Perhaps it might more plausibly be suggested that the applicability of the Statute depends upon whether the promise in question is in terms to pay the debt of another, so that the contract by its very language makes the measure of the promisor's liability identical with that of another, who as between the two is the one who should discharge the obligation.
In New York the rule has been stated as follows: "Where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor." l2 Doubtless it is true that the new promise must
9 See supra, Sec. 454.
10"It cannot be that every absolute verbal promise to pay the debt of another upon some new consideration moving to the promisor is without the Statute of Frauds. The statute will not admit of that interpretation.
Martyn v. Arnold, 36 Fia. 446, 18 So. 791." West v. Grainger, 46 Fla. 257, 35 So. 91, 95. See also Richardson Press v. Albright, 324 N. Y. 497, 121 N. E. 463.
11 See supra, Sec. 457.
12 White v. Rintoul, 108 N. Y. 222, be identical in scope with the original obligation,13 but there may be this identity in fact though the terms of ,the new promise do not expressly adopt the debt as a standard; and the authorities indicate that a promise which is in terms to pay an amount fixed by some other standard than the debt of another may still be within the statute. This is shown very clearly by the cases holding promises to sign negotiable paper for accommodation within the statute. In these cases if the promisor should sign, he clearly might be liable for the face of the instrument, though the supposed original debtor had a defence.14 Conversely, it is true that a promise, the scope of which is fixed by the legal obligation of another, is not necessarily within the statute.15
227,15 N. E. 318. This quotation suggests the inquiry, what is to be said if the consideration was not beneficial to the promisor, but his promise was absolute in terms binding him to perform regardless of the liability of the other obligor, or if the consideration was beneficial and the promise in terms limited to the debt of the principal?
13 See supra, Sec. 456.
14 See cases cited supra, Sec. 457.
The same point may be found in other owes. In Colman v. Eyles, 2 Stark. 62, a landlord bad given a warrant for distress on the tenant; the defendant took the plaintiff to the premises to keep possession of the distrained goods and promised to pay him. Lord Ellenborough held that since the landlord wot, responsible for the necessary expenses of the distress, the defendant's promise was within the statute. Yet here it is clear that the defendant promised to pay the plaintiffs charges, not merely to satisfy the landlord's liability for those in a leading Massachusetts decision,17 said that "when the party promising has for his object a benefit which he did not before enjoy accruing immediately to himself," the promise is not within the statute; but where "the object of the promise is to obtain the release of the person or property of the debtor, or other forbearance or benefit to him, it is within the statute " and this becomes changed in a later Nebraska case,18 to the following: "Where the leading purpose of a person who agrees to pay the debt of another is to gain some advantage, or promote some interest or purpose of his own, and not to become a mere guarantor or surety of another's debt, and the promise is made on a sufficient consideration, it will be valid although not in writing." Similar statements may be found in other decisions.19 But the distinction thus suggested is easily subject to misapprehension. The purpose or object of the promisor is always to acquire the consideration for which the promise is exchanged; that is why he gives his promise, not because his promise itself has a purpose, and if he wants the consideration enough, he will give the kind of promise for it that the promisee desires. Therefore it is perfectly possible for a promisor to have as his leading purpose the "gaining of some advantage" or "promotion of some interest of his own"
15 In Edwards v. Kelly, 6 M. & S. 204, the defendants promised to pay the plaintiff "all such rent as shall appear to be legally due from him" from a third person. The court held that the promise was not within the statute because made in consideration of the surrender of goods to the promisors. Abbott, J., declared himself unable to distinguish the case from Castling v. Aubert, 2 East, 325, 332, where the promise in question was clearly to pay a fixed sum.
In the following cases, also, promises were held not within the statute, which were in terms to pay the debt of another. In each case the consideration received by the promisor being held to make the debt an original obligation of the promisor. Lamson v. Hobart's Est., 28 Vt. 697; Cross v. Richardson, 30 Vt. 641; Green v. Hadfield, 89 Wis. 138, 61 N. W. 310. Mora striking evidence perhaps of the unimportance of distinguishing between a promise which is in terms a promise to pay a debt of another as such, and one which is in terms a promise to pay a fixed amount assumed by the parties to be the debt of another, and which is in fact his debt, is the general failure of the courts in many decisions on this subject to discuss any possible difference between these two cases, or to construe the promises which come before them as having one rather than the other of these meanings.