Though the words of the statute are in terms applicable to a promise made to any one to pay a debt of a third person, by construction of the courts, which have had in mind the mischief aimed at, the application of the act has been confined to promises made to the creditor himself. Accordingly oral promises made to the debtor to assume and pay his debt may be enforced by him,73 as may an oral promise to lend him money with which to discharge his debts.74
71 Andrews v. Smith, 2 C. M. & R. 627. See also Woodruff v. Scaife, 83 Ala. 152, 3 So. 311; Aultman v. Fletcher, 110 Ala. 452, 18 So. 21S; Mc-Keenan v. Thissel, 33 Me. 388; Shaaber p. Bushong, 105 Pa. 514, 517; Pirie v. Granite, etc., Trust Co., 91 Vt. 304, 100 Atl. 676. See also infra, Sec. 479.
72 Fisher v. Donovan, 57 Neb. 361,77 N. W. 778, 44 L. R. A. 383.
73Eastwood v. Kenyan, 11 Ad. & E. 438; Tuttle v. Armstead, 53 Conn. 175, 22 Atl. 677; Neagle v. Kelly, 146 111. 460, 34 N. E. 947; Tremayne v. Mo-Caskey Register Co., 181 111. App. 398; Bateman v. Butler, 124 Ind. 223, 24 N. E. 989; Patton v. Mills, 21 Kans. 163; Hubon v. Park, 116 Mass. 541; Pratt p. Bates, 40 Mich. 37; Clay Lumber Co. v. Hart's Branch Coal Co., 174 Mich. 613, 140 N. W. 912; Goets v. Foos, 14 Minn. 265, 100 Am.
Dec. 218; Ware v. Allen, 64 Miss. 545, 1 So. 738; Grace v. Floyd, 103 Miss. 201,61 So. 694; Howard v. Coshow, 33 Mo. 118; Dent v. Arthur, 166 Mo. App. 472, 137 S. W. 285; Patrick v. Barker, 78 Neb. 823, 112 N. W. 358; Fiske v. MeGregory, 34 N. H. 414; Smart p. Smart, 97 N. Y. 559; Rice v. Carter, 11 Ired. 298; Van Gilder v. Bullen, 159 N. C. 291, 74 S. E. 1059; Staver Carriage Co. v. Jones, 32 Okla. 713, 123 Pac. 148; Brown v. Brown (Tex. Civ. App.), 155 S. W. 551; Hawking v. Western Nat. Bank (Tex. Civ. App.), 145 S. W. 722; Randall v. Kelsey, 46 Vt. 158; Bicknell v. Henry, 69 Wash. 408, 125 Pac. 156; Handsaker v. Pedersen, 71 Wash. 218, 128 Pac. 230. See also Murphy v. Hanna, 37 N. Dak. 156, 164 N. W. 32. In Sharp v. Levan, 236 Pa. 374, 84 Atl. 915, however, the court held a promise by one ment, and founded on the same consideration moving at the same time between the parties, or whether it was confined to cases where there was already a subsisting debt and demand, and the promise was merely founded upon a subsequent and distinct undertaking, might, if the point were entirely new, deserve very grave deliberation." But, as the learned Justice remarked, the question has now been closed, for though once it was thought that unless a guarantor's promise to pay was made after the obligation of the principal debtor had been incurred, the statute was not applicable,77 it is now settled that a "special promise" within the Statute may be made prior to or simultaneously with the creation of the principal obligation, and may be offered as an inducement to the creditor to enter into a contract with the principal debtor.78
74 Murphy v. Hanna, 37 N. Dak. 156, 164 N. W. 32.
A situation arises in the United States, where in many jurisdictions a creditor is allowed to sue on a promise to pay his claim made to the debtor, which has not arisen in England, where only the promisee is ever allowed to sue on a contract.
Where it is held, whether reasonably or not, that a promise to the debtor creates a new and direct right in favor of the creditor, it would seem that in legal effect the promise is dealt with as if made directly to the creditor. Of the jurisdictions which hold that such a direct right arises, a few hold that the right of the creditor under such a promise is based on an assumed novation offered by the promisor and promisee and accepted by the creditor.75 On such an assumption, evidently the promise is not within the statute, since the original obligation is extinguished by the later promise; and whenever this is the case, a new promise is not within the statute.76
Where the promise to the debtor is held to give the creditor a direct right against the new promisor without destroying his right against the original debtor, the case is identical in legal effect and should be regarded as identical for purposes of the statute with a case where the promise is made directly to the creditor in return for consideration furnished by the debtor, and where the liability of the original debtor still persists.76a