§ 1113. The English Statute of Frauds enacts that "no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The general provisions of this statute have been adopted throughout the United States.
§ 1114. This clause refers not only to promises to answer for the default and miscarriage of another person arising out of his contract, but also for any default or miscarriage arising out of his tort; 1 as where A. had, without leave, wrongfully ridden to death a horse belonging to B., and C. orally guaranteed the payment of a sum of money to B. in satisfaction of the injury by A., in consideration that B. would not bring his action against A., it was held to be a promise within the purview of this clause in the statute, which should have been in writing.2
§ 1115. The statute only applies to collateral engagements; that is, to engagements upon which a party is only condition' ally liable, upon the default of some other person, who is solely liable originally. It was formerly held, that a promise made before the delivery of goods supplied to a third party was an original undertaking, and not within the statute, which applied only to promises made after the delivery of goods. But this distinction is now exploded, as wholly-unsound; and whether the promise be made as a guaranty of a subsisting debt or in reference to a future debt, it is equally within the statute, provided that the guarantor is not to be looked to as the original debtor.1 But if the guarantor be in any manner a party to the original promise, and liable coex-tensively with the other party in _the first instance, and not upon his default alone, the statute does not apply. The questions are, to whom did the guarantee originally look for the primary fulfilment of the engagement ? And if there be no default, who is the person solely liable ? If the contract of the guarantor be separate and incidental, and conditioned upon the default of the principal party, the statute applies; and otherwise it does not.2 If, therefore, a promise be made to pay an already existing debt, or to answer in damages for an already incurred liability of default, the undertaking must be founded upon a new consideration, and care must be taken not to assume a primary liability, or the contract will become an original debt, and, therefore, not within the terms of the statute.3 The mere fact that the promise is to pay a debt due from a third party, or to pay for goods to be furnished to a third party, does not prove that the promise does not create an original liability, since it is perfectly competent for a man to assume, on sufficient consideration, to pay the debt of another. Thus, a promise by A. to B. to pay a debt due from B. to C. is not a promise to pay the debt of another, within the Statute of Frauds.1 It has been said, that if two come into a shop, and one buys, and the other, to gain him credit, promises the seller, "If he does not pay you, I will," this is a collateral undertaking, void without writing by the statute; but if he says, "Let him have the goods; I will be your paymaster; " or "I will see you paid; " this is an undertaking, as for himself, for which he is originally liable.2 But on the sale and delivery of goods to a purchaser, for which another promises to pay, unless the whole credit be given to the latter, his undertaking is treated as collateral, and must be in writing.3 Whether, in the particular case, the person charged intended to render himself originally responsible, is a question to be decided upon the circumstances of the case, and is matter of evidence.4 It is said that a preponderance of authority sustains the doctrine that a promise to indemnify a surety for becoming responsible for the principal, made by a third person, at whose request and upon whose credit the surety enters into his engagement, is not within the statute.1 § 1116. Any kind of written paper, which either contains the terms of the agreement, or refers to another paper of any kind by which they can be ascertained, is a sufficient "memorandum or note in writing," within the meaning of the statute.2 But it will be observed that the statute requires some note or memorandum of the "agreement," and not of the special promise. The construction given to the term "agreement" in England has been that it includes both the promise and the consideration, and that no memorandum is within the statute, unless the consideration, as well as the promise, be stated.3 Where, therefore, a guaranty was in the
1 Kirkham v. Marter, 2 B. & Ald. 613; Buckmyr v. Darnall, 2 Lord Raym. 1085; 1 Salk. 28; Green v. Cresswell, 10 Ad. & El. 453. 2 Kirkham v. Marter, 2 B. & Ald. 613.
1 Peckham v. Faria, 3 Doug. 13; Matson v. Wharam, 2 T. R. 80; Barber v. Fox, 1 Stark. 270.
2 Austen v. Baker, 12 Mod. 250; Darnell v. Tratt, 2 Car. & P. 82; Rains v. Storry, 3 Car. & P. 130; Brady v. Sackrider, 1 Sandf. 514; Car-ville v. Crane, 5 Hill, 483; Cahill v. Bigelow, 18 Pick. 369.
3 Fell on Guaranties, ch. 11, p. 31, § 16; Chase v. Day, 17 Johns. 114; Leonard v. Vredenburgh, 8 Johns. 29; Buller, N. P. 281; Kent, Coram. lect. 44, p. 122: Hunt v. Adams, 5 Mass. 358; Williams v. Leper, 3 Burr. 1886; Atkinson v. Carter, 2 Chitty, 403; Clark v. Small, 6 Yerg. 418; Eastwood v. Kenyon, 3 P. & Dav. 280; Haigh v. Brooks, 10 Ad. & El. 809; Elder v. Warfield, 7 Harr. & J. 391; Rogers v. Kneeland, 13 Wend. 114; Cahill v. Bigelow, 18 Pick. 369; Tomlinson v. Gell, 1 Nev. & P. 588; s. c. 6 Ad. & El. 564; Wood v. Benson, 2 C. & J. 94. See, also, D'Wolf v. Rabaud, 1 Pet. 476.
1 Alger v. Scoville, 1 Gray, 391; Pike v. Brown, 7 Cush. 133; Eastwood v. Kenyon, 11 Ad. & El. 446.