32 Cowenhoven v. Howell, 36 N. J. L. 323, 327, citing: Goodman v. Chase, 1 B. & Ald. 297; Fitsgerald v. Dressier, 7 C. B. (N. S.) 374; Kebey v. Bibbs, 13 Ohio St., 340; Butcher v. Steuart, such a case whether the promisor engaged absolutely to pay or promised to pay if the primary debtor failed to do so. Though, as has been said, no question of the Statute of Frauds can arise where a promise is made by one who purports to make himself a surety if there is no primary obligation, yet in such a case for another reason the creditor may find himself unable to enforce a contract against the promisor. In a leading English case 33 Willes, J., said: "The leading case upon the application of the Statute of Frauds has generally been considered to be Birkmyr v. Darnell,34 "and in the note to Mr. Evans's edition of Salkeld's Reports it is stated, that,' from all the authorities it appears, conformably to the doctrine in this case, that if the person for whose use the goods are furnished is liable at all, any other person's promise is void, except in writing.' I think that may be well modified:' Or if his liability is made the foundation of a contract between the plaintiff and the defendant, and that liability fails, the promise is void:' so as to include the case which I put to Mr. Charles of persons wrongly supposing that a third person was liable, and entering into a contract on that supposition. If, in such a case, it turned out that the third person was not liable at all, the contract would fail, because there would be a failure of that which the parties intentionally made the foundation of the contract. The lex contractus itself would make an end of the claim, and not the application of the Statute of Frauds, whether the contract was in writing or not, and whether signed or not."
It is not, however, to be supposed that the failure of liability on the part of any principal debtor necessarily involves the conclusion that the promise of one who has promised to be responsible collaterally also fails. The latter may have made his promise to pay to meet precisely the contingency that perhaps no one else would be liable, and if the terms of the promise are wide enough to cover the situation which has arisen, evidence of mutual mistake would need to be clear in order to excuse liability.35
11 H. ft W. 867; Maiden Brittannia Co. v. Zingsen, 48 N. Y. 247, 8 Am. Rep. 549. See dm Mallory v. Oillett, 21 N. Y. 412, 424, 433; Cooper v. Chambers, 4 Dev. L. 261, 25 Am. Deo. 710.
33 Lakeman v. Mountstephen, L. R. 7 Q. B. 196, aff'd, tub nom. Mount-Stephen v. Lakeman, L. R. 7 H, L.17.
341 Salk. 27 (s. c. Buckmyr v. Darnall, 2 Ld. Ray. 1086).
Sec. 465. No promise which differs in scope from that of another obligor is within the statute. In order to be within the terms of the statute, the special promise must be to fulfil all or part of the obligation of the debtor.36 Otherwise it will not be within the statute, even though having for its object to render it more certain that the original debt will be paid. Thus a promise to notify the creditor of a debt owing to the principal debtor, so that the creditor might garnishee it, is not within the statute.37 Nor is a promise to execute a bail bond,38 or to redeliver to an officer on demand property of a third person which had been attached,39 or to guarantee dividends of a corporation if the promisee will subscribe for stock,40 or to pay the value of stock given by a corporation as the purchase price of land, if the corporation failed to pay dividends,41 or that a debtor of the promisee is legally liable,42 or a promise to induce a third person to sign a guaranty;43 and where property is actually transferred an agreement by the transferror, that it shall be applied by the transferee in payment of a debt due the latter from a third person may be oral.44 The most important and difficult application of the principle that the performance for which, either absolutely or conditionally, the surety is bound must be identical with that for which the principal is bound is where the new promisor engages to make a payment or render a performance (for which it is supposed that another person perhaps is, or may become, liable) whether such liability exist or not.
35 Such seem to have been the facts in Lokeman v. Mountstephen, L. R. 7H.L 17. So in Kimball v. Newell, 7 Hill, 116, a covenant by which the defendant undertook to become surety for the faithful performance of B's covenant to pay rent, made the defendant liable though B'e covenant was void on account of coverture.
36 A guaranty of part of a debt is within the statute. Bennighoff v. Robbing, 54 Mont. 66, 166 Pac. 687.
37 Towne v. Grover, 9 Pick. 306.
38Jarmain v. Alger, 2 C. & P. 249.
39 Marion v. Faxon, 20 Conn. 486.
40 Moorehouse v. Crangle, 36 Oh. St. 130, 38 Am. Rep. 564; Jepherson v. Hunt, 2 Allen, 417.
41 Clement v. Howe, 33 S. Dak. 499, 146 N. W. 700.
42 E. g., a promise by the seller of a promissory note that the maker is liable. King v. Summitt, 73 Ind. 312, 38 Am. Rep. 14S.
43 Bushell v. Beavan, 1 Bing, n. c. 103. This case is criticised in Car-ville v. Crane, 5 Hill, 483, 485, but
44 Johnson v. Bank of Sun Prairie, 155 Wis. 603, 145 N. W. 178.
A promise by 8 that unless A shall pay $100 the promisor B will do so, is not in terms identical in meaning with a promise by B that unless A shall pay whatever he owes (or whatever he owes not exceeding one hundred dollars) the promisor, B, will do so; even though in both cases A's debt is $100; since in the former case B undertakes to pay whether A is liable or not, in the latter he promises only to pay if A is liable. The latter promise is clearly a guaranty and within the statute; the former may not be. At least where in fact A is not liable, the new promisor is undertaking an obligation of his own which has no counterpart in any previous debt.45 But unless the scope of the statute is to be determined by the merest formality of words, it should be equally clear that if the purpose of a new promise is to assure a performance which is supposed by the parties to be, and which in fact is identical with the debt of another and is made to ensure the discharge of that debt, the new promise is none the less within the statute because in terms it is a promise to pay a fixed amount which it is supposed by the parties that the original debtor owes, or will owe, and which he in fact does owe, rather in terms to pay whatever debt the principal debtor owes.46 The most troublesome question is the intermediate one where the promise is in terms, or by proper construction, to pay a certain sum whether A owes it or not and, in fact, the parties have distinctly in mind the possibility that A may not be liable, but A does owe the sum promised.47