5 Scotson v. Pegg, 6H.&N. 295 (1861).
6 Richardson v. Gosser, 26 Penn. St. 335 (1855).
7 Gwynne v. Heaton, 1 Bro. C. C. 5, and cases cited in the note by Mr.
§ 551. Where a benefit is done to a third person, at the request of the promisor, it is sufficient to support his promise. As, for instance, where a person contemporaneously becomes surety for the debts, or for the performance of certain duties, or covenants, of third persons, or assumes any species of collateral obligation, or guaranty, he renders himself liable thereupon. The consideration, which supports this contract, is the favor which the surety receives from a compliance with his express or implied request or desire, that credit should be given to the principal.3 Any person may render himself liable as surety to a third person, without the knowledge of the principal; nor is it necessary that there should be any consideration moving directly between the principal and surety;1 for so long as there is some consideration for the promise between the immediate parties, it is binding. But unless the promise be contemporaneous with the original debt, and constitute the inducement thereto, it will not be binding.2 A guaranty, therefore, of a debt already contracted, or of a contract already made, will not be binding, for want of consideration.3 Where there is a promise to pay the pre-existing debt of another person to his creditor, there must be a new consideration to support it, for the original consideration of the principal's contract cannot be so extended as to support the new promise.4
Perkins; Heathcote v. Paignon, 2 Bro. C. C. 167; Osgood v. Franklin, 2 Johns. Ch. 23; s. c. 14 Johns. 527; George v. Richardson, Gilmer, 230; White v. Damon, 7 Ves. 30; Cathcart v. Robinson, 5 Peters, 264; Coles v. Trecothick, 9 Yes. 234;'M,Kinney v. Pinckard, 2 Leigh, 149; Seymour v. Delancy, 3 Cow. 445; Sarter v. Gordon, 2 Hill, Ch. 126; Moffat v. Winslow, 7 Paige, 124; Copis v. Middleton, 2 Madd. 410; Griffith v. Sprat-ley, 1 Cox, 383; post, § 228; Follett v. Rose, 3 McLean, 332; Robinson v. Schly, 6 Ga. 515; Gasque v. Small, 2 Strob. Eq. 72; Kidder v. Chamberlin, 41 Vt. 62 (1868); Church v. Chapin, 35 Vt. 223 (1862).
1 Ibid.; James v. Morgan, 1 Lev. Ill; Hough v. Hunt, 2 Ohio, 495; Williams v. Powell, 1 Ired. Eq. 460; Hardeman v. Burge, 10 Yerg. 202; Butler v. Haskell, 4 Desaus. 651; Udall v. Kenney, 3 Cow. 590; Wormack v. Rogers, 9 Ga. 60; Johnson v. Dorsey, 7 Gill, 269; Edwards v. Burt, 2 De G. M. & G. 55; 15 Eng. Law & Eq. 435; Judge v. Wilkins, 19 Ala. 765.
2 Com. Dig. Action on the Case, Assumpsit (B.), and cases cited, supra; Milnes v. Cowley, 8 Price, 620; Hubbard v. Coolidge, 1 Met. 93; Stewart v. The State, 2 Harr. & Gill, 114; Johnson v. Titus, 2 Hill, 606. See post, § 483, 484.
3 Brown v. Garbrey, Gouldsb. 94; Kirkby v. Coles, Cro. Eliz. 137; Stadt v. Lill, 9 East, 348; Leonard v. Vredenburgh, 8 Johns. 29; Hunt v. Adams, 5 Mass. 362; Howe v. Ward, 4 Greenl. 195.
§ 552. In England, it was formerly the doctrine that a stranger to the consideration of a contract made for his benefit, might maintain an action upon it if he stood in such near relationship to the party from whom the consideration proceeded that he might be considered a party to the consideration. But this doctrine has recently been overruled; and it is now established in that country that no stranger to the consideration can take advantage of a contract, though made for his benefit. The consideration must move from the party entitled to sue upon the contract.5 In America, the decisions have been conflicting on the point; but the tendency of the courts is in the same direction.6
1 Minet's Case, 14 Ves. 189; Morley v. Boothby, 3 Bing. 113. In this case, Best, C. J., said: "No court of common law has ever said that there should be a consideration directly between the persons giving and receiving the guaranty. It is enough, if the person for whom the guarantor becomes surety has benefit, or the person to whom the guaranty is given suffer inconvenience, as an inducement to the surety to become guaranty for the principal debtor."
2 Payne v. Wilson, 7 B. & C. 423; D'Wolf v. Rabaud, 1 Peters, 476; Mecorney v. Stanley, 8 Cush. 85.
3 Leonard v. Vredenburgh, 8 Johns. 29; D'Wolf v. Rabaud, 1 Peters, 476; Bailey v. Freeman, 11 Johns. 221; Hunt v. Adams, 5 Mass. 358; Flagg v. Upham, 10 Pick. 148; Mecorney v. Stanley, 8 Cush. 85; post, § 146.
4 Packard v. Richardson, 17 Mass. 129; Thacher v. Dinsmore, 5 Mass. 301; 1 Saund. 211, and note; Bixler v. Ream, 3 Penn. 282.
5 Tweddle v. Atkinson, 1 Best & S. 393 (1861). " It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party for the purpose of being sued." Ibid., per Crompton, J.
6 Exchange Bank v. Rice, 107 Mass. 37 (1871); Griffith v. Ingledew, 6 Serg. & R. 429, 442; Metcalf, Contracts, 208.
§ 553. It is not, however, absolutely necessary, in order to constitute a sufficient consideration to a promise, that a benefit should accrue to the promisor; for if that promise be made as the inducement to a subsequent engagement by a third person with the promisee, it will be a sufficient consideration. Thus, in the case of a letter of credit given by A. to B., the person who, on the faith of such letter, trusts B. has his remedy against A., although no benefit accrue to A. as the consideration of his promise.1 So, also, if one person should promise to subscribe to pay a certain sum, provided a certain third person would pay a particular sum, this promise would be founded on a sufficient consideration, if such third person should, in consequence thereof, subscribe such sum.2 So, also, all subscriptions, if they are at first gratuitous promises, and not binding, become binding, whenever the subscriber knows that outlays or engagements are made or liabilities assumed in consequence thereof.3 So, also, all subscriptions made on condition that certain acts shall be done, are binding, if such acts be done.4 And this knowledge would be implied from circumstances; and express notice need not be proved.5