It appears from the motion, that the defendant upon the trial in the court below objected to the evidence offered by the plaintiffs to sustain the action, on the ground, 1st, That there was ho count in the plaintiff’s declaration to justify such proof; 2nd, That the agreement sought to be proved, if made, was void, not being in writing; and 3d, That no action at law could be maintained upon such an agreement, even if in writing. The evidence having been admitted, the court were requested to charge the jury to the same effect, and the court declined to charge as requested. In thus receiving the evidence objected to, and declining to charge, the defendant insists that the court erred. We think otherwise.
1. We think, in the first place, that by the contract as claimed by the plaintiffs, and which we must presume to have been found by the jury, the defendant became indebted to the plaintiffs, by an assumption of the debt of Filley & Co., to the extent of seventy-five cents on the dollar of that debt, and it is elementary law that where a sum certain is due on a simple contract,-indebitatus assumpsit will lie to recover it. It is true that the language of the motion in respect to the assumption claimed is that “ the defendant then and there agreed to pay and guarantee the debt to the plaintiffs, ” but it is clear from the whole statement of the contract, that it was intended to be an absolute contract to pay the debt, and that the word “ guarantee” as used in that connection is not to be understood in a technical sense. We see no objection therefore to the form of the action.
*3492. And we think, in the second place, that the evidence was properly admitted, and the contract provable although it rested in parol.
We have no disposition to relax the rules of construction applicable to the statute of frauds, or in any manner to weaken that statute. Our views on that subject are fully expressed by Judge Dutton, in Clapp v. Lawton, 31 Conn., 95 ; and if this case was as claimed, analogous to that, we should come to the same conclusion in respect to it. But this case differs essentially from that. There a third party received the property of the debtor and promi sed him generally to pay his debts. None of the creditors were parties to the arrangement, and the original indebtedness continued as before. Here the contract was tripartite, between the debtor, a creditor, and a third person; and it contemplated the discharge of the original debtor, and a new obligation, by the third party, to the particular creditor. Such new obligation and indebtedness is not within the statute of frauds.
In Turner v. Hubbell, 2 Day, 457, the distinguished coun sel for the defendant in error deduced from the cases which had then occurred under this branch of the statute, the following definition of the promise intended by it, to wit: “ An undertaking by a person, not before liable, for the purpose of securing or performing the same duty for which the party for whom the undertaking is made, is, at the same time, liable,” and it was adopted by the court. With a single modification that definition furnishes as perfect a test as has ever been, or, we think, can be devised. The modification required is this : In the case of Williams v. Leper, 3 Burr., 1886, the promise to pay the debt was made after the original debt- or had been discharged by reason of a distress, and the counsel in Turner v. Hubbell seem to have assumed that a contract to pay the debt of another would be within the statute of frauds if the original debtor was liable at the time the promise was made. But it is now well settled that if the original debtor is discharged by the new contract it is not within the statute. See the cases cited by Judge Dutton in his revision of Swift’s Digest, page 248. The foregoing defi*350nition may be modified therefore, so as to read : “ An undertaking by a person not before liable, for the purpose of securing or performing the same duty for which the party for whom the undertaking is made continues liable. ” Applying this test to the case in hand, it is obvious that the objection of the defendant ought not to prevail.
It was the pwrpose and effect of the tripartite contract in question to discharge the original debtors in consideration of their giving up their property to the defendant, as well as to onerate the defendant, in consideration of that discharge, the assent of the plaintiff to the delivery of the property to the defendant, and of his agreement to loan the funds necessary to enable the defendant to purchase the debts and carry out his speculation. As the original debtors did not continue liable, an essential element of the test was wanting, and the contract was not within the statute.
3. And we also think that the court did right in excluding the paper offered from the consideration of the jury. It was of no importance in respect to the issue between the parties. It was confessedly an inoperative paper, and did not bind the plaintiffs, because not signed by all the creditors. Nor did it tend to prove any fact material to the issue between them. The agreement between them, whether intended to make the defendant a principal and substitute debtor, as the plaintiffs claimed, or whether it constituted the defendant the agent of the plaintiffs, as he claimed, was made without reference to the paper, and with knowledge that it was inoperative. Having no connection with the agreement as inducement, consideration, or subject matter, it had no connection with or bearing upon the case. And being an inoperative paper, no fraud affecting the subsequent agreement between the parties could be predicated upon it. It was therefore properly withdrawn from the consideration of the jury, as tending to confuse and mislead them.
A new trial must be denied.
In this opinion the other judges concurred.