This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
This clause of the statute refers to transactions in which two distinct liabilities, involving three persons, must co-exist. It assumes that C has incurred or is incurring a liability to B, and terms so as to conform to the meaning of the statute, or they will mislead us rather than aid us.3 As is often the case, the adjudications, while far from harmonious, are by no means as discordant as the theories, expressed and reasons assigned by the courts in deciding them would indicate.
5 Perkins v. Cooper (Cal.), 24 Pac. 377; under Cal. Civ. Code, Sec. 1624; reversed on another point, 87 Cal. 241; 25 Pae. 411.
6 Bellows v. Sowles, 57 Vt. 164; 52 Am. Rep. 118.
7Taylor v. Mygatt, 26 Conn. 184; Holderbaugh v. Turpin, 75 Ind. 84; 39 Am. Rep. 124; Cochrane v. Mc-Entee (N. J. Eq.) , 51 Atl. 279; Wales v. Stout, 115 N. Y. 638; Bellows v. Sowles, 57 Vt. 164; 52 Am. Rep. 118. "This phraseology clearly implies an obligation, duty or liability on the part of the testator's estate for which the executor promises to pay damages out of his own estate." Bellows v. Sowles, 57 Vt. 164, 169; 52 Am. Rep. 118, 119.
8 Harrington v. Rich, 6 Vt. 666; quoted in Bellows v. Sowles, 57 Vt. 164, 170; 52 Am. Rep. 118.
9 See Sec. 611, et seq. 10 See Sec. 629.
11McKeany v. Black, 117 Cal. 587; 49 Pac. 710; holds that the executor's oral promise to pay a debt of decedent out of his own estate is within the statute even if the debt of the estate is to be discharged thereby. The contract in this case was also within the statute as one not to be performed within a year from the date of the making therethat A has assumed a liability to B for the ultimate payment of the debt for which C is in the first instance liable. At the outset it may be said that no general test for determining whether A's promise to B to discharge C's debt is so related to C's liability as to fall within the statute of frauds can be laid down, which will reconcile all the decisions of the courts, or which can even claim the support of a clear weight of authority.1 The confusion on this subject has in part grown out of the fact that when A releases himself from liability to B by paying C's debt it is hard to say whether it is A's debt or C's that he is paying. Furthermore, the natural difficulties of this subject have been increased by a loose use of terms; especially of "original" and "collateral." If A promises to pay B for goods furnished by B to C, C incurring no liability, A's liability may well be termed original.2 From this use of "original" it has been an easy step for some courts to assume that questions as to this clause of the statute of frauds could be solved by the use of the terms "original" and "collateral," overlooking the fact that only the statute can be relied on as the ultimate expression of its meaning, and that if we wish to substitute "original" and "collateral" liability for the terms used in the statute, we must first define those of. Crawford v. King, 54 Ind. 6, seems to hold that an oral promise by an executor to pay a claim against the estate personally in consideration of the release of the estate is valid.
1 "Perhaps few questions have occasioned more controversy, or given rise to more nice and shadowy distinctions than those arising out of this branch of the statute of frauds. The cases on the subject are in hopeless conflict and every attempt heretofore made to classify them or to draw from them a rule that might be a guide to future decisions seems rather to have furnished new grounds for controversy than to put the question at rest." Gilmore v. Box Factory, 20 Wash. 703, 704;
56 Pac. 934. So in speaking of this clause the court said: "An immense amount of litigation has arisen over its construction. It is impossible to reconcile the decisions which have been made under it. Almost any theory of its scope and meaning can find some case to support it. The most careful text-writers have acknowledged their inability to find anything like uniform rules of construction in the conflicting decisions which have been rendered." Dillaby v. Wilcox, 60 Conn. 71. 76; 25 Am. St. Rep. 299, 301; 13 L. R. A. 643; 22 Atl. 491. To the same effect see Fullam v. Adams, 37 Vt. 391. 2 See Sec. 618.