The opinion of the court was delivered by
Royce, J.The motion in arrest has not been urged in the argument, and will, therefore, be passed without remark.
There are two particulars in which the evidence on trial varied from the averments in the declaration: — One in reference to the alleged equitable obligation of both these defendants to settle and pay the claim of Campbell; and the other in relation to the alleged fact that Campbell’s suit against the plaintiff was pending when the defendants made the promise declared on. It might be sufficient to remark, that the former allegation can only be regarded as inducement to the promise, and that the latter is immaterial. But there is another ground upon which, in this stage of the case, the objection must fail. The point of variance does not appear to have been raised in the court below; and comes incidentally to our notice on comparison of the declaration with the *644bill of exceptions. And since these variances could neither affect the intrinsic merits of the cause, nor the validity of the judgment, they are not to be regarded in revising the case upon exceptions. Indeed, no objection on the ground of variance, which was not raised in the county court, and which might there have been obviated by amendment, should be sustained in this court, unless the variance is both apparent upon the record, and of such a character that the judgment, if affirmed, would fail to protect the parties in reference to the matter actually litigated.
It is objected that the promise on which the plaintiff recovered, was void as against .the defendant, Charles Thompson, under the statute of frauds, because not evidenced by writing. The objection assumes that Franklin W. Thompson was under a previous obligation to p?y Campbell’s demand against the plaintiff; so that the promise of the two defendants, on which this action is founded, was a promise, on the part of Charles Thompson, to answer for the debt of another. Without entering into the question discussed at the bar, whether, admitting the fact assumed, the objection would be removed by the object and terms of the promise, (it being a promise to indemnify against the claim of Campbell, and not expressly to pay it) it will be sufficient to determine the correctness of this assumption, which is the basis of the whole argument against the validity of the promise declared on.
The case finds that Franklin W. Thompson owed the plaintiff $177.00; that they met to adjust that demand, when the plaintiff received of Thompson a sum of money, and a verbal order on Campbell for the balance, being $88 ; that when the plaintiff resorted to Campbell for the $88, he refused to pay the money on a verbal order, and required the plaintiff to procure a written order from Thompson, or to give his own accountable receipt for the money. The plaintiff took the latter course, and obtained the money on his own receipt, to account to Campbell for it on demand. It is clear that by this transaction the balance due from Thompson to the plaintiff was not paid, but the latter contracted a debt of equal amount to Campbell. It was doubtless contemplated that Thompson would pay the debt to Campbell, and thus discharge his own debt to the plaintiff; but in the *645mean time the two debts were actually distinct and independent. Nor does the case disclose any distinct undertaking on the part of Thompson to make payment to Campbell. In this condition of things Campbell demanded payment of the plaintiff, when Thompson insisted he had paid Campbell for the plaintiff. The two defendants, thereupon, requested the plaintiff to suffer a suit by Campbell, and thus afford Thompson an opportunity to prove his alleged payment; in consideration whereof they made the promise declared on. This agreement did not immediately relate to any debt of Thompson, but to a disputed claim which Campbell asserted against the plaintiff And the consideration for the agreement originated entirely between the present parties; Campbell was a stranger to it, as he was to the agreement itself. We are, therefore, satisfied that the case is not at all affected by the statute of frauds.
Judgment affirmed.