
    Johnson v. Clark.
    Indebitatus assumpsit does not lie on a collateral undertaking.
    In assumpsit .on a collateral- undertaking, the -declaration should sh'ow the ■consideration, of'the promise and .the circumstances under ’which it w-as made.
    
      
      Thursday, June 3.
    ERROR to the Marion Circuit Court.
   Sullivan, J.

The facts of this case, as disclosed by the record, were, that one Pogue and the defendant Clark, by a written contract dated the 5th of November, 1838, in consideration of a horse of the value of 75 dollars delivered to them by the plaintiff Johnson, undertook to perform certain repairs on his dwelling-house, &c. The work was to be completed on or before the 1st of February, 1839. Previously to the expiration of the time for the performance of the work, viz. on the 30th of January, 1839, a new contract in reference to the same work, by which the repairs to be done were materially changed, was entered into between Johnson and Pogue. To the latter contract Clark was not a party; but previously to its execution, Clark wrote a letter to Johnson in which he promised u that if Johnson and Pogue should make a new contract, he would stand good for the performance of 75 dollars’ worth of said work, and for which he was already bound in an article with said Pogue bearing date the 5th of November, 1838.” Pogue failed to perform, and Johnson commenced the present suit.

The declaration contains three counts in indebitatus assumpsit. The first is for a horse sold and delivered to one John Pogue at the special instance and request of the defendant; the second for a horse sold and delivered to the defendant; and the third for a horse sold and delivered to defendant and one John Pogue, also for goods sold and delivered, money had and received, &c. Plea, non assumpsit. Verdict and judgment for the defendant.

The only question is, whether Johnson can recover from Clark in this form of action? We are of opinion that he cannot. The contract of the 5th of November, 1838, was annulled by the subsequent contract of the 30th of January. To the latter contract Clark was not a party. By his letter of the 21st of January, he undertook to guaranty the performance of 75 dollars’ worth of work by Pogue. On the failure of Pogue to do the work, a right of action accrued to Johnson against Clark, but only on his special agreement. Clark being collaterally liable only, the declaration should show as well the consideration of his promise, as the special circumstances under which it was made.

G. Fletcher, 0. Butler, and S. Fancies, for the plaintiff.

II. Brown, for the defendant.

Per Curiam.

The judgment is affirmed with costs.  