said amount, and that, as a consideration for said promise, respondents agreed to, and did, enter into the employment of appellant, and did perform valuable services for him, and which were bencficial to him. There is a further allegation that during the year 1885, and, as appears from the evidence, some months subsequent to April 5th, the appellant “had in his possession and control, and was indebted to said Ober, in, a certain large sum of money,” and that respondents were about to commence an action against said Ober, and attach the money and property in appellant's hands, and that appellant further promised and agreed that if respondents would not commence such proceedings, and attach said property in his hands, he would pay respondents the debt owing them from said Ober, and that, in consideration of such promise, respondents did not take the legal steps contemplated. The answer was, in substance, a denial. As we read the instructions, the jury were plainly told that respondents could recover nothing by reason of this latter promise, set forth in the complaint; and, as neither party complains of such instruction, it must stand as the law of the case, and our investigations are confined to the first promise alleged. As this promise rests in parol, only, it is admitted that, if it were a collateral promise of guaranty, it was void, under the statute or frauds. But it is claimed that it was an original undertaking based upon a benefit accruing directly to the promisor.
Section 4277, Comp. Laws, reads: “A promise to answer for the obligations of another in any of the following cases is deemed an original obligation of the promisor, and need not be in writing:
- * * (3) Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party
receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor, or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprisonment, under an execution on a judgment obtained upon the antecedent obligation, or upon a consideration beneficial to the promisor, whether moving from either party to
