¶1[After stating the facts.]—The plaintiff claims that the agreement was, on his part, a collateral undertaking, void by the statute of frauds, and that he is still entitled to recover the amount of his claim against Gardenier.
¶2The statute declares that “every special promise to answer for the debt, default or miscarriage of another person, shall be void unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged therewith.” 2 R. S. p. 140, § 2, Edm. ed.
¶3That the general principles of law on the subject of becoming security for the debt of another, are, as claimed by the plaintiff, that the agreement must not only be upon a valid consideration, but that it must be in writing and signed by the party to be charged, there can be no doubt. If the plaintiff in this case had guaranteed to Gardenier the collection of his judgment against Springstein, and Gardenier had brought an action against him to recover the amount of such debt, the principles invoked by the plaintiff would have been applicable. In the present case there is no such claim. The plaintiff is not called upon for payment of Mr. Springstein’s debt. It is not alleged that he has entered into an agreement for its direct payment; nor is any claim for payment made upon him. There is no principle of law that prevents a creditor, upon a good consideration, from making the payment of his claim dependent upon a contingency, nor is there any statute that requires an agreement to that effect to be in writing. That was the present case. The plaintiff had an accruing claim, not due in the whole, until the close of the trial in which he was engaged. Upon a valid consideration, consisting both of prospective advantage to himselfj and of hazard and expense to Gardenier, he agrees with Gardenier, while such trial is in pro*155gress, that the whole of his compensation, past and future, shall depend upon the contingency of the collection by Gardenier of his claim against Springstein. I can perceive no objection to this agreement, although not in writing; and as it is found by the referee that the Springstein debt has not been paid, and is worthless and uncollectible, it forms a defense to the plaintiff’s claim for costs.
¶4The statute now existing repeals all laws “restricting or controlling the right of a party to agree with an attorney, solicitor or counsel, for his compensation.” Code, § 303.
¶5The plaintiff was at liberty to agree with Gardenier that his compensation should be one-half only of the statutory fees, or that it should be double that amount, or that it should depend upon any contingency contemplated by the parties. He chose to make the agreement found by the referee, and must abide by its results.
¶6The judgment should be affirmed, with costs.
¶7All the judges concurred, except Postee, J., not voting.
¶8Judgment affirmed, with costs.