Newell v. Ingraham

The opinion of the court was delivered by Bennett, J. The case does not find that the contract of the plaintiff with Leland, by which the former had undertaken to carry the mail from Cambridgeport to Londonderry, had been rescinded, or, in any way abandoned by Newell; but the contrary appears. It was still out-standing, and in full force. Upon the non-performance, by Newell, it gave a remedy to Leland for damages. When performed by New-ell, it, at all times, furnished him the means of a remedy against Leland for his pay. [425] The undertaking, then, of the defendant, to see the plaintiff paid, though not in its terms, yet in fact, was collateral and ancilliary to the undertaking on the part of Leland; and there was no new and independent consideration, moving between the parlies to this suit. The rule is well settled, that when the promise is ancilliary to, and in aid of, the promise of another, it is within the statute of frauds, This will always be the case, where there is no new and independent consideration, and there exists another, and a previous liability. This is the doctrine of Sinclair v. Richardson, 12 Vt. R. 33; and indeed runs through all the cases. Judgment of the county court js affirmed.