With reference to the alleged verbal promise of November 9th the court charged as follows: "It is the law of this state, derived from ancient law in the statute of frauds, as it is called, that a promise made to answer for the debt, default, or miscarriage of another party is void, cannot be enforced, except it conform to the statute, be in writing, and express a consideration. Therefore this promise, or alleged promise, made on the 9th of November, gave the plaintiffs no right, if it was a mere guaranty,-a mere promise to answer for the debt of another. You will ascertain, gentlemen, whether any such promise was made in fact. Mr. Hoogstraat and Mr. Joyce testified that after their meeting in the office of the Fair Lumber Company, and while they were leaving the building, on some preliminary remarks by them that they would have to stop shipments, Mr. Choate said we would 'bust the boys,' or 'bust the Fair Lumber Company,' and they said, 'If we do not do it, it will bust us;' and that Mr. Choate then said, in substance, 'I will go good for the lumber they are shipping if you will let the shipments go on.' This was denied by the defendant. The plaintiffs must first establish by the preponderance of the testimony that such a promise was made. I think the only additional testimony was that of the bookkeeper, who was in the office only, so that substantially upon that point it is the testimony of Mr. Hoogstraat and Mr. Joyce on the one side and Mr. Choate on the other. Now the fact that there are two witnesses on the one side and but one on the other is not of itself necessarily the preponderance of the testimony. You have the right to consider the appearance of the witnesses, the reasonableness of the story, and all the circumstances, and determine for yourselves on the testimony which is the more credible testimony; and wherever you find the preponderance to be, you should determine accordingly by your verdict. If you find that the promise was not made, then, of course, you have nothing further to do with that question, and reject it from consideration. But, if you find the promise was made, then you must ascertain whether it is a promise within the prohibition of this statute of frauds; whether it is a promise to guaranty the amount,-to answer for the debt or default of another; and, if it is clearly such a promise, then it is of no effect, and entitled to no consideration. You are, however, to consider all the circumstances in this case for the purpose of ascertaining whether or not it is such a promise, for you are further instructed, gentlemen, that if you find from the preponderance of the evidence that the plaintiffs intended at the time of that promise on the 9th of November to prevent the Fair Lumber Company from shipping out lumber, and so informed the defendant, and then, in order to induce the plaintiffs to permit such shipments, and by reason of an interest in having the shipments go on, he promised to go good' for what the Fair Lumber Company were shipping; and you further believe that the plaintiffs understood the promise to be so intended and made because of an interest, and not gratuitously, and that the plaintiffs, relying on such promise, took no further action to prevent such shipments, but permitted the same to go on, such promise by the defendant, under the undisputed facts in this case of his relations to the Oshkosh Log & Lumber Company and the Fair Lumber Company, would be an original undertaking on his part, and valid in the law as an original promise, and not a promise to answer for the debt, default, or miscarriage of another." The court, upon this question, further instructed the jury: "The fact that Mr. Choate had an interest in the lumber, or in the dealings of the Fair Lumber Company, through a bill of sale or chattel mortgage, whether it was actually put to use or not, and the fact that he was interested as a creditor to a large amount, would make a foundation for such a promise as an original undertaking; but these facts alone would not make a promise good, because it must be understood by these plaintiff's in taking the promise that it was so made because of an interest he had. They must understand it is not made simply out of a desire to help the Fair Lumber Company. If so made, or if so understood by the parties, that Mr. Choate had an actual interest in obtaining the shipments to be made, and that he made the promise on the strength of that, and for the purpose of causing the shipments to be made, then it is an original undertaking, and does not come within the statute. * That is the test upon which you will determine whether it is an original undertaking or a mere promise to answer

** **

for the debt of another." With respect to the claim under the letter of November 13th and its acceptance, the court charged the jury as follows: "You are instructed that this letter contained a sufficient statement of the consideration within the requirements of law to make it a valid promise; and if you find that the plaintiffs intended to accept and did accept the promise contained in this letter by their failure to forbid shipments in reliance thereon, and that the defendant understood and had reason to understand from the conduct of the plaintiffs that such promise was so accepted and acted upon by them for the shipments of factory plank from November 14th to November 20th, inclusive, you should find for the plaintiffs for the amount so shipped. In determining this question of acceptance, you should take into consideration the conduct of the parties throughout. You should take into consideration, for such value as you may find it to afford, the fact that the plaintiffs, immediately after the receipt of the letter, or soon after the receipt of the letter, went with their attorney to see Mr. Fair, the president of the Fair Lumber Company, and followed that up by going to Oshkosh, and there entered into the agreement of November 20th, by which the defendant was thereafter to take charge of the business of the Fair Lumber Company. Consider all those circumstances in connection with the situation of the plaintiffs; that meantime they had made no change in their conduct in relation to the shipments of lumber, but permitted the shipments to go on; and ascertain what was the real understanding of the parties,-whether the letter of November 13th was accepted or not, and so understood by both parties. Unless it was accepted, and so understood, or unless the parties had reason to understand that it was accepted, then it is of no avail to the plaintiffs in this case. There must be an acceptance, as well as a making of the promise." To reverse a verdict in favor of the plaintiffs below, this writ of error is sued out, the questions considered being properly assigned for error.

A. E. Thompson, for plaintiff in error.

W. H. Timlin, for defendants in error.

Before WOODS, JENKINS, and GROSSCUP, Circuit Judges.

JENKINS, Circuit Judge, after the foregoing statement, delivered the opinion of the court.

We are of opinion that the court below properly excluded the evidence offered for the purpose of showing that the debt of the Fair Lumber Company to the defendants in error had been fully paid, and this because no plea of payment had been made. The plea was one of accord and satisfaction, that the defendants in error in May, 1895, in final settlement of the agreement of November 20, 1894, received from the plaintiff in error and accepted $19,232.70 worth of lumber in settlement and payment of their claim and demand against the Fair Lumber Company. The evidence failed to sustain this plea, the evidence of Mr. Choate showing no accord and satisfaction, but that the lumber remaining unsold in May, 1895, was merely turned over to the defendants in error; nothing being said about price, or of its being in satisfaction of any claim. The attempt was made by an estimate of the value of the lumber so turned over and by means of a general accounting to show that the debt of the Fair Lumber Company to the defendants in error had been paid, but, in the absence of any plea to that effect, the evidence was clearly improper. Such a plea should be specific as to the amount paid. Shipman v. State, 43 Wis. 381. Here the receiving of the lumber from Choate, the trustee, because he refused to further continue in the sale of it, with no agreement as to its value, or the application of its value to the debt of the Fair Lumber Company, did not make

the value of it payment to that amount upon the debt of the Fair Lumber Company. Only when the defendants in error should dispose of that lumber could they be charged therewith, and then only the sale being fair, for the amount received. So, also, we think the court correct in charging the jury that the plaintiff in error was liable for the sum of $243.59, the lumber sold to the Oshkosh Log & Lumber Company, of which he was president. This amount had not been paid to Mr. Choate under some claim of the lumber company, as he stated, that it had some offset or defense as against the defendants in error or the Fair Lumber Company. The lumber was placed in the possession of Mr. Choate as trustee for the defendants in error. He obligated himself to turn over to them the proceeds. He was a trustee, and could not sell lumber to a company of which he was president, and assert any sort of a claim on the part of that company against the defendants in error or the Fair Lumber Company.

With regard to the question of the acceptance of the agreement of November 13, 1894, we think the matter was properly and fairly submitted to the jury. The question of acceptance is one of fact to be determined in the light of the surrounding circumstances; and, having been properly submitted, we are concluded by the verdict of the jury. We cannot doubt that the agreement expresses a consideration. It is, in legal effect, that the plaintiff in error would become responsible for the $6.50 per 1,000 feet, the amount of the claim of the defendants in error on factory plank, if they would allow Mr. Fair to ship lumber to fill the orders he then had. Assuming this letter to be a collateral agreement to answer for the debt of another, we think there is a sufficient statement of consideration to meet the requirements of the statute of frauds.

The question of most difficulty in this case arises upon the oral promise of November 9, 1894, found by the jury to have been made, to the effect that, if the defendants in error would permit the Fair Lumber Company to continue shipping, he (Choate) would, until he wrote them, as he promised to do, "go good for what they are shipping." The validity of this agreement depends upon the question whether it is a collateral agreement to answer for the debt of another, or whether it is an original agreement upon a new and sufficient consideration; the extinguishment in whole or in part of the original debt by the performance of the new agreement being merely an incident. Much subtlety has been indulged by the courts from an early date in the construction placed upon the statute of frauds. It would be difficult, if not impossible, to reconcile the various decisions of the courts. It is, perhaps, unfortunate that we have gotten away from the strict letter of the statute. We are glad to note the present tendency of the courts to get more in harmony with the spirit and the purpose of the law. It would serve no useful purpose to enter upon a review of the many and possibly discordant decisions. It is sufficient to state the rule, as we understand it to be, now held by the supreme court of the state of Wisconsin, whose law we are considering, and of other states which are in accord with that holding, and of the supreme court of the United States. In Hoile v.

Bailey, 58 Wis. 434, 17 N. W. 322, and in Weisel v. Spence, 59 Wis. 301, 18 N. W. 165, the court reviews the previous decisions in that state, and furnishes, as a test to determine whether a promise is original or collateral, the following rule: "In all these cases founded on a new and original consideration of benefit to the defendant or harm to the plaintiff, moving to the party making the promise, either from the plaintiff or original debtor, the subsisting liability of the original debtor is no objection to a recovery;" and "where the party promising has for his object some benefit and advantage accruing to himself, and on that consideration makes the promise, this distinguishes the case of an original undertaking from one within the statute." The latter rule is in substance declared by the supreme court of Massachusetts in Curtis v. Brown, 5 Cush. 491. "It is not enough," says the court, "that the plaintiff has relinquished an advantage or given up a lien in consequence of the defendant's promise, if that advantage has not also inured to the benefit of the defendant, so as, in effect, to make it a purchase by the defendant of the plaintiff. Where the plaintiff, in consideration of the promise, has relinquished some lien, benefit, or advantage for securing or recovering his debt, and where, by means of such relinquishment, the same interest or advantage has inured to the benefit of the defendant," an oral promise is binding. "In such cases, although the result is that the payment of the debt of the third person is effected, it is so incidentally and indirectly; and the substance of the contract is the purchase by the defendant of the plaintiff of the lien, right, or benefit in question." In White v. Rintoul, 108 N. Y. 222, 15 N. E. 318, the court states that the rule in Leonard v. Vredenburgh, 8 Johns. 29, that a new and original consideration moving between parties to the new promise took it out of the stat ute, was "dangerously broad, and capable of grave misapprehension," and that the rule of the state of New York now was that, "when the primary debt subsists, and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor." In Emerson v. Slater, 22 How. 28, 16 L. Ed. 360, the supreme court of the United States declared that, "whenever the main purpose and object of the promise is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability." And in Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826, the court observes that "there is a marked difference between a promise which, without any interest in the subject-matter of the promise in the promisor, is purely collateral to the obligation of a third party, and that which, though operating upon the debt of third party, is also and mainly for the benefit of the promisor." We need not inquire whether these cases in the supreme court of the United States are fully in accord

with the advanced rule declared by the supreme court of Wisconsin and Massachusetts and the court of appeals of the state of New York; nor need we suggest that logically and rationally damage to the promisee should be as effective as benefit to the promisor in determining whether a promise is original or collateral. It is enough to say that the question was submitted to the jury by the court below under the more advanced rule referred to, and certainly the plaintiff in error has no ground for complaint. The court distinctly told the jury that the facts that Choate had an interest in the lumber through a bill of sale, and that he was interested as a creditor, would not alone make his promise good, "because it must be understood by these plaintiffs in taking the promise that it was so made because of an interest he had. They must understand that it is not made simply out of a desire to help the Fair Lumber Company. If so made, or if so understood by the parties, that Mr. Choate had an actual interest in obtaining the shipments to be made, and that he made the promise on the strength of that, and for the purpose of causing the shipments to be made, then it is an original undertaking, and does not come within the statute." We are inclined to the opinion that the court went beyond the rule in declaring that the promisee must understand that the promise was not made simply out of a desire to help the debtor. We read no such requirement in the rule as stated. The fact must exist that the promise is made with a view to benefit the promisor, and because of his interest in the subject-matter, but we do not find that it is essential that the promisee should know of the interest and object of the promisor if the interest and purpose in fact existed; but this error-if error there was-was favorable to the plaintiff in error, and he cannot be heard to complain of it.

We cannot say, as a matter of law, that this promise was collateral. The situation was this: The defendants in error were in possession of the stock of lumber on account of which the Fair Lumber Company had paid $4.50 per 1,000 feet, and owed under their contract $6.50 per 1,000 feet in addition. That debt was due. The defendants in error could not be compelled to part with possession of that property until the whole debt was discharged, and they had refused to make delivery because of nonpayment of the debt. At this time the company of which Mr. Choate was president had a bill of sale of this lumber from the Fair Lumber Company. It had not been placed on record, and therefore was not effective as against a third party, but it was potential as between the Fair Lumber Company and Mr. Choate and his lumber company. He or his company was the legal owner of this lumber, subject to the claim and possessory lien of the defendants in error, and, as against the Fair Lumber Company, had the legal title to the lumber, and the right of possession for the purpose for which it was transferred. Notwithstanding the lumber had been sold to the Williamson & Libbey Company, and the bill of sale to Mr. Choate's company was ineffectual as against that purchase, still, as against the Fair Lumber Company, it gave Mr. Choate's company the right to the possession of the proceeds of the sale. Mr. Choate was also a member of the firm of Bray &