The opinion of the court was delivered by
Redfield, Ch. J.The questions in this case arise upon the defendant’s account. It is claimed :
1. That the plaintiff’s Undertaking was merely collateral, and so within the statute of frauds. It is no doubt true that contracts of indemnity, or to pay upon condition that the 'promisee does not receive pay in some other way, are within the statute of frauds. But this is upon the ground that it is an agreement to answer for the “ debt, default or miscarriage of another,” in the very terms of the English statute of frauds. But when no other person is liable for the same debt, the case is not within the statute, although the party may expect to obtain pay from some other fund which fails. As if a teacher be hired to teach either a public or private school to be paid a certain price if, in one case the public money do not pay, or the other the tuition do not pay, this is an original and not a collateral undertaking, although it is conditional in some sense. Such is the present case. The plaintiff was to pay what the subscription did not, and it was an original promise.
2. We think the service was properly chargeable to plaintiff in the first instance, subject to what might be obtained upon the subscriptions, and may therefore be recovered in this action. It is not a claim for damages.
3. There does not seem to have been any such neglect of duty in regard to keeping the account, or collecting the subscriptions, as to deprive the defendant of all claim to compensation. If any loss accrued inconsequence, it should fall upon the defendant. And in regard to doubts raised by the loose manner of doing the business, they should be solved against the party causing them. But he does not thereby forfeit all claim.
4. In regard to the defendant’s refusal to take part in the exhibition as an actor, it would seem from the report, in every view. *230that it was expected he would, and that he finally refused to do so-But it does not appear that the contract was entire, or that any compensation was expected for the dramatic portion of the service, or that this had in the plaintiff’s mind any connection with the employment, or formed any inducement to employ him in the other portion of the service. If not, the refusal to perform as an actor is no ground of reducing the compensation for the other services. And destroying the subscription is matter of evidence merely, in which view it seems to have been looked upon by the auditor. Tlxe case seems, from all we can learn, to have been correctly decided.
Judgment affirmed.