppard or promised to pay him anything; don’t know who rented the house. I paid Sheppard for my mother; I boarded with her; I boarded there sometime; I don’t know that I paid the rent after I left there; I think I paid some after I quit boarding there. After I left there I paid, I think, what was paid. I don’t know who rented the house from Sheppard nor how much it rented for; I never promised to pay the rent. Sheppard kept writing to me about it so sharp, I just concluded that I would not have any more to do with it.”

The plaintiff then testified as follows: “I would get after *535Newton and urge him to pay me this balance of $81, and be would tell me be would pay it as soon as convenient. On one occasion be promised to pay me, but said be was tben building a bouse and was bard up for funds.”

On motions made in apt time by tbe defendant, there was judgment dismissing tbe action as on nonsuit and tbe plaintiff excepted and appealed.

Lindsay Patterson for tbe plaintiff.

No counsel for tbe defendant.

HoKe, J\,

after stating tbe case: His Honor below directed a nonsuit, bolding tbat on tbe foregoing testimony, recovery by tbe plaintiff was prevented by tbe Statute of Frauds, Code, sec. 1552, wbicb provides, among other things, tbat no action shall be brought to charge any defendant upon a special promise to answer tbe debt, default or miscarriage of another person, unless tbe agreement shall be in writing.

When a defendant has made a contract or promise of this character, otherwise binding and seeks protection under tbe provisions of this statute, it must be shown tbat tbe debt is tbat of a third person, and tbat such person continues liable for tbe same. If tbe debt claimed is an original obligation of tbe defendant, or if tbe creditor, in accepting tbe obligation or promise of. tbe defendant and in consideration therefor, has released a third person who was tbe original debtor, the statute has no application. This instance of tbe doctrine is well expressed by Butter, J., in Packer v. Benton, 35 Conn., 350, where tbe promise to wbicb this feature of tbe statute applies is thus defined: “An undertaking by a person not before liable, for tbe purpose of securing or performing tbe same duty for wbicb tbe party, for whom tbe undertaking is made, continues liable.”

A statement on tbe same subject, somewhat more extended and very satisfactory, will be found in Clark on Contracts, *536p. 67, as follows: “There must either be a present or prospective liability of a third person for which the promisor agrees to answer. If the promisor becomes himself primarily and not collaterally liable, the promise is not within the statute, though the benefit from the transaction accrues to a third person. If, for instance, two persons come into a store and one buys and the other, to gain him credit, promises the seller ‘if he does not pay you, I will/ this is a collateral undertaking and must be in writing; but if he says, ‘Let him have the goods and I will pay/ or ‘I will see you paid/ and credit is given to him alone, he is himself the buyer, and the undertaking is original. In other words whether the promise in such a cáse is within the statute depends on how the credit was given. If it was given exclusively to the promisor, his undertaking is original; but it is collateral, if any credit was given to the other party.” To like effect-are the decisions of our own court. Whitehurst v. Hyman, 90 N. C., 487; White v. Tripp, 125 N. C., 523.

Applying these principles to the foregoing statement of the evidence, the court is of opinion that there was error in. directing a nonsuit, and the plaintiff is entitled to have his cause submitted to the jury on the question whether the defendant is not answerable as the original or present debtor on the plaintiff’s demand.

New Trial.