45 In Read v. Nash, 1 Wilson, 305, the plaintiff's testator brought an action for assault against J, and the defendant being present promised the testator, if he would not proceed to trial, to pay him 50l and costs; whereupon the testator withdrew his record. The promise'was held not within the statute because it did not appear that there was liability on the part of J, for if he had proceeded to trial he might have obtained a verdict. Here it will be noticed that the scope of the defendant's obligation was different, or might be different from that of the original debtor, and this possible difference must have been present to the minds of the parties.
In Mountsephen v. Lakeman, L. R. 7 H.L. 17, affirming L. R. 7 Q. B. 196, the defendant had requested the plaintiff to do certain work upon a sewer of which a Board of Health had charge. A question was raised by the plain-. tiff whether the Board would authorise the work or become responsible for its payment, and the defendant then said' "go on and do the work and I will see you paid." The Board repudiated any obligation and in fact was not liable. The court held that the jury was warranted in finding the defendant had entered into a personal and primary contract to pay for the work. Here, too, it will be noticed that on the construction of the court the defendant undertook to pay the claimant's claim whether the Board was liable or not. Bee also Kimball v. Newall, 7 Hill, 116. In Sinkovits v. Applebaum, 56 N. Y. Misc. 527, 107 N. Y. S. 122, and in Cooper & Polak Works v. Rosing, 86 N. Y. Misc. 409, 147 N. Y. S. 241, it was held that an oral promise by one who owned or was interested as tenant in a building, to pay a sub-contractor for completing the work which he had engaged with a defaulting general contractor to do, was binding. Though the liability of the general contractor still continued, the promise of the owner was held original, being for a beneficial consideration and to pay the price irrespective of the contractor's liability. Cf. Griffin v. Cunningham, 183 Mass. 505, 67 N. E. 660; Boorstein v. Moffatt, 36 Nova Scotia, 81.
It may seem that a new promise to pay, at all events, a certain amount or a certain claim whether another person is liable for it or not, is a promise of such different scope from the original obligation as not to fall within the statute. But since a promise to pay a debt on a certain contingency is within the statute,48 such a promise as the one in question seems also obnoxious to it, if in fact another person was liable for the debt. It is assumed that payment by the new promisor will operate as a discharge of this liability of the old obligor, and that in no event can the creditor have actual satisfaction both from the new promisor and from the old obligor. On this assumption the new promise amounts to this: - If the old obligor is liable the new promisor agrees to discharge that liability; while if there is no valid claim against another the new promisor, nevertheless, undertakes to pay. The latter portion of this promise is obviously not within the statute, but the first portion is, in terms, within it. Now if, in fact, the original obligor is liable that alternative of the new promise which amounts to an agreement to pay the debt of another is the only portion which is operative, and the new promise is, in legal effect, nothing more than a promise to pay the debt of another. On the other hand, if there was no liability on the original claim, the new promise in legal effect is to pay a new claim, not one which previously existed, and the statute is inapplicable. It is true that it is, or may be, unknown to the parties which contingency will be applicable; and it may be urged that it is absurd that a statute which requires a certain kind of contract to be in writing, should define the kind by a description which the creditor cannot identify. But the creditor should have in mind that there is at least a possibility that the original promisor was liable and he knows that the new promise was made on the assumption of that possibility, tinder these circumstances a creditor who makes merely an oral bargain must be aware that he is taking chances. There are unquestionably many cases within the statute where the creditor has no more warning of the necessity of a writing.49 If there is no previous obligation of another a promise which purports to be merely a guaranty is not within the statute.50 Conversely a new promise to pay another's obligation is not saved from the statute by making in effect the addition, Immaterial under the existing facts, that the promisor will pay even though there was no previous liability of another.51 If it were held that a promise to pay irrespective of another's liability was on that account withdrawn from the statute, many transactions understood by the parties to be guaranties, and treated by the courts as such would be withdrawn from the statute. Behind any question of the necessity of a writing is the principle of contracts that a promisor if held at all must be held according to the terms of his promise, and it is certainly true in a large number of cases where a guaranty is intended that the guarantor defines his undertaking not by any reference to the legal liability of the principal, but by reference to matter in pais. He guarantees "the price" of goods furnished the principal, "the rent" of a house leased to him, the payment of a fixed sum of money;
46 See infra, Sec.Sec. 456, ad fin., 457. 47See infra n. 61.
48 Thus a promise to pay the debt of another when certain funds have been received is within the statute. Walker v. Irwin, 94 Ia. 448, 62 N. W. 785.
49See infra, Sec.Sec. 470 et seq.
50See supra, Sec. 454.
51 See further infra, Sec. 468. In Fairbanks v. Barker, 115 Me. 11, 87 Atl. 3, the court apparently was of opinion that a promise to pay a claim "if you don't get it any other way" was within the statute, another person bang primarily liable.
and whether the parties contemplate that there is a great chance, a small chance or no chance that the principal debtor is under no legal liability seems immaterial.