referee did not commit any error in the case, unless it was in holding that the plaintiff could not recover upon the promise of the defendant, to see the plaintiff did not lose anything or should get his pay, if he would go on and finish the mill according to the contracts between Horton and the defendant. After the plaintiff commenced working on the mill, he became fearful that Horton was not responsible for the performance of those contracts, and communicated that fact to the defendant. The defendant, “ to induce the plaintiff to go on and finish the mill according to those contracts,” then made the promise to the plaintiff which I have mentioned. The referee held this promise was void by the statute of frauds, (2 R. S., 135, \ 2, sub. 2.) The controlling ques*312tion in the case, therefore, is, whether this was a “ special promise to answer for the debt, default or miscarriage of another person.” If it was such a promise, it was void, because it was not in writing. The plaintiff's counsel insists that the promise made was not collateral but original ; that the consideration for it was beneficial to the defendant, and therefore binding upon him. If the referee had found that the plaintiff abandoned his contracts with Horton, or refused to go on under them, and that thereupon the defendant promised him if he would go on and finish the mill, in the manner specified in the contracts between Horton and the defendant, he would see the plaintiff did not lose anything, or should be paid for his work, and that the plaintiff relying upon such promise did go on and complete the mill, the defendant would be bound to pay the plaintiff for all the work he performed subsequent to such promise. But the referee has not found that the plaintiff abandoned his contracts with Horton or refused to go on under them; and has found there was affirmative evidence that the plaintiff regarded those contracts as being in full force. It therefore seems to be very clear, if the plaintiff completed the mill so the defendant was satisfied it answered the contracts between him and Horton, he could have recovered of Horton the price he agreed to pay the plaintiff therefor. And it is equally clear that the promise of the defendant “ to see the plaintiff got his pay,” or should not lose anything if he would go on and complete the mill, was collateral, and a special one to answer for the debt, default or miscarriage of Horton. The most that can be claimed on the part of the plaintiff, is that the promise of the defendant induced the plaintiff to go on and perform his contracts with Horton; and that the defendant assumed to be surety for Horton’s performance of those contracts. The plaintiff was still in the employ of Horton, and was not at any time servant or employee of the defendant. Horton remained the principal debtor of the plaintiff. It follows *313that the defendant is not liable on his promise, because it was not in writing.
I have not thought it necessary to cite authorities to sustain any of the foregoing views, or deemed it profitable to comment upon any of the decisions relied upon by the counsel for either party. I will only say, I have examined all the authories cited upon the points of the counsel in the cause.
The judgment in the action should be affirmed with costs.
Parker, J., concurred. Campbell, J., dissented, and delivered a dissenting opinion.
Judgment affirmed with costs.