(3) Other courts hold that if the new promise is based on a new consideration which is a pecuniary benefit to the promisor, the new promise is not within the statute of frauds, but that otherwise it is.1 If no consideration moves to the promisor, that is, if he receives no benefit, the sole consideration being a detriment to the promisee, his promise where this theory obtains is within the statute of frauds.2 If he receives a personal benefit his promise is not within the statute.3 Under this theory a

4 Hilton v. Dinsmore, 21 Me. 410; overruling Russell v. Babcock, 14 Me. 138; Lang v. Henry, 54 N. H. 57; Harrington v. Rich, 6 Vt. 666.

1 Chapline v. Atkinson, 45 Ark. 67; 55 Am. Rep. 531; Smith v. De-laney, 64 Conn. 264; 42 Am. St. Rep. 181; 29 Atl. 496; Schaafs v. Wentz, 100 la. 708; 69 N. W. 1022; Durgin v. Smith, 115 Mich. 239; 73 N. W. 361; Swayne v. Hill, 59 Neb. 652; 81 N. W. 855; Lookout Mountain R. R. Co. v. Houston, 85 Tenn. 224; Farnham v. Chapman, 61 Vt. 395; 18 Atl. 152; Kelley v. Schupp, 60 Wis. 76; 18 N. E. 725.

2 Scott v. White, 71 111. 287; Parker v. Dillingham, 129 Ind. 542; 29 N. E. 23; Crawford v. King, 54 Ind. 6; Schaafs v. Wentz, 100 la. 708; 69

X. W. 1022; Ames v. Foster, 106 Mass. 400; 8 Am. Rep. 343; Bates v. Johnrowe (also styled Bates v. Donnelly), 57 Mich. 521; 24 N.W.788; (Citing Packer v. Benton, 35 Conn. 343; 95 Am. Dec. 246; Conradt v. Sullivan, 45 Ind. 180; 15 Am. Rep. 261; Townsend v. Long, 77 Pa. St. 143; 18 Am. Rep. 438; Muller v. Riviere, 59 Tex. 640; 46 Am. Rep. 291; Clopper v. Poland, 12 Neb. 69; 10 N. W. 538; Fitzgerald v. Morrissey, 14 Neb. 198; 15 N. W. 233; Clay v. Tyson, 19 Neb. 531; 26 N. W. 240; Joseph v. Smith, 39 Neb. 259; 42 Am. St. Rep. 571; 57 N. W. 1012; Rogers v. Hardware Co., 24 Neb. 653; 39 N. W. 844; Mathews v. Seaver, 34 Neb. 592; 52 N. W. 283.) 3 Smith v. Delaney, 64 Conn. 264; promise by A, who is a partner of C, to pay C's debt to B if B will not seek to enforce C's debt against partnership property is not within the statute,4 nor is A's promise to pay a debt of C, deceased, if B will withdraw opposition to the probate of the will and if the estate proves solvent and pays all debts and legacies.5 A modification of this view is held by those courts which seek to make the motive of the promisor A in agreeing to pay C's debt to B, the test of the application of the statute. If A's main purpose is to secure some benefit to himself the promise is not within the statute; otherwise it is.6 The objection to this rule is that in terms it places A's contract to guarantee C's debt to B outside of the operation of the statute if any consideration passes to A.7 Cases of this class are clearly within the statute in accordance with the view held by the weight of authority. Many of the cases cited in support of this rule could be explained as well by the second rule given above, and it may be said that the tendency now is for states to pass from the third class to the second. The modification of this theory that makes promisor's motive the test is still more objectionable. Actions and words, not motives, should be the operative facts in contract law; and it is substituting conjecture for certainty to make the validity of the contract turn on what either court or jury may think was the predominant motive in the mind of the promisor.

42 Am. St. Rep. 181; 29 Atl. 496; Garvey v. Crouch (Ky.), 35 S. W. 273; Durgin v. Smith, 115 Mich. 239; 73 N. W. 361; Joseph v. Smith, 39 Neb. 259; 42 Am. St. Rep. 571; 57 X. W. 1012. "Where the third party is himself to receive the benefit for which his promise is exchanged, it is not usually material whether the original debtor remains liable or not." Calkins v. Chandler, 36 Mich. 320, 324; 24 Am. Rep. 593, 597; quoted in Perkins v. Hershey, 77 Mich. 504; 43 X. W. 1021.

4Swayne v. Hill, 59 Neb. 652; 81 X. W. 855.

5 Rowell v. Dunwoodie, 69 Vt. Ill; 37 Atl. 227; and see for similar facts Templetons v. Bascom, 33 Vt. 132.

6"Whenever the main purpose and object of the promise is not to answer for another, but to subserve some pecuniary or business purpose of his own involving either benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability." Emerson v. Slater, 22

How. (U. S.) 28, 43; quoted in Fisk v. Reser, 19 Colo. 88; 34 Pac. 572. "Where the leading object of a party promising to pay the debt of another is to promote his own interest and not to become guarantor, and the promise is made on sufficient consideration, it will be valid though not in writing." Fitzgerald v. Mor-rissey, 14 Neb. 198, 201; quoted in Joseph v. Smith, 39 Neb. 259; 42 Am. St. Rep. 571; 57 X. W. 1012. To the same effect see Davis v. Patrick, 141 U. S. 479; Emerson v. Slater, 22 How. (U. S.) 28; Choate v. Hoogstraat, 105 Fed. 713; Con-radt v. Sullivan, 45 Ind. 180; 15 Am. Rep. 261; Calkins v. Chandler, 36 Mich. 320; 24 Am. Rep. 593; Winn v. Hillyer, 43 Mo. App. 139; Mathews v. Seaver, 34 Neb. 592; Ward v. Hasbrouck, 169 X. Y. 407; 62 X. E. 434; Mallory v. Gillett, 21 X. Y. 412; Bailey v. Marshall, 174 Pa. St. 602; 34 Atl. 326; Elkin v. Timlin, 151 Pa. St. 491; 25 Atl. 139; Fehlinger v. Wood, 134 Pa. St. 517; 19 Atl. 746; Nugent v. Wolfe, 111 Pa. St. 471; 56 Am. Rep. 291; 4 Atl. 15; Muller v. Riviere, 59 Tex. 640; 46 Am. Rep. 291; Lemmon v. Box, 20 Tex. 329; Clapp v. Webb, 52 Wis. 638; 9 X. W. 796.