26h King v. Wilson, 2 Stra. 873; Fish v. Hutchinson, 2 Wils. 94; Tomhinson v. Getl, 6 A. & E. 564; Westmoreland v. Porter, 75 Ala. 452; Scott v. Thomas, 2 111. 58; Kruts v. Stewart, 54 Ind. 178; Jones v. Walker, 13 B. Mon. 356; Stewart v. Campbell, 58 Me. 439 (overruling Russell v. Babcock, 14 Me. 138); Thomas v. Delphy, 33 Md. 373; Dexter v. Blanchard, 11 Allen, 365; Musick v. Musick, 7 Mo. 495; Lang v. Henry, 54 N. H. 57; Duffy v. Wunsoh, 42 N. Y. 243, 1 Am. Rep. 514; Roe v. Barker, 82 N. Y. 431; White v. Rintoul, 108 N. Y. 222, 15 N. E. 222; Gump v. Halberstadt, 15 Oreg. 356,15 Pac. 467; Caston v. Moss, 1 Bail. (S. Car.) 14; Harrington v. Rich, 6 Vt. 666; Young v. French, 35 Wis. 111; Clapp v. Webb, 52 Wis. 638, 9 N. W. 796. But held otherwise where the forbearance was desired for business reasons of the promisor in Kirby v. Kirby, 248 Pa. 117, 93 Atl. 874. And the mere detriment to the promisee of forbearing was thought sufficient in Marrow v. White, 151 N. Car. 96, 65 S. E. 746; Ellis v. Carroll, 68 S. Car. 376, 47 S. E. 679; Enterprise Trading Co. v. Bank of Crowell (Tex. Civ. App.), 167 S. W. 296.
As a matter of theory, the proposition cannot be accepted that the receipt by the promisor of a beneficial consideration should remove a promise from the statute. A typical case of a promise made for a beneficial consideration is that of a guaranty company to guarantee the debt of another in consideration of a premium (which supposedly may be paid either by the creditor or by the principal debtor). Nevertheless such a promise seems clearly within both the words of the statute and the mischief aimed at it.26j on the prior default of the principal debtor the promise was in form an absolute undertaking by the surety. If such promises are within the statute, it would seem that any similar promise must be within the statute where the relation of the parties is such that the promisor is merely a surety.26k
There seems no reason to believe that the promise by such a company for a premium would be withdrawn from the statute if the beneficial consideration given for the guaranty was property of the promisor previously held by the creditor as security; that is, if the creditor, in lieu of the security of property which he had theretofore held agreed to take as security the secondary liability of the owner of the property. Nor does it seem material if instead of being in terms conditional
26i Williamson v. Hill, 3 Mackey, 100; Fears v. Story, 131 Mass. 47; Stephen v. Yeomans, 112 Mich. 624, 71 N. W. 159; Carothers v. Connolly, 1 Mont. 433; Prime v. Koehler, 77 N. Y. 91; Alley v. Turck, 8 N. Y. App. Div. 50, 40 N. Y. S. 433; Arnold v. Stedman, 45 Pa. St. 186; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Kelley v. Schupp, 60 Wis. 76,18 N.W.725.
26j In Ames v. Foster, 106 Mass. 400, 8 Am. Rep. 343, the court said: "It is equally true that it is no sufficient ground for taking the case out of the statute, that the defendant has received some benefit from the consideration of his promise. If this were so, then every promise to guarantee the debt of another, made upon a pecuniary consideration paid by the promisee to the promisor, would be taken out of the statute."
In Lang v. Henry, 54 N. H. 57, 61, the court said: "Suppose A owes B $100; B pays C S10, in consideration of which C verbally promisee to guarantee the payment of the debt. There are numerous decisions, some of which were pronounced by judges of high authority, going far enough to sustain an action upon this promise; yet it is very plain that this is squarely prohibited by the statute."
In Brown v. Weber, 38 N. Y. 187, 191, the court said; "Suppose A delivers property to B, in consideration of his promise to become surety to him for the payment of a debt owing to him by C; the case is within the statute, because B's obligation, although upon a consideration received by him, is that of a surety only that C shall perform." See also Ames, Cas. Suretyship, p. 86.