Page:North Dakota Reports (vol. 3).pdf/225

 the antecedent obligation, or from another person.” In this case the antecedent obligation was not released, as respondents subsequently contemplated an action against Ober. Neither was there a release of property from any levy, as no actual levy was ever made. If the case falls within the statute, it is by reason of the final provision,—“or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation or from another person.” This statutory provision, it will be noticed, excludes a portion of the broad consideration “of benefit or harm moving between the newly contracted parties,” as laid down by Chief Justice Kent in Leonard v. Vredenburg, 8 Johns. 29, and the cases that have followed that decision, and confines it to that which is beneficial to the promisor, but without regard to the source from which the benefit moves. The learned trial court placed the case entirely upon this promise, and the charge to the jury was full, clear, and very fair to appellant. The jury could not have returned a verdict for respondents without disregarding the court's instructions, unless they found the promise was made as alleged, and based upon a consideration beneficial to the promisor. It is earnestly contended that the evidence docs not warrant a finding that any such promise was made. The court told the jury plainly that, if appellant incurred any liability to respondents, “it was by reason of some contract made on April 5th, 1885.” As to what occurred on that day, Mr. McMillan testified: “Mr. Aitchison wanted to engage me and my wife, and I told him we would not engage with any person until we got a settlement for the pre- vious year. He said he had everything in that place in black and white, in his own name, but that Ober was to have an interest, but if we would stay he would pay the wages before Ober should have a cent on the farm.” This, clearly, was a conditional promise only, and before any recovery could be had thereon the existence of the specified conditions must be alleged and proven. Mrs McMillan testified as to the same transaction: “I was present during the conversation between my husband and Mr. Aitchison.