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.
If A has in his hands money or property belonging to C, out of which he has authority to pay C's debt to B, and A promises to pay C's debt to B, A's promise is not within this clause of the statute.1 Thus a promise by an employer to pay a debt of his
13Stowell v. Gram, 184 Mass. 562; 69 N. E. 342.
1 Carter v. Odom, 121 Ala. 162; 25 So. 774; Smith v. Corege, 53 Ark. 295; 14 S. W. 93; Chapline v. Atkinson, 45 Ark. 67; 55 Am. Rep. 531; Power v. Rankin, 114 111. 52; 29 N. E. 185; Voris v. Loan Association, 20 Ind. App. 630; 50 N. E. 779; Fears v. Story, 131 Mass. 47; Crane v. Wheeler, 48 Minn. 207; 50 N. W. 1033; Wilson v. Hentges, 29 Minn. 102; 12 N. W. 151; Barker v. Seudder, 56 Mo. 272; Bruce v. Burr, 67 N. Y. 237; Crawford v. Pyle, 190 Pa. St. 263; 42 Atl. 687; Malone v. Keener. 44 Pa. St. 107; Hall v. Rodgers, 26 Tenn. 236; Wy-man v. Goodrich, 26 Wis. 21. Contra, Dows v. Sweet, 120 Mass. 322, where, however, A was not the holder of the note guaranteed. See, however, the same case in 134 Mass. 140; 45 Am. Rep. 310. The question of the value of this case as authority turns in part on the question of the value of a case where the record discloses one combination of facts (that A did not own the note) and the opinion of the court assumes another (that A did own the note)
2 Kiernan v. Kratz. 42 Or. 474; 69 Pac. 1027; 70 Pac. 506.
3 Farnham v. Chapman, 61 Vt. 395; 18 Atl. 152.
1 Hughes v. Fisher, 10 Colo. 383; 15 Pac. 702; Clarke v. Palmer, 129 Mass. 373; Bice v. Building Co.. 96 employee's out of wages due the latter in the former's hands,2 as where A promises B to pay C's board to B out of C's wages due from A3 is not within the statute. So if C transfers property to A to be used in paying C's debt to B, A's promise to B to make such use of the proceeds of the property is not within the statute.4 So where A owns property for the improvement of which he has let a contract to C, and C has employed B, and A promises to pay B out of funds owing by him to C, A's promise is not within the statute.5 If C has a lien on B's property to secure his debt, C's contract with A whereby he waives his lien and allows A to sell the property, and A agrees to pay C's debt out of such proceeds is not within the statute.6 If A is protected by a mortgage given by C as indemnity his promise to pay C's debt to B is held not within the statute,7 and A's promise to B that A will get a mortgage from C to protect B against liability as surety both on the debt in question and on a former debt, is held not to be within the statute.8 In some jurisdictions this proposition must be stated with the qualification that if the original liability of C is extinguished A's promise is not within the statute of frauds, but if C's liability remains, A's promise is within the statute.9 If A has C's property in his hands, without any authority from C to expend it in paying C's debts, A's promise to B to pay C's debt is within the statute.10
Mich. 24; 55 N. W. 382; Dibble v. De Mattos, 8 Wash. 542; 36 Pac. 485.
2Hefferlin v. Karlman, - Mont. -; 74 Pac. 201.
3 Baldwin Coal Co. v. Davis, 15 Colo. App. 371; 62 Pac. 1041.
4Melntire v. Schiffer, 31 Colo. 246; 72 Pac. 1056.
5 Bice v. Building Co., 96 Mich. 24; 55 X. W. 3S2; Dibble v. De Mattos. 8 Wash. 542; 36 Pac. 485.
6 Simpson v. Carr (Ky.), 76 S. W. 346.
7 Chapline v. Atkinson, 45 Ark. 67; 55 Am. Rep. 531.
8 Resseter v. Waterman, 151 111. 169; 37 X. E. 875; reversing 45 111. App. 155, and citing Bushnell v. Beavan. 1 Bing. N. C. 103.
9 West v. Grainger, - Fla. -; 35 So. 91; O'Connell v. Mt. Holyoke College, 174 Mass. 511: 55 N. E. 460; Bugbee v. Kendricken, 130 Mass. 4.i7: Swift v. Pierce. 13 All. (Mass.) 136; Allen v. Leavens, 26 Or. 164: 46 Am. St. Rep. 613; 26 L. R. A. 620; 37 Pac. 488; Wil-loughby v. Florence, 51 S. C. 462: 29 S. E. 242: Barto v. Phillips, 28 Wash. 4S2: 68 Pac. 895.
10 Dilts v. Parke. 4 X. J. L. 219.