
    John J. Colt versus John B. Root.
    
      A, a member of a manufacturing corporation, and so in certain events liable for tne debts of the corporation, in consideration that B, the holder of a promissory note of the corporation, would deposit the note with a third person, until A should take up another note made by B to C, and with the proceeds thereof pay the note first mentioned, promised B to save him harmless from his said note to C.—It was held that such promise need not be in writing by the statute of frauds, as a promise to pay the debt of another.
    Where the want of an averment of notice in a declaration is cured by a verdict.
    The declaration was in a plea of the case, for that the said Root, in consideration that the plaintiff would deposit with one Merrick a certain promissory note, which he held against the Housatonic Manufacturing Company, whereof the said Root was a member, and for the debts whereof he was liable, which note was payable to one Weller or order, and by him endorsed to the plaintiff, whereon was due to the plaintiff 160 dollars, and that the plaintiff would suffer said note to remain with Merrick until Root should take up from one Janes another promissory note made by the plaintiff to Janes, and with the last-mentioned note, so to be taken up, pay the note first mentioned;—promised the plaintiff to save him harmless from his note to Janes, and all costs arising thereon. And the plaintiff, in consideration of the premises, did deposit with Merrick the first-mentioned note, to remain with him according to Roofs wish; but the said Root has not saved the plaintiff harmless according to his promise; but the plaintiff has been sued by Janes, and subjected to great costs, viz., 50 dollars, and an execution has been issued against him for 181 dollars, on which a carding-machine, the property of the plaintiff, of the value of 1000 dollars, has been seized and sold, &c. f * 230 ] *The cause was tried upon non assumpsit pleaded, before Wilde, J., at the last May term in this county. It appeared in evidence, that, in July, 1818, the plaintiff held a note against the Housatonic Manufacturing Company, to which corporation the defendant belonged; that the plaintiff was about going out of the commonwealth, and was desirous to obtain the money on this note, to enable him to discharge one he had given to Janes; that it was agreed by the plaintiff, that he would not sue the note he held against the company, but would leave it in the hands of a third person, until he should return, which was not until the February following; that, in consideration of this, the defendant promised the plaintiff, that, if Janes should sue him upon the note he held against the plaintiff, he, the defendant, would indemnify the plaintiff from all cost and harm ; that the plaintiff did leave the note against the company with the person agreed upon, until the February following, when he took it away, and sued it in his own name, and at the last May term recovered a judgment thereon against the company; that the plaintiff was sued by Janes immediately after the above arrangement, and the defendant, as well as the plaintiff, had notice of the suit; that a judgment was recovered by Janes upon the note, and an execution issued thereon, the costs of the suit, including the execution, being 8 dollars, 75 cents; that, in February, 1819, after the execution was issued, and before it was levied, the plaintiff returned and took the note against the corporation out of the hands of the third person, with whom it was deposited, and then knew that the execution against him had issued; that in May, 1819, the execution was levied upon a carding-machine, belonging to the plaintiff, he being then absent from the commonwealth; that notice of the levy was given to the defendant; but he neglecting to raise the money to satisfy the execution, the machine was sold for much less than its value; that, notice of this being given to the plaintiff by his agent, he came from * Riga, [ * 231 ] in the state of New York, a distance of 300 miles, to redeem this property, and was compelled to pay 50 dollars, in addition to the sum for which it was sold at auction, to have it restored to him; and that the cost of levying the execution was 8 dollars, 35 cents, which sum, with the costs of court, and the 50 dollars, was paid by the plaintiff in June, 1819.
    The plaintiff contended that he was entitled to recover, as damages in this action, the above three sums, and also the expenses of his journey from Riga, with a compensation for his time.
    The defendant contended that the plaintiff was not entitled to recover any thing, the contract declared on being void, because not in writing; and the contract proved being different from that stated in the declaration, and he having objected to the proof of the contract by parole. He also insisted that the contract was void fat want of consideration; but that, if the plaintiff was entitled to re cover any thing, it was only the costs of court and of the execution.
    The judge overruled the objection to the evidence, and told the jury that there was a sufficient consideration for the promise; and he instructed them to find their verdict for the costs of court and of the execution, and the 50 dollars paid by the plaintiff to redeem his property, with interest from the time the money was paid; and that they might also inquire what sum the plaintiff would be entitled to recover for the time and expense of his journey from Riga, in case the Court should be of opinion that any damage could be recovered by the plaintiff, on that account, in this suit.
    The jury found a verdict for the plaintiff for the sum of seventy four dollars and eighty-one cents; and that the time and expense of the journey from Riga were worth thirty dollars.
    If the evidence was incompetent or insufficient to support the action, the verdict was to be set aside, and a new [ * 232 ] * trial had; if the rule of damages, as prescribed by the judge, was wrong, the verdict was to be so altered in its amount, as to conform to the opinion of the whole Court.
    
      Hooker, for the defendant.
    The declaration does not disclose any cause of action. The defendant is first said to be liable for the debts of the corporation, being a corporator. But it is not stated nor shown how he is so liable. The mere circumstance of his being a member of the corporation, constitutes no liability by the common law; nor, by statute, does it create any present liability, as we shall show hereafter. The heir sued on a promise to pay the bond of his ancestor, in consideration of forbearance, must be shown, in the declaration, to be bound in the bond as heir, even although he have assets . But, granting the liability as stated, no consideration for the new promise, grounded on such liability, appears. The note of the company was to be deposited with Merrick, to remain until a certain event should take place, &c. But there is no averment that it remained with M. at all. The mere depositing of a thing does not imply that it did so remain ; but, rather, that it was still subject to the control of the plaintiff. Neither is there any averment that the plaintiff forbore to sue the company upon their note; nor that Merrick was authorized to give up the note, or to cancel it.
    In declaring upon a contract not under seal, it is always necessary to state so much of it as contains the entire consideration, and the entire act or duty to be done in virtue of that consideration, the non-performance of which duty is complained of . In the present case, the two notes which form the subject of the contract, are not described in amount or tenor, in any manner so that judgment can be rendered against the defendant.
    There is a substantial variance between the declaration and the evidence. The plaintiff, by the declaration, was to leave the H. M. Company’s note with Merrick, until the defendant should take up the note which Janes held * against the plain- [ * 233 ] tiff; and, with this note, should take up that of the H. M. Company, and save the plaintiff harmless from his note to Janes. The promise, as proved, was that the plaintiff would not sue the H. M. Company’s note, but leave it in the hands of a third person, until his return to the commonwealth, which took place in February following July, 1818, the time of the agreement. The two contracts are essentially different. Suits could be brought upon both ; and neither judgment could be pleaded in bar to the other. By the testimony, the plaintiff returned in February, 1819, and then sued the H. M. Company’s note; at which time no harm had arisen to him, except the costs of court, and the expenses of his journey. He might have brought his action upon the contract in February; and might afterwards have sued for the remainder of the damage sustained by him . The contracts are not the same, nor consistent. Two suits necessarily suppose two different causes of action. This single statement of the declaration is the gist of the action ; it arises out of the action, and is made to depend upon it. No verdict of a jury can cure such a variance.
    But further, the contract declared on was rescinded by the plaintiff, by his taking from Merrick the H. M. Company’s note, and suing it. It ought to have remained deposited until this time; it was merged and extinguished in this new contract, if the plaintiff elects to proceed on this latter. He cannot have the benefit of both. But this was in truth one entire contract; and one suit upon it must cover the note and all damages .
    Again, there is no consideration for this promise, either in the declaration or the evidence. If the debt of the company be considered as the debt of the defendant, it was no benefit to him, or damage to the promisee, that the defendant promised to pay his own debt. If a man promise to pay an existing debt at a day certain, and the promisee, relying on this promise, makes a contract, or * could purchase stock, or any thing else, [ * 234 ] on that day at a great profit, which he loses by the promisor’s failure, he can recover no damages beyond the interest. A promise to pay damages for detention, beyond the principal and interest, is void . So, a promise of a debtor, on execution, to pay the execution, in consideration of the stay of the same, is void .
    The defendant was not liable, either at the common law or by the statute, to be sued for the debt of the corporation. By the statute, when judgment and execution have been obtained against a manufacturing corporation, and no corporate property is found, or the money is not paid within fifteen days after demand upon the treasurer, the estates and bodies of the corporators are liable, and not before . The defendant was liable only upon a contingency. It was then, in the eye of the law, no benefit to him that the corporation should be forborne, or discharged. The defendant, too, might have transferred his shares in the stock of the company, and, by that means, at once have extinguished all right of resorting to him.
    But the contract is void by the statute of frauds, not being in writing. If the defendant was not directly liable for this debt of the JB. M. Company, he undertook for the debt, default or miscarriage of another. The case of Winkworth vs. Mills 
       is strongly in point, and shows that where one is not directly, absolutely and unconditionally liable for the original debt, but may be so eventually on a contingency, his promise must be in writing.
    If any thing is, however, recoverable in this action, it can be only the execution and costs of court. The promise declared on is, to save harmless from the note, and all costs. This must mean the legal costs only. Nothing more could have been in the contemplation of the parties. This construction the plaintiff has himself put upon the agreement, by taking the note from the depositary when no other costs had accrued. Indeed, no such damages as are now claimed, for the great sacrifice on the plain- [ * 235 ] tiff’s * property, and the expenses of the journey from New York, could have been viewed as contingent, or even possible.
    
      Jarvis, for the plaintiff,
    insisted that this was not a case within the statute of frauds. It is not brought to charge the defendant, upon a promise to pay the debt of another, but his own. A sufficient consideration is set forth in the declaration; the evidence proves that the defendant is a member of the Bousatonic Manufacturing Company; and the Court know, as matter of law, that, being a member, he is answerable for the debts of the company. Thus then, the promise of the defendant was to pay a sum for which he was before liable, not the debt simply of the company .
    The variance between the declaration and the evidence, relates wholly to the consideration, and not to the promise. Let all that part of the declaration which varies from the proof be stricken out, and the remainder will be abundantly sufficient for the plaintiff’s purpose; a sufficient cause of action will be shown, and the evidence will well maintain it; the part that varies being mere surplusage .
    With respect to the amount of damages, the plaintiff is clearly entitled to all he has lost by the defendant’s non-performance of his engagement.
    
      
      
        Selwyn, 58.—1 Lev. 165.
    
    
      
       1 Campb. 262.
    
    
      
      
        Doug. 667, Bristow vs. Wright.—6 East, 564.—9 East, 349.—8 Johns. 253, Crawford vs. Morrel.
      
    
    
      
       1 H. Black 551 Rudder vs. Price—7 D. & E. 200, Chater vs. Becket—8 Johns. 253
    
    
      
       2 Johns. 442.
    
    
      
      
        Cowp. 129.
    
    
      
      
        Stat. 1808, c. 65.
    
    
      
      
        2 Esp. Rep. 484.
    
    
      
       3 Wils. 308, Williams vs. Leaper.—3 Burr. 1886, S. C.—2 East. 325, Castling vs. Aubert.
      
    
    
      
       1 Chitty on Pleading, 296.—Yelv. 57, and cases there cited
    
   Parker, C. J.,

delivered the opinion of the Court.

The motion in arrest of judgment cannot obtain. The declaration, although defective in form, is substantially good after verdict. A sufficient consideration for the promise is shown, and the promise is distinctly averred. The declaration is defective in not alleging notice to the defendant, that the plaintiff had performed the condition which was the consideration of the promise. But this notice must be presumed to have been proved, as it was involved in the issue, and necessary to have been proved or admitted. The defect is therefore cured by the verdict.

* Neither is this a promise, which must be proved [ * 236 J by writing according to the statute of frauds. It is not a promise to pay the debt of another; it is a promise to pay to another the debt of the plaintiff, and is, in principle, like the case of a debtor giving money to another, to pay his debt, and he neglecting to do it.

But we find there is a fatal variance between the contract proved, and that which is set forth in the declaration. The declaration states that, in consideration the plaintiff would deliver the note of the corporation to a third person, there to remain until the defendant should pay the plaintiff’s note to Janes, the defendant promised the plaintiff to save him harmless from the costs, &c. The evidence is, that the plaintiff agreed to deliver the note to a third person, and let it remain until he should return from New York; and that, in consideration, &c., the defendant promised. This is material; for, by the contract set forth, the plaintiff had no right to take the note; and by "so doing he rescinded the contract, and deprived himself of any right to damages; because the defendant did not engage to pay and take up the note, but only to indemnify the plaintiff against costs and expenses. But according to the contract, as proved, the note was to be left only until the plaintiff should return from New YorJc; and the plaintiff’s conduct in taking up the note upon his return, shows that this was the real bargain; which is entirely different from the contract stated in the declaration.

There must meretore be a new trial; and the plaintiff may have leave to amend his declaration, so as to suit it to the fact, upon paying the defendant his costs of this and the last term.

We aie all of opinion, that the expenses of the plaintiff’s journey from Riga cannot be recovered in damages. Further than this, we do not ultimitely decide, at present, upon the question of damages  