If the plaintiff sues on that portion of a divisible promise, which is outside the statute, whether he can recover, depends upon principles somewhat analogous to those governing contracts in part illegal.82 If the plaintiff has furnished, or is prepared to furnish when due, the whole consideration for the defendant's promise, including that portion which is within the statute as well as that portion which is not, the plaintiff is clearly entitled to recover on the enforceable part of the defendant's promise. So if the consideration to be furnished by the plaintiff was divisible and he has furnished that portion of the consideration allotted to the portion of the defendant's promise on which suit is brought, recovery may also be allowed.83 But unless one of these conditions is true, the plaintiff cannot recover.

A promise to answer for part of the debt of another is also within the statute.84

Sec. 484. Guaranties withdrawn from the statute by their connection with a larger contract The contract made by a del credere factor with his principal, which includes an obligation to guarantee the debts due the principal which are created by the factor's sales of his principal's goods has been held not within the statute.85 And though it has been said that this result goes to the verge of the law,86 it is clearly settled. So a promise made by the seller of a note or claim against another to guarantee payment thereof, is held not within the statute.87

Thomas v. Williams, 10 B. ft C. 664; Noyes v. Humphreys, 11 Gratt. 636; and the explanation of some of these cases in Wood v. Benson, 2 C. & J. 94.

82 See infra, Sec.Sec. 1770 et seq.

83 See Wood v. Benson, 2 C. ft J. 94; Rand v. Mather, 11 Cush. 1, SO Am. Dec. 131.

84 Emmet v. Dewhurst, 3 Mc N. ft G. SS7; Temple v. Bush, 76 Conn. 41, 65 Atl. 557. In Spear v. Farmers' Bank, 156 111. 555, 41 N. E. 164, two creditors orally agreed to share the losses they might suffer from the default of their common debtor. The agreement was held not to be within the statute. Contrary statements in -

Anstey v. Marden, 1 B. & P. N. R. 124; Jolley v. Walker, 28 Ala. 690, are discredited.

85 Couturier c Hastie, 8 Ex. 40; Sutton v. Grey, [1893] Q. B. 285; Swan v. Nesmit, 7 Pick. 220, 19 Am. Deo. 282; Suman v. Inman, 6 Mo. App. 384; Sherwood v. Stone, 14 N. Y. 267; Wolff v. Koppel, 5 Hill, 458; Guggenheim d. Rosenfeld, 9 Baxt. 533; Bradley v. Richardson, 23 Vt. 720.

86 In Harburg Comb Co. v. Martin, [1902] 1 K. B. 778, 790, Stirling, I.. J., said: "From the judgment of Bowen, L. J., in Sutton & Co. v. Grey, 69 L. T. (N. S.) 354, at page 355, it is clear that he regarded Courturier v. Hastie, 8 Ex.

In both these cases typical guaranties are given. The promises are withdrawn from the statute only because the transaction on both sides is concerned with a matter to which the guaranty is a mere incident.88

40, as going to the very verge of the law, and he referred to the observations upon it made by Page Wood, V. C, in Wickham v. Wickham, 2 K. & J. 478, at p. 487."

87 Beaty v. Grim, 18 Ind. 131 (but see Hassinger p. Newman, 83 Ind. 124); little v. Edwards, 69 Md. 490; Hunt v. Adams, 5 Mass. 368, 4 Am. Dec. 68; Hungtington v. Wellington, 12 Mich. 10; Wilson v. Hentges, 29 Minn. 102, 12 N. W. 151; Barker v. Scudder, 56 Mo. 272; Cardell v. McNeil, 21 N. Y. 336; Milks ». Rich, 80 N. Y. 269, 36 Am. Rep. 615; Newell v. Chapman, 74 Hun, 111; Rowland v. Rorke, 4 Jones L. 337; Malone v. Keener, 44 Pa. 107; Hall v. Rogers, 7 Humph. 636; Hopkins v. Richardson, 9 Gratt. 485; Eagle, etc., Machine Go. v. Shattuck, 53 Wis. 455, 10 N. W. 690, 40 Am. Rep. 780,

In the following cases notes were assigned by the payee without indorsement, but with a guarranty of payment: Mobile Co. p. Jones, 67 Ga. 198; Smith v. Finch, 3 111. 321; Adoock v. Fleming, 2 Dev. A B. 225; Ashford v. Robinson, 8 Ired. 114; Rowland v. Rorke, 4 Jones (N. C), 337; Hall v. Rogers, 7 Humph, 536; Wyman v. Goodrich, 26 Wis. 21. Cf. Dows v. Swett, 120 Mass. 322, 127 Mass. 364,134 Mass. 140, 45 Am. Rep. 310, where the guarantee of another's note made payable to the creditor, and of which the guarantor had never been the holder, was held within the statute, though the whole transaction was entered into as a means of paying the guarantor's own debt. But see Sheldon v. Butler, 24 Minn. 613; Crane v. Wheeler, 48 Minn. 207, 60 N. W. 1033; Eagle, etc., Machine Co. v. Shattuck, 53 Wis. 455,10 N. W. 690, 40 Am. Rep. 780.

88 Cf. with these cases the decisions on divisible promisee in the preceding section. In these cases, also, it is true that the guarantee related only to a portion of the contract on either side.