The opinion of the court was delivered by
Collamer, J.—When an agreement is auxiliary to a subsisting agreement, which remains in force for the party now claiming on the new contract, then the new contract is collateral to the other, and must be in writing. It is within the statute. But when the first contract is rescinded, superseded or abandoned, so as not to be in force in the plaintiff’s favor, then the new contract is independent and is not within the statute.
When a contract is once made it cannot be rescinded but by consent of both parties. But it does not follow that because a man has entered into a contract and entered on its performance, he may not utterly abandon and decline to perform it. If he does so, it still remains unrescinded and in force, as against him, and damages may be recovered for his non-performance; yet he can have no action thereon. He may, from the employer having become insolvent, refuse to proceed without a guaranty of his credit, but he can enforce no such guaranty unless it be in writing, as it is collateral. He may, from a consideration that the employer has become insolvent and absconded or otherwise become wholly irresponsible, entirely decline to proceed any further on the contract with him, preferring to lose what he has done, to completing the contract and losing all. ' If in this case a third person make an entire, substantive, independent contract with him to perform the same service, this may be enforced, though not in writing, as it is not collateral. Whether the new contract be auxiliary or independent is a question of fact. If the terms used on the occasion clearly imply that the former contract is to continue and the new one be auxiliary thereto, then it is matter of law that the new contract must be in writing. Such as the saying “proceed and if he does not pay you Ixoill.” But if the terms be uncertain, equivocal or ambiguous, then it must always be left to the jury to find whether, in fact, the former contract was to continue or whether the whole was abandoned and the new contract and credit substituted in its place. In this case there was nothing in the terms used, which shows, as matter of law, whe*39ther the Upson contract was to continue or not. That was a question of fact for the jury to find. If, from the language used and the other facts, which were or may be put into the case, the jury find that it was understood that the plaintiff was to proceed on his contract with Upson and the defendant was only to pay on the failure of Upson, then the plaintiff cannot recover of the defendant without a writing. But if the jury find it was then understood that the plaintiff wholly abandoned his contract with Upson and was to proceed entirely on the employment of the defendant, then the plaintiff should recover of defendant without any writing; and the same facts which would enable him to recover of the defendant would prevent his recovery of Upson.
Judgment reversed.