though enforceable by creditor is not within the statute.
As has been seen the application of the statute has been confined to promises made to the creditor;42 but under a rule generally prevailing in this country 43 the contract of a third person with a debtor to pay his debt may be enforced by the creditor and the creditor is often held to acquire a new and direct right against the new promisor. Where this is the law the promise to the debtor must be regarded as in effect a promise to the creditor, and the application of the statute must be considered as if a new promise had been made directly to the creditor. So looking at the matter a promise to assume and pay an existing debt is not within the statute if it operates like a novation to extinguish the liability of the original debtor. In a few jurisdictions such is held to be the effect of the promise, and in these jurisdictions, the same reasoning is followed as in any case of novation.44
Peele v. Powell, 156 N. C. 653, 557, 73 So. 234; Estabrook v. Gebbart, 33 Oh. St. 415; Miller v. Lynch, 17 Oreg. 61, 19 Pac. 845; Allahouse v. Ramsay, 6 Wharf. 331, 37 Am. Deo. 417; Whit. alter v. Greene (R. I.), 103 Atl. 779; Corbett v. Cochran, 3 Hill (S. C), 41, . 1 Riley L. 44, 30 Am. Deo. 348; Warren v. Smith, 24 Tex. 484, 76 Am. Deo. 115; McCreary v. Van Hook, 35 Tex. 631; Watson v. Jacobs, 29 Vt. 169; Williams v. Little, 35 Vt. 323; Bates p. Babin, 64 Vt. 611, 24 Atl. 1013; Noyes v. Humphreys, II Grat. 636; McKay v. Northern Bank ft Trust Co., 69 Wash. 186, 124 Pac. 372; Willard v. Bosshard, 68 Wis. 454, 32 N. W. 538; Rietsloff v. Glover, 91 Wis. 66, 64 N. W. 298; Jones v. Burgess, 39 N. Brunswick, 603, 634.
40 In Aultman v. Fletcher, 110 Ala. 452, 18 So. 215, the defendant promised that if the plaintiff would sell a saw mill to Williams, the defendant in satisfaction pro tanto of the price would pay to the plaintiff whatever should be thereafter due to Williams from the defendant. The court said (p. 458); "It is true that no action could have been maintained upon the promise of the defendant, until Williams carried out his agreement to do the sawing, yet when that was done the defendant's promise became capable of legal enforcement. . . . The reduction of the debt Williams owed the . . . plaintiff would not depend upon the actual payment by the defendant to the plain-tiff of the amount, but upon the performance by Williams of his part of the agreement, and as soon as he did the sawing for Fletcher his debt became pro tanto extinguished."
41 Griffin v. Cunningham, 183 Mass-SOS, 67 N. E. 660.
42Supra, Sec. 460.
43 See supra, Sec. 381.
In most American jurisdictions, however, the creditor is held to retain his right against his original debtor as well as to acquire a direct right against the new promisor.44a Even in such jurisdictions the new promise is outside the scope of the statute, if by virtue of the promisor's contract with the original debtor, he has become as between the two the principal debtor. He has, then, received consideration equivalent to the amount of the debt, and the debt is primarily his. The principle is applied in a variety of cases. Thus where the grantee of mortgaged property assumes the mortgage, his obligation to the creditor is not within the statute.45 So where an interest as a partner, is bought or sold, and as part of the consideration the buyer agrees to pay firm debts, the right thereby acquired in most States by creditors is not dependent on the agreement being in writing.46 And in any case where the purchaser of Iowa, property agrees as part of the price to pay the seller's debt to a third person, or perform a contract with a third person, the same principle is applicable.47 Indeed in any case where the promisor for valid consideration assumes the payment of a debt, the same principle applies, - for the promisor becomes the principal debtor; 48 but this is not true where the new promisor owed nothing to the original debtor and received nothing from him or from the creditor.49
44This reasoning is followed in Aldrich v. Carpenter, 160 Moss. 166, 170, 35 N. E. 456 (applying Rhode Island law); Lang v. Henry, 54 N. H. 57; Wood v. Moriarty, 15 R. I. 518, 9 Atl. 427, 16 R.I.201,14 Atl. 855.
44a See Supra, Sec. 393.
45 Mulvany v. Gross, 1 Col. App. 112, 27 Pac. 878; Tuttle v. Armstead, 53 Conn. 175, 22 Atl. 677; Lowe v. Hamilton, 132 Ind. 406, 31 N. E. 1117; Lamb v. Tucker, 42 la. US; Fisher v. Spillman, 85 Kans. 552, 118 Pac. 65; Flint v. Winter Harbor Land Co., 89 Me. 420, 36 Atl. 634; Dobyns v. Rice, 22 Mo. App. 448; Provenchee v. Piper, 68 N. H. 31, 36 Atl. 552; Huyler v.
Atwood, 26 N. J. Eq. 604, affd. in 28 N. J. Eq. 275; Urquhart v. Brayton, 12 R. I. 169; Beitel v. Dobbin (Tex. Civ. App.), 44 S. W. 299; Thompson v. Cheeseman, 15 Utah, 43, 48 Pac. 477; Bicknell v. Henry, 69 Wash. 408, 125 Pac. 156; Morgan v. South Milwaukee, etc., Co., 97 Wis. 275, 72 N. W. 872. So where the buyer of chattel property under a conditional sale, assigned the property to one who assumed payment of the remainder of the price. Pembroke's Appeal, 117 Me. 396, 104 Atl. 630.
46 Vanness v. Dubois, 64 Ind. 338; Dickson v. Grade, 148 Ind. 279, 46 N. E. 998; Poole v. Hintrager, 60