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.
What form of words shows an intention to assume a primary liability for the debt in question cannot be determined in advance by arbitrary rules. Promises to "see that B is paid,"1 that "B will get his pay,"2 to "see him through," referring to the original debtor,3 or that "whatever sum should become due should be paid by " C,4 are held to import a promise to pay the debt of another.
On the other hand, there are many authorities which hold that a promise to "see that B is paid" is not necessarily a promise to answer for the debt of another, but may be a promise incurring primary liability.5 These are cases where from the entire transaction, including the relationship of the various parties to the transaction, the court found that the real intention of the parties was to incur a primary liability.6
A promise to "pay"7 or to "assume"8 a certain obligation ordinarily imports a primary obligation. A promise to "pay and guarantee " C's debt has been held to create liability to pay one's own debt.9
On the other hand, a promise to "pay B if C does not " imports a liability dependent on the debt of another.10 So a prom-
1 Jenkins, etc., Co. v. Lundgren, 85 111. App. 494; Butters, etc., Co. v. Vogel, 130 Mich. 33; 89 N. W. 560; Garrett-Williams Co. v. Ham-ill, 131 N. C. 57; 42 S. E. 448; Birchall v. Neaster, 36 O. S. 331; Lewis v. Mfg. Co., 156 Pa. St. 217; 27 Atl. 20.
2 Fuller, etc., Co. v. Houseman, 117 Mich. 553; 76 N. W. 77.
3Malone v. Ice Co., 88 Wis. 542; 60 N. W. 999.
4 Harris v. Harris, 9 Colo. App. 211; 47 Pac 841.
5 Davis v. Patrick. 141 U. S. 479; Berkowsky v. Viall. 66 111. App. 349; Phelps v. Stone, 172 Mass. 355; 52 N. E. 517; Amort v. Chis-tofferson, 57 Minn. 234; 59 N. W. 304; Oshorn v. Emery, 51 Mo. App.
408; Raabe v. Squier, 148 N. Y. 81; 42 N. E. 516; Meldrum v. Kenefick, 15 S. D. 370; 89 N. W. 863.
6 In Davis v. Patrick, 141 U. S. 479, 489, the court said: "The real character of a promise does not depend altogether upon the form of expression but largely on the situation of the parties; and the question always is, what the parties mutually understood by the language, whether they understood it to be a direct or a collateral promise."
7 Herendeen Mfg. Co. v. Moore, 66 N. J. L. 74; 48 Atl. 525.
8 Schultz v. Babcock, 64 111. App. 199.
9 Packer v. Benton, 35 Conn. 343; 95 Am. Dec. 246.
10 Warner v. Willoughby, 60 ise "if he fails to pay I will " has been held a promise to pay the debt of another.11 An offer "I will pay this debt when it comes due," accepted "very well, I will take you, then, in your husband's place," has been held a promise to pay the debt of another.12