Volume 98 — New Hampshire Reports

An exception to the denial of a motion for a directed verdict raises the question of whether the evidence was sufficient to justify the verdict rendered. Where the defendant contractor to insure the furnishing of labor and material to complete construction of a plant entered into an original undertaking with the plaintiff, who was under contract with defendant's insolvent subcontractor, to make payment therefor direct to the plaintiff such undertaking was not within the statute of frauds. The plaintiff was not precluded from enforcing such undertaking by the fact that there was no novation discharging his immediate subcontractor from its obligation since the defendant's promise was made to assure plaintiff's performance. In such case, the defendant waived any right he may have had to require this labor and materials to be furnished by the plaintiff by virtue of the plaintiff's contract with the defendant's insolvent subcontractor at the latter's expense, and the furnishing of such labor and material by the plaintiff in response to defendant's promise to pay, constituted sufficient consideration for defendant's undertaking to pay the plaintiff directly.