There was no error in the trial of this action.
The defendants contended at the trial that the agreement of the defendant, J. W. Walker, with the plaintiff, as alleged in the petition, and as shown by the evidence offered by the plaintiff, is a special promise by the defendant to answer the debt, default, or miscarriage of the Merchants and Manufacturers Bank, and that as such agreement was not in writing, or evidenced by a memorandum, or note, in writing, signed by the defendant, or by some person thereunto lawfully authorized by him, the action to charge the defendant upon such special promise cannot be maintained. In support of this contention, the defendants relied on C. S., 987.
The contentions of the defendants were presented (1) by their demurrer ore tenus to the petition; (2) by their objections to evidence offered by plaintiff; and (3) by their motions for judgment as of non-suit at the close of all the evidence. The defendants duly excepted to the refusal of the trial court to sustain their contentions, and on their appeal to this Court rely on these exceptions.
The promise of the defendant, J. W. Walker, to the plaintiff, as alleged in the petition, and as shown by evidence offered by the plaintiff at the trial, was supported by a new and independent consideration. The promise was accepted by the plaintiff, who thereafter made no demand on the bank for her money. The agreement was an original undertaking by the defendant, in his own interest and not in the interest of the bank. For these reasons, the agreement is not within the provisions of C. S., 987. See Mercantile Company v. Bryant, 186 N. C., 551, 120 S. E., 200. There was no error in the refusal of the trial court to sustain defendant’s demurrer ore tenus to the petition, or their objections to the evidence offered by the plaintiff, at the trial. The evidence was properly submitted to the jury, under instructions which are free of error. The judgment is affirmed.
No error.