The opinion of the Court was drawn up by
Shepley J.— The case, as exhibited in the testimony, was one shewing, that the plaintiff had made a contract with John Doyle to deliver to him certain stone at an agreed price, to be used in building a dwellinghouse. That the plaintiff before he had delivered the stone, made known to the' defendant his determination not to deliver them upon the credit of John Doyle; and that the defendant thereupon said to him, as the witness Elwell states, “you bring the rock and I will see you paid for itand as Edwin Doyle states, sent a message to him at another time, requesting the witness to say to him, “ if he will bring the rock, I will see that he has his pay.” There is, legally speaking, no essential difference in the promise as proved by these witnesses. It was decided, while this country was but a colony of Great Britain, that such a promise was within the statute of frauds. Jones v. Cooper, Cowp. 227; Matson v. Wharham, 2 T. R. 80; Anderson v. Hayman, 1 H. Black. 120. Those cases have been often cited and approved in the more recent decisions.
The counsel for the plaintiff, however, contend, that “ the Judge erred in his instructions, as to what constituted an original promise.”
The cases cited to sustain the position are those of Copeland v. Wadleigh, 7 Greenl. 141; Duval v. Trask, 12 Mass. R. 154; Perley v. Spring, idem. 299. The latter case was substantially overruled in the case of Cahill v. Bigelow, 18 Pick. 369. The contracts in the two former, on which the defendants were decided to be liable, were made in writing. In the case of Cahill v. Bigelow, it is said, that when the promise is made, as in this case, before the credit is given, the test to decide, whether one promising is an original debtor or a guarantor, is, whether the credit was given to the person receiving the goods. That test was efficiently applied in this *350case by the instructions to the jury, not directly by an inquiry whether the credit was given to the one receiving the goods, but by an inquiry, whether the credit was given to the defendant. It is not perceived, that the jury could have misunderstood, or have been misled by the language used in the instructions. The effect was to inform them plainly, if the rock were delivered to the defendant as an original promisor, the plaintiff would be entitled to recover. As there was testimony in the case tending to prove, that the stone were delivered to the defendant and also tending to prove, that he acted as the agent of John Doyle in receiving them, it was necessary to use some language to denote and have the jury consider, in what character they were delivered to him ; and the words as an original promisor do not appear to have been unsuitable for that purpose. The instructions proceeded to state, if not satisfied that it was so delivered, but were satisfied that it was originally contracted to John Doyle, and that the defendant agreed to see the plaintiff paid for it as surety or guarantor, he would not be liable without other proof. To enable the jury to find a verdict for the defendant under these instructions they must have found, that the rock was not delivered to the defendant on his credit as an original promisor, and that his promise was made as surety or guarantor on a contract originally made with John Doyle. The point of the objection seems to be, that the jury were not by the instructions required also to find, that the stone were actually delivered to John Doyle in performance of that contract, and upon his credit. But if they found that the stone were not delivered on the original promise or on the credit of the defendant, and that his promise was made in the character of a surety or guarantor, it would seem [to follow, that they must have been delivered on the credit of John Doyle, and if not, to be immaterial to ascertain in this suit, on whose credit they were delivered, for the defendant would not be liable, if the other instructions were correct. The instructions further stated, that the defendant would not in such case be liable, unless the jury should find that the promise of the defendant was made “upon some new consideration other *351than the delivery of the rock, and that any expectation of «profit, or hope of benefit, that might be anticipated from goods, that might be furnished by defendant to John Doyle,” could not constitute a sufficient consideration to make such collateral promise binding.
The counsel make a distinction between a new and a good consideration; and refer to Roberts on Frauds, 232, and to the case of Nelson v. Boynton, 3 Metc. 396, to sustain it. Mr. Roberts says, “ If it spring out of any new transaction, or move to the party promising upon some fresh substantive ground of a personal concern to himself, the statute of frauds does not attach upon such a promise.” In other words the promise to be binding, and not within the statute, must spring out of some new transaction, or out of some fresh substantive ground of personal concern to himself. Or in the language of Kent C. J. in the case of Leonard v. Vredenburgh, 8 Johns. R. 39, it must arise “ out of some new and original consideration of benefit or harm moving between the newly contracting parties.” In the case of Nelson v. Boynton, Shaw C. J. speaking of a promise of the like kind says, “ the latter if made on good consideration is unaffected by the statute.” It is obvious, that the word good was not used in a technical sense, to denote a consideration of blood, as distinguishing it from a valuable consideration, but was used with reference to a sufficient or valuable one. And it was not his purpose then to allude to, or consider, whether the contract between the original parties could constitute a good or sufficient consideration between the newly contracting parties. The term, new consideration, is used in many of the decided cases, or words equivalent to them, and is suited to inform the jury clearly, that the collateral or secondary promise must be founded upon a consideration arising between the parties thus contracting, and different from that, upon which the original or first contract was founded.
As it respects the latter clause of this branch of the instructions, the delivery of the stone constituted the consideration of the promise according to the finding of tho jury, be*352tween the plaintiff and John Doyle; and could not of course be the consideration of any new promise between the parties, upon which the credit was not given. And any expectation or hope of profit, which the defendant might anticipate, was not a matter, with which the plaintiff had any connexion. It was not a matter of benefit or harm moving between the newly contracting parties.” In the first class of cases as stated by Kent C. J. the consideration for the original and for the collateral undertaking may be the same. But not in those cases, to which these instructions had reference, where the contract is collateral, and not in writing, and yet good, because not within the statute. So far as the case of Russel v. Babcock, 14 Maine R. 138, may be in conflict with these positions, it was stated in the case of Hilton v. Dinsmore, 21 Maine R. 433, to be unsupported by authority.
The counsel also insists, that the instructions respecting the mortgage upon thé estate of John Doyle were erroneous. The last cargo of stone was delivered in July, 1841. A wit* ness states, that a final settlement was made between the parties to the mortgage in the month of October, 1842, and the balance due upon it ascertained. The argument is, that as ‘"'the mortgage was given to secure the gross sum of twenty-five hundred dollars, which might be furnished in goods and materials towards the erection of a house for the mortgagor,” it might have been the understanding of the parties, “ that the mortgage was to remain and be held as security for the defendant’s liability for the rock.”
Admitting the mortgage to have been made for the purpose stated, any other claim, than such as might arise from goods and materials furnished for the use of the mortgager, would not be secured by it. A collateral liability, or one assumed as surety or guarantor, would not be within its terms. It cannot be presumed, that any such liability was intended to be secured, for it does not appear, that the defendant ever assumed any to the plaintiff at the request, or with the knowledge of John Doyle.
Exceptions overruled.