68 See supra, Sec. 472.
69 Confusion must not be caused by the fact that the obligation may be conditional on default by the principal debtor to the holder of the obligation. If the sureties are accommodation in-dorsers of a note, for instance, their liability is thus conditional; if they are accommodation makers, it is not. But, the question concerning the Statute of Frauds relates, not to a condition in the new promise of indemnity that it shall become effective only on default of the principal debtor's obligation to the creditor, but to the existence of any condition in the new promise of indemnity that it shall become effective only on the principal debtor's default in his duty to indemnify his
70The promise was held not within the statute in Thomas v. Cook, 8 B. & C. 728, but was held within the statute in Green v. Cresawell, 10 A. & E. 463, where the defendant had promised the plaintiff indemnity if the plaintiff test is has already been seen;71 but the weight of authority in the United States supports the English decisions on promises to indemnify sureties, holding such promises not within the statute,72 though not adopting generally the same test of form.
71Supra, Sec. 465.
72Godden v. Hereon, 42 Ala. 370. [but see Brown v. Adams, 1 Stew. 51; Posten v. Clem (Ala.), 78 So. 883, 1 A. L. R. 381]; Reed v. Holcomb, 31 Conn. 360; Smith v. Delaney, 64 Conn. 264, 29 Atl. 496; McCormick p. Boy-Ian, 83 Conn. 686, 78 Atl. 335, Ann. Cos. 1912 A. 882; Wolthausen v. Trimpert (Conn.), 106 Atl. 687 (but see Clement's App., 52 Conn. 464);
Jones p. Shorter, 1 Ga. 294,44 Am. Deo. 649; Resseter v. Waterman, 151 111. 169 (but see Brand p. Whelan, 18 111. App. 186); Horn p. Bray, 51 Ind. 555, 19 Am. Rep. 742; Anderson v. Spence, 72 Ind. 315, 37 Am. Rep. 162; Overruling Brush v. Carpenter, 6 Ind. 78); Keealing v. Frazier, 119 Ind. 185, 21 N. £. 552; Mills v. Brown, 11 Iowa, 314; Patton v. Mills, 21 Kans. 163; Dunn v. West, 5 B. Mon. 376; Lucas v. Chamberlain, 8 B. Mon. 276; George v. Hoskins, 17 Ey. L. Rep. 63, 30 S. W. 406; Smith p. Sayward, 5 Me. 504; Alger p. Scoville, 1 Gray, 391; Aldrich v. Ames, 9 Gray, 76; Hawea p. Murphy, 191 Mass. 469, 78 N. E 109; Boyer p. Soules, 105 Mich. 31, 62 N. W. 1000 (but Bee First Bank p. Bennett, 33 Mich. 520); Fidelity Co. v. Lawlor, 64 Minn. 144, 66 N. W. 143; Noyes p. Ostrom, 113 Minn. Ill, 129 N. W. 142; Minick v. Huff, 41 Neb. 516, 59 N. W. 795; Holmes p. Knights, 10 N. H. 175; Demeritt p. Bickford, 58 N. H. 523; Apgar v. ITiler, 24 N. J. L. 812; Cortel-you p. Hoagland, 40 N. J. Eq. 1; Wilson v. Hendee, 74 N. J. L. 640,66 Atl. 413; Chapin p. Merrill, 4 Wend. 657; Barry v. Ransom, 12 N. Y. 462; Sanders v. Gillespie, 59 N. V. 250; Tighe p. Morrison, 116 N. Y. 263, 22 N. E. 164, 5 L. R. A. 617 (overruling Kingsley p. Balcome, 4 Barb. 131); Jones p. Bacon, 145 M. Y. 446, 40 N. E. 216; Rose p. Wollenberg, 31 Oreg. 269, 44 Pa. 382, 39 L. R. A. 378; Ferrell v. Millican (Tex. Civ. App.), 156 S. W. 230; Al-phin p. Lowman, 115 Va. 441, 79 S. E, 1029; Handsaker p. Pedersen, 71 Wash. 218,128 Pac 230; Shook v. Van-mater, 22 Wis. 532; Vogel p. Melms, 31 Wis. 306, 11 Am. Rep. 608; Barth v. Grof, 101 Wis. 27, 76 N. W. 1100.
The reasoning is generally very unsatisfactory. Frequently the courts do not even seem aware what obligation it is for which the indemnitor is asserted, to have become surety. It is often apparently supposed that the contention is that the indemnitor has undertaken to answer for the obligation upon which the indemnified surety puts his name73 Again it sometimes seems to be supposed that because the obligation of the principal debtor to save harmless or indemnify his surety is generally merely implied in fact or imposed by law rather than undertaken in express terms that a promise to become in effect surety for the performance of this obligation is not within the statute.74 But as has been seen, a promise to answer for default in any kind of obligation is within the statute.75 There can be no doubt, also, that the case is within the mischief which the statute seeks to remedy, if the purpose of the statute is what has been generally supposed.76 The promisor, here, is receiving nothing of advantage to himself. The consideration enures to the benefit of the principal debtor and, in return for that consideration, the promisor undertakes to do something which the principal debtor ought to do himself. The most plausible suggestion for supporting the numerous decisions holding such a promise not within the statute is that the scope of the new promise is wider than that of the principal debtor's, in that the new promisor undertakes to indemnify the surety at all events whether the principal debtor is, or is not, bound to make such indemnity himself. But in the ordinary case, the principal debtor is liable and there is no reason to suppose that the parties did not assume the truth to be, what it in fact is, that the obligations are co-extensive.77 The promisee requires the new promise of indemnity, not because it is different in scope from that of the original debtor, but because the promisee fears that the debtor will not, or cannot, fulfil the obligation he has undertaken. A very respectable minority of the decisions hold such promises to be within the statute.78
73So able a writer as Bishop, Laws of Contracts, Sec. 1216, falls into this error. He says - "On principle, this question is determinable by a very simple test. You promise James that, if he puts his name, as surety for John, on a bond running to Richard, you will hold him harmless; he does it; John makes default. All agree that, in this case, John is the 'another' of the statute. But Richard, to whom the debt is due, cannot sue you; John failing, his claim over is alone on James. Aside from difficulties as to the form of the action, your liability begins only when James has paid him. There remains now for adjustment only what you had promised to James, who is not 'another,' but the promisee himself, - the debt is yours to him, and there is nothing going out from you to any third person. Hence, the case is not within the statute," and this passage is quoted as decisive in Reseeter v. Waterman, 151 111. 169, 37 N. E. 875.
Of course it is true, as Bishop says, that "all agree that John is the 'another' of the statute," but the obligation of John, which is in question, is not John's obligation to Richard but his obligation to James, his surety, to save him harmless.
74 Thus in Resseter v. Waterman, 151 111. 169, 37 N. E. 875, the court says - "It is clear that Severson [the principal debtor), at no time made default in not indemnifying Resseter, for he was under no contract obligation to indemnify him. Not having promised indemnity, Severson could not make default in any promise or undertaking with Resseter."
75 See supra, Sec. 453.
76See supra, Sec. 452.