Another kind of defence to a promise to pay a debt has given rise to considerable litigation. May the promisor set up that the debtor did not owe the debt or that it was an illegal debt? The answer to this question depends upon the true meaning in fact of the promise rather than upon any rule of law. If the promisor's agreement is to be construed as a promise to discharge whatever liability the promisee is under, the promisor must certainly be allowed to show that the promise was under no liability.17 Thus one who in return for an assignment of property assumed all the grantor's debts would certainly be allowed to dispute the validty of any debt.18 On the other hand, if the promise means that the promisor agrees to pay a sum of money to A, to whom the promisee says he is indebted, it is immaterial whether the promisee is actually indebted to that amount or at all. The promisee has decided that question himself. Where the promise is to pay a specific debt, for example to assume a specific mortgage, especially if the amount of it is deducted from the consideration paid by the promisor for the mortgaged property, this construction will generally be the true one.19 Most of the cases accordingly refuse to allow one who has assumed a specific debt to set up usury 20
818; Robertson c. Stuhlmiller, 93 Ia. 326, 61 N. W. 986.
17 Paul v. Vancouver, 89 Wash. 331, 154 Pac. 453, and see cases in the following note.
18 See Gate City Nat. Bank v. Chick, 170 Mo. App. 343, 156 S. W. 743; Crowe v. Malba Land Co., 76 N. Y. Misc. 676, 13S N. Y. S. 454.
19 If the debt in fact was not due the promise will be to pay a sole beneficiary; if, however, the debt was due, the promisee will be of the debtor and creditor type. It seems immaterial that the parties are ignorant, when they contract, to which class the promise belongs.
20Millington v. Hill, 47 Ark. 301, 1 S. W. 547; People's Bank v. Collins, 27 Conn. 142; Key West Coal Co. v. Porter, 63 Fla. 448, 58 So. 599; Henderson v. Bellew, 45 111. 322; Valentine v. Fish, 45 111 462; Easley v. Sloan, 16 111 App. 63; Flanders v. Doyle, 16 111. App. 508; Cleaver v. Burcky, 17 111. App. 92; Stephen v. Muir, 8 Ind. 352, 65 Am. Dee. 764; Spinney v. Miller, 114 Ia. 210, 86 N. W. 317; Williams v. Eagle Bank, 172 Ey. 541, 189 S. W. 883; Hough v. Horsey, 36 Md. 181; Log Cabin Assoc, v. Gross, 71 Md. 456, 18 Atl. 898; Scankn v. Grimmer, 71 Minn. 351, 74 N. W. 146, 70 Am. St. Rep. 328; Cramer v. Lepper, 26 Ohio St. 59, 20 Am. Rep. 756; Jones v. Insurance Co., 40 Ohio St. 583; Spaulding v. Davis, 51 Vt. 77; Conover v. Hobart, 24 N. J. Eq. 120; Post v. Dart, 8 Paige, 639; Cole v. Savage, 10 Paige, 583; Root v. Wright, 21 Hun, 344; Sands v. Church, 6 N. Y. 347; Hartley v. Harrison, 24 N. Y. 170; or other defences,21 of which the debtor might have availed himself.