It has been held in Massachusetts, and a few other States, that an oral promise to a creditor is within the statute, though the promisor may have assumed the obligation to pay in consideration of a transfer to him by the debtor of property which is received by the promisor as the exchange or equivalent of the debt. It is said that to withdraw the promise from the statute the creditor must furnish the consideration.33 These decisions,
31 See supra, J 464.
32 Supra, Sec.473.
33 Furbish v. Goodnow, 98 Mass. 296. To the same effect are, Clapp v. Law-ton, 31 Conn. 96; Lowe v. Turpie, 147
Ind. 652, 684, 44 N. E. 25, 47 N. E. 150, 37 L, R. A. 233 (reported on later appeal in 158 Ind. 47, 62 N. E. 628) Curtis c. Brown, 5 Cush. 488; Bright-man v. Hicks, 108 Mass. 246; Brown v.
however, seem opposed to both principle and authority. As matter of principle, if the purpose of the statute is what has been suggested,34 the defendant having received the full and beneficial equivalent for what he undertakes to pay, should be held. In a true sense it is his debt, not simply his special promise to pay another's debt. Indeed, it may be said that it would be far more proper to require that the consideration for the new promise must move from the debtor than to require that it must move from the creditor. As has been seen,35 consideration received from the creditor will almost never be received as the equivalent of the amount of the debt. It will be received as the reward for taking the risk of being called on to pay as surety, or the risk of being able to collect from the principal debtor after having made payment. On the other hand, though it is possible for consideration received from the debtor to be given in payment for risk of that sort, yet the consideration is far more likely to be given as the equivalent of the amount of the debt which is thereupon assumed by the new promisor as a principal debtor. If compelled to pay, he will have received a quid pro quo for his payment without being forced to seek a remedy over against the original debtor.
On authority, the numerous cases which hold that one who assumes payment of a debt on the transfer by the debtor to him of property mortgaged or liable for the debt, is bound without a writing, 36 are opposed to the cases which are here criticised.