There is no subject connected with the statute of frauds that is more difficult or has given rise to greater variety of opinion than contracts of indemnity. Is a promise to indemnify or save another harmless from any liability that he may incur as the result of a transaction into which he enters at the instance of the promisor - as in the case of a promise to indemnify the promisee against loss from going bail for another - within the statute? In England,49 and by the decided weight of authority in this country,50such contracts are not within the statute. There are a number of cases, however, holding the contrary.51 It has sometimes been sought to distinguish between contracts within the statute and contracts of indemnity by saying without qualification that a promise of indemnity is not within the statute; but this is misleading. The true test is whether the promise is primary and original or whether it is merely collateral.52 Thus, if the promisor undertakes to become primarily and absolutely liable for any loss which the promisee may incur by acting upon the request of the promisor, his promise is an original one, and need not be in writing; and it is a matter of no importance that another person is also liable to the promisee.53 The promisor's obligation is not to pay such other person's debt, but his own. If, however, the main object and purpose of the promise is to answer for the debt or default of another for which that other is or becomes primarily liable, the promise is within the statute, even though it be in the form of a promise of indemnity.54 This dictinction, however, has not always been observed or correctly applied in the cases, and in some instances there have been contrary decisions on almost identical states of fact."
46 Andre v. Bodman, 13 Md. 241, 71 Am. Dec. 628 (in this case the claim against the contractor, it seems, was given up, so that there no longer existed any primary liability of a third person); Crawford v. Edison. 45 Ohio St. 239, 13 N. E. 80; Greenough v. Eichholtz (Pa. Sup.) 15 Atl. 712; Buchanan v. Moran, 62 Conn. 83, 25 Atl. 306; Craft v. Kendrick, 39 Fla. 90, 21 South. 803; Hall v. Alford, 105 Ky. 664, 49 S. W. 444; Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516; Almond v. Hart, 46 App. Div. 431, 61 N. Y. Supp. 849. And see Sext v. Geise, 80 Ga. 698, 6 S. E. 174 (where the promise was to pay for material); Bice v. Building Co., 96 Mich. 24, 55 N. W. 382. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 31, 32; Cent. Dig. §§ 47-49.
47 See Farnham v. Davis, 79 Me. 2S2, 9 Atl. 725; Greene v. Latcham, 2 Colo. App. 416, 31 Pac. 233; Hutton Bros. v. Gordon, 2 Misc. Rep. 267, 23 N. Y. Supp. 770; Wilhelm v. Voss, 118 Mich. 106, 76 N. W. 308. Where a widow, continuing her deceased husband's business, promised her husband's creditor to pay his debt if he would sell her goods on credit, the promise was held to be within the statute. Ruppe v. Peterson, 67 Mich. 437, 35 N. W. 82. And see Dirringer v. Moynihan (Com. Pl.) 10 N. Y. Supp. 540. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 31, 32; Cent. Dig. §§ 47-49.
48 Furbish v. Goodnow, 9S Mass. 296; Ames v. Foster, 106 Mass. 400, 8 Am. Rep. 343. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 33; Cent. Dig. §§ 50-53, 56.
49 Thomas v. Cook, 8 Barn. & C. 728; Reader v. Kingham, 13 C. B. (N. S.) 344 [overruling Green v. Creswell, 10 Ad. & E. 453]; Sutton v. Grey [1S94] 1 Q. B. 285; Wildes v. Dudlow, L. R. 19 Eq. Cas. 198. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 20, 21; Cent. Dig. §§ 32, S3.
50 Anderson v. Spence, 72 Ind. 315, 37 Am. Rep. 162; Aldrich v. Ames, 9 Gray (Mass.) 76; Beaman's Adm'rs v. Russel, 20 Vt. 205, 49 Am. Dec. 775; Lerch v. Gallop, 67 Cal. 595, 8 Pac. 322; Keesling v. Frazier, 119 Ind. 185, 21 N. E. 552; Smith v. Delaney, 64 Conn. 264, 29 Atl. 496, 42 Am. St. Rep. 181 and note; Jones v. Bacon. 145 N. Y. 446, 40 N. E. 216; Esch v. White, 76 Minn. 220, 78 N. W. 1114; Warren v. Abbett, 65 N. J. Law, 99, 46 Atl. 575. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 20, 21; Cent. Dig. §§ 32, S3.