It often happens that what appears to be a promise to pay the debt of another is not in writing, but is nevertheless enforced by the courts on the ground that it is an original promise, and not a collateral one, and therefore not within the requirement of the statute of frauds. (t)1 The question what are the circumstances likely to affect the degree of his responsibility; and if he neglect to do so, it is at his peril. . . . The plaintiff, when he accepted the guaranty, knew that Tickell was to pay him not only the market price of the iron, but ten shillings per ton on the iron provided, in extinction of an old debt, the concealment of that fact from the knowledge of the defendant was a fraud upon him, and avoids this contract. Where by a composition deed the creditors agree to take a certain sum in full discharge of their respective debts, a secret agreement by which the debtor stipulates with one of the creditors to pay him a larger sum, is void, upon the ground that the agreement is a fraud upon the rest of the creditors. So that a contract which is a fraud upon a third person may, on that account, be void as between the parties to it. Here the contract to guarantee is void, because a fact materially affecting the nature of the obligation created by the contract was not communicated to the surety." See also Stone v. Compton, 5 Bing. N. C. 142; Franklin Bank v. Cooper, 36 Me. 179; Selser v. Brock, 3 Ohio St. 302. So it was held, in Evans v. Keeland, 9 Ala. 42, that a surety may avoid his contract for a fraudulent concealment or misrepresentation of facts by the creditor, to induce him to become surety, although the contract for which he was bound as surety, is binding on his principal. But it was held in the same case, that a misrepresentation which will have this effect, must be the false assertion of a fact, and not the expression of an opinion of the value or quality of the property sold. Thus a declaration by the vendor that the land he was selling was as good or better than other tracts to which he referred; that there was a comfortable dwelling-house, good outhouses, peach orchards, etc., on the land, is the expression of an opinion, and not the assertion of a fact, the incorrectness or falsehood of which would enable the surety to avoid his contract. So in Martin v. Striblin, 1 Speers, 23, it was held, that it is no discharge of a surety that he expected, when he signed as surety, that a third person would also sign as surety, and that such third person would receive from the principal certain books and papers as an indemnity for the suretyship; unless it is shown that the surety stipulated that the . paper should not have effect until one or both of such things were done, or that the signature of the surety was obtained by means of a fraudulent representation that such third person would sign the notes, and that the principal would place in such third person's hands his books and papers, to be by him collected and applied in payment of the debt. And in Graves v. Tucker, 10 Sm. & M. 9, it was decided, that a fraud practised by a principal debtor upon his surety, in obtaining the signature of the surety, does not discharge him from his obligation to the obligee of the bond, unless such fraud was with the knowledge or consent of the obligee. - So, where the surety of a note given for property purchased at an administrators sale when requested by the principal to sign it, was told by the payee that his signature was only wanted as a form to comply with the order of the ordinary, it was held, that no fraud was thereby practised on the surety which could avoid the note as to him. Smyley v. Head, 2 Rich. L. 590. See also Rail-ton v. Mathews, 10 CI. & F. 936, and Hamilton v. Watson, 12 id. 109; North British Ins. Co. v. Lloyd, 28 £. L. & E. 456; s. c. 10 Exch. 523.

(t) Thus, in Allen v. Thompson, 10 N.

1 Thus the holder of property charged with the payment of a debt is liable on his promise to pay the creditor, whether in writing or not, Townsend v. Long, 77 Penn. St.

least - as a collateral undertaking, and therefore as within the statute of frauds. (w)1 The entry in the books of the seller is often of great importance in determining whether a promise be original or collateral. Being made by the seller, it is of course of far greater weight when against him than when it sustains his claim. Suppose that A promises to pay B, if B will sell goods which C is to receive. The question may occur whether they were sold to A for C's benefit, or to C on the guaranty of A. If, on examination of the books of B, it appears that at the time of the sale he charged the goods to C, as sold to him, it would be almost decisive against B's claim on A as the original purchaser. But if it was found that he had charged the goods to A, it would still be open to A to show that he had no right to do so. It often happens that a seller makes such a charge with a view of enlarging or asserting his rights, on the supposition that this charge will suffice to fix the liability on the person against whom it is made. But it is obvious that such an entry can have no effect, unless the circumstances of the sale show it to be in conformity with the true rights and obligations of the party. Nor would an entry by the seller to one party be absolutely conclusive against his right to claim payment of another as the original purchaser, if he were able to show clearly that the entry was made by mistake to one who was not the buyer, and without any purpose of discharging him who was the buyer. (x)

Whether a contract is collateral or original, may be a question of construction, and then it is for the court; but it is often regarded as a question of fact, and then it is for the jury. (y)

(w) Manrow v. Durham, 3 Hill (N. Y.), 584; 8. c. 2 Comst. 533; Hall v. Farmer, 5 Denio, 484; s. c. 2 Comst. 557; Weed v. Clark, 4 Sandf. 31; Spicer v. Norton, 13 Barb. 542; Brewster v. Silence, 11 Barb. 144; a. c. 4 Seld. 207.

(x) In Matthews v. Milton, 4 Yerg. 576, it appeared that A and B being in the plaintiffs' store together, A told the plaintiffs he would pay for any article B might take up, and B thereupon purchased several articles, which the plaintiffs charged to A and B. Held, that the promise of A was within the statute of frauds, as being a promise to pay the debt of B. Aliter, if the articles had been charged to A alone, for then it would not have been B's debt. See also Gardiner v. Hopkins, 5 Wend. 23; Graham v. O'Niel, 2 Hall, 474; Porter v. Langhorn, 2 Bibb, 63; Flanders v. Crolius, 1 Duer, 206. But where A requested B to sell goods to C, promising by parol to indorse C's note for the price, it was held, that this promise was within the statute of frauds, and therefore void. Carville v. Crane, 5 Hill (N. Y.), 483. See also Conolly v. Kettlewell, 1 Gill, 260; Hopkins v. Richardson, 9 Gratt. 485; Cutler v. Hinton, 6 Rand. (Va.) 509; Leland v. Creyon, 1 McCord, 100.

(y) See Sinclair v. Richardson, 12 Vt. 33; Flanders v. Crolius, 1 Duer, 206.

1 A written guaranty on a negotiable promissory note, though referring to the note, and made at the same time, and the ground of credit to the maker, is void within the

* Sales by a factor, with a guaranty of the price from the factor to the owner, are common in all commercial countries. In Europe they are commonly called "del credere" contracts; and the commission charged by the factor, and intended to cover not only his services in selling, but his risk in insuring the payments, is called a "del credere commission," as we have remarked before; but this phrase is seldom used here, although this kind of contract is very common. It is, in one sense, a promise to pay the debt of another; and it has been said by English courts that it must be in writing. (z) We think, however, that this doctrine would not be held in England now, (a) and so far as the question has been adjudicated in this country, it has been held, as we have already stated, to be an original promise, and therefore enforceable at law, although not in writing. (b) The promisor in fact receives a direct consideration for this precise promise from the promisee.