The words of the statute require the existence of a debt independent of the obligation created by the" special promise." Therefore, a joint promise which is in law a single liability is not within the statute, though one of the joint debtors entered into the obligation as a matter of accommodation to the other.94 And an agreement to convert a separate into a joint debt by way of novation, thereby securing the liability of a new party and discharging the several liability of the original debtor, is also not within the statute.95
As a matter of logical analysis of contracts there seems no reason to doubt that a several original obligation may be entered into by each of two or more persons simultaneously for the same performance; but to permit two original debts to arise simultaneously from one quid pro quo, would violate a rule established in the action of debt. "It is an indispensable condition of the defendant's liability in debt in cases where another person received the actual benefit, that this other person should not himself be liable to the plaintiff for the benefit received. For in that event the third person would be the debtor, and one quid pro quo cannot give rise to two distinct debts," 96 and this rule still persists. Though two obligations may arise from the transfer of a single quid pro quo; but, one of them can be an original debt; the other must be a special promise to answer for the debt.97 There is no such limitation, however, on the power of parties to make special contracts. Where there is sufficient consideration the parties may make any promises which they choose. Therefore, it is evident that both of two obligations incurred on the transfer of a quid pro quo, may by special contract be absolute and unconditional promises to pay the price. One of the obligations must be
92 Esberg-Bachman L. T. Co. v. Heid, 62 Fed. 962, 963; Gaeter v. Ashley, 1 Ark. 325, 333; Packer v. Benton, 36 Conn. 343, 348, OS Am. Dec. 246; Thayer v. Wild, 107 Mass. 449, 452; McGowan Commercial Co. v. Midland Coal, etc., Co., 41 Mont. 211,108 Pac. 655; Delsman v. Friedlander, 40 Or. 33, 66 Pac. 297, 298; Drovers' Deposit Nat. Bank v. Tichenor, 156 Wis. 251, 145 N. W. 777, 779.
93 Southern Coal, etc., Co. v. Randall, 141 Ga. 48, 80 S. E. 285.
94 Perry v. Jarman, 125 Ark. 240, 188 S. W. 544; Boyce v. Murphy, 91 Ind. 1; Oldenburg v. Dorsey, 102 Md. 172, 179,62 All. 576; Gibbe v. Blanchard, 15
Mich. 292; Rottman v. Fix, 25 Mo. App. 571; Mitchell v. Davis (Mo. App.), 190 S. W. 357; Hetfield v. Dow, 3 Dutch. 440; Peele v. Powell, 156 N. C. 553, 557, 73 So. 234; Whitehurst v. Padgett, 157 N. C. 424, 73 S. E. 240; Olson v. McQueen, 24 N. Dak. 212, 139 N. W. 422; Waldock v. First Nat Bank, 43 Okla. 348,143 Pac. 53; Wain-wright v. Straw, 15 Vt. 215, 40 Am. Dec. 675; Eddy v. Davidson, 42 Vt. 66, 60. See also MoGill v. Dowdle, 33 Ark. 311; Strickland v. Hamlin, 87 Me. 81, 32 Atl. 732. But see contra Matthews v. Milton, 4 Yerg. 676, 26 Am. Dec. 247. 95 Ex parte Lone, 1 De Gex, 300.
96Ames's Lectures on Legal Hist. 94. "There cannot be a double debt upon a single loan." Per curiam, in Marriott v. Lister, 2 Wils. 141, 142.
97 This seems generally assumed in the cases, and in Hetfield tr. Dow, 3 Dutch. 440, 461. Whelpley, J., said: "How can two persons be liable, as original principal debtors, upon a parol contract, not in writing, for the entirety of the same debt? To state the proposition seems its best refutation. If the liability of the one is complete by itself, and not dependent upon or collateral to the other, then payment by one would not be payment for both, and the fortunate possessor of such an undertaking might enforce double satisfaction for the same debt. If the undertakings be not independent, one must be collateral to the other, and that which is thus collateral must be subject to the operation of the statute." So in Welch v. Marvin, 36 Mich. 59, the court said: "Under no theory of this ease, could Cook and Welch both be responsible to plaintiff severally, at his option. If Cook was liable for the meats furnished after the arrangement with Welch was made, then clearly Welch's liability could not be an original one. It is equally clear that if Welch's promise was an original promise, and the debt his debt, then Cook could not be held liable thereon."
And so Kent states: "If the whole credit be not given to the person who comes in to answer for another, bis undertaking is collateral and must be in writing," 3 Kent, Comm. 323, and this passage is often quoted with approval in terms or in substance. See Pake v. Wilson, 127 Ala. 240, 28 So. 666; Shepherd v. Butcher Tool, etc., Co., (Ala. 1916), 73 So. 49S; Cordray v. James, 19 Ga. App. 156, 91 S. E. 239; Swift v. Pierce, 13 Allen, 136,138, and O'Connell v. Mt. Holyoke College, 174 Mass. 511, 65 N. E. 460; Cole v. Hutchinson, 34 Minn. 410, 26 N. W. 319; Frissell v. Williams, 87 Mo. App. 518; Mueller v. Woodson (Mo. App.), 198 S. W. 1134; McGowan Commercial Co. v. Midland Coal etc., Co., 41 Mont. 211, 108 Pac. 655; Waldock v. First Nat. Bank, 43 Okla. 348, 143 Pac 63; Matteson v. Moone, 25 R. I. 129, 64 Atl. 1058; Mankin v. Jones, 63 W. Va. 373, 60 S. E. 248; Security Bank Note Co. v. Shrader, 70 W. Va. 476, 74 S. E. 416, Ann. Cas. 1914 A. 488; Rietsloff v. Clover, 91 Wis. 65, 64 N. W. 298. It will be seen, however, that if taken literally, this statement would be inconsistent with the cases cited supra, n. 94, which arc unquestionably sound, holding a joint liability not within the statute. To this extent modification of the statement is collateral under the law of debt and of the Statute of Frauds, but need not be conditional on prior default of the primary obligation, though doubtless, generally, it is; nor need it be to pay the "debt" of the original obligor as distinguished from the price of the quid pro quo. The modem application of the old law of debt to the Statute of Frauds is this. - the consideration for several absolute promises made by two must have enured to the benefit of one of them, of both of them, or of neither of them. If it enured to the benefit of one only, the other is a surety and his promise is within the statute.*8 If the consideration enured to the benefit of both or neither of them, the liability should be joint, as the enjoyment or lack of enjoyment, of the consideration, is equally joint, and the statute is inapplicable.
In the case of contracts by specialty, there is not the same difficulty in two persons becoming severally liable for the same debt. No quid pro quo had to be received by either of them; the specialty itself gave rise to the debt.99 For this purpose negotiable instruments are to be regarded as mercantile specialties, though open to defences unless some value was received by the maker or given by a holder.1 And joint and several, or several obligations given in return for a quid pro quo furnished to one of the obligors on such instruments are not within the statute as to any of them.2 In some of the decisions this result is explained by saying that a consideration is presumed, and that therefore the note furnished a sufficient memorandum. But if the note was given for a particular consideration, and the local law requires the consideration in a memorandum to be stated, no memorandum can be accurate and sufficient which does not state that very consideration.
98 See cases in the preceding note. But see Mitchell v. Davis (Mo. App.), 190 S. W. 357, with which cf. Mueller v. Woodson (Mo. App.), 198 8. W. 1134.
99Ames, Lectures on Legal History, 88, 90, 95, 122.
1 As to the right of the holder of negotiable paper to sue in debt upon it, see 2 Ames' Cas. Bills and Notes, 520
2 Davidson v. Rothschild, 49 Ala. 104; Nichols A Shepard Co. v. Ded-rick, 61 Minn. 513, 63 N. W. 1110; Freeh v. Yawger, 47 N. J. L. 157, 54 Am. Rep. 123; Casey c. Brabason, 10 Abb. Pr. 368; Paul v. Stackhouse, 38 Pa. 302; Wainwright v. Straw, 16 Vt. 215. 40 Am. Deo. 675.
The result of the cases can, therefore, properly be reached only on the theory that the promises in negotiable paper creating, as they do, obligations under the custom of merchants, are not within the statute.
The same result may be reached where only one of two simultaneous obligations is a specialty, the other being merely a parol promise. Thus where a bank discounted notes for a corporation, on receiving a promise by certain stockholders that they would pay the notes at maturity, according to their tenor, a several obligation was thereby created simultaneously in favor of the bank. Though the court held the stockholder's promise was original and not conditional on default by the makers of the notes, there could be no doubt that the bank likewise acquired the absolute obligation of the makers of the notes.3
What the effect may be on the technical doctrine forbidding two original several obligations to arise by simple contract from the same transaction, of the common statutory provision making all joint liabilities joint and several is an inquiry to which the cases as yet give little answer.4
If joint and several liability may be orally created, it seems difficult to see why several liability may not be.