The opinion of the court was delivered by
Redfield, J.This action is assumpsit upon a promise by subscription of a certain sum to pay the plaintiff, in consideration that plaintiff would locate and build its depot in Walden at a certain place. The plaintiff agreed to build the depot at this place, if parties interested in such location (among them the defendant) would raise and pay the plaintiff $1,200. At this time a portion of this sum had been subscribed. The jury have found that the plaintiff, by its president, required, in lieu of a general subscription by persons of whose responsibility the officers of the company had no personal knowledge, that some two or three responsible persons should assume to pay the plaintiff $1,200 ; and that thereupon B. J. Lance, Joel Harvey, and W. P. Whittier promised to assume the payment of said sum; and thereupon the plaintiff located and built the depot at the place required. After this, parties canvássed for and obtained further subscriptions, in all to the amount of $1,400 or more. This subscription was intended by the subscribers, not only to put the three men who had assumed to pay the plaintiff $1,200, in funds, but also to pay $200 towards establishing a telegraph to Cabot. These facts being established, made *40Lance, Harvey, and Whittier the contracting party with the plaintiff, and they alone could be sued for the breach.
The court charged the jury that if the undertaking of Lance and others was a mere collateral guaranty that the $1,200 should bo made good to the plaintiff, then the plaintiff might recover ; so no question arises on these exceptions about the Statute of Frauds. The court also told the jury, that if the plaintiff assumed to build the depot at the place in .consideration of said subscription, and relying upon it for the payment of the $1,200, and the parties afterwards substituted therefor the parol promise of Lance and others, and plaintiff agreed to look alone to them for payment of the $1,200, then it cannot recover in this suit. This is a well-settled rule of law. Admr. of Cilley v. Tenny, 31 Vt. 401; 1 Greenl. Ev. s. 303, and cases there cited. The exceptions seem to be aimed rather at the errors of the jury than of the court. ■
Judgment affirmed.