This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
2 First National Bank of Plattsburg v. Sowles, 46 Fed. Rep. 731; St. John v. Hendrickson, 81 Ind. 350. See Ball v. Farley, 81 Ala. 288; Medbury v. Watson, 6 Mete. (Mass.) 246; Kimball v. Comstock, 14 Gray (Mass.) 508; Norton v. Huxley, 13 Gray (Mass.) 285; Bush v. Sprague, 51 Mich. 41. It does not apply to representations made by the defendant in regard to his own credit, property, etc. French v. Fitch, 67 Mich. 492.
1 Norton v. Huxley, 13 Gray (Mass.) 285. And see Kimball p. Com-stock, 14 Gray (Mass.) 508; Clark v. Dunham Lumber Co., 86 Ala. 220; Daniel v. Robinson, 66 Mich. 296.
2 Gallager v. Brunei, 6 Cowen 346. And see Shaw v. Stine, 8 Bosw. (N. Y.) 157; Smith v. Harris, 2 Stark. 47. In Massachusetts it was held that the warranty of the genuineness of the signatures in a note, by the person offering it for discount at a bank, need not be in writing. Cabot Bank v. Morton, 4 Gray, 156.
§ 184. It does not save a case from the operation of this statute, that the procuring of credit, etc. for a third party-was not the only, or the principal purpose with which the representation was made. For instance, a fraudulent representation by the defendant, that a third party was of good credit, although made for the purpose of enabling the third party to pay his debt to the defendant, has been held to be within the statute, and to require a writing; the plaintiff having been by such representation induced to sell such third party merchandise on credit.2 And where an insurance agent made representations as to the credit of an insurance company, in which he thereby induced the plaintiff to effect an insurance, although it was alleged, and evidence offered to show, that the defendant's motive in making the representations was to secure his commissions as agent; yet as that profit would accrue only in consequence of the credit given to the company, the case was held to be within the statute.3
1 Adams v. Anderson, 4 Harr. & J. 558. And see Hodgin et al. v. Bryant, 114 Tnd. 401. See also Lahay p. City National Bank, 15 Col. 339.
2 Kimball v. Comstock, 14 Gray (Mass.) 508. And see Mann v. Blan-chard, 2 Allen (Mass.) 386; Cook v. Churchman, 104 Ind. 141; Hodgin v. Bryant, 114 Ind. 401; Bates v. Youngerman, 142 Mass. 120.
3 Wells v. Prince, 15 Gray (Mass) 562; McKinney v. Whiting, 8
§ 184 a. An action will lie for a false representation in writing as to the character and circumstances of a third person, whereby the plaintiff was induced to give him credit, although he might have been in part influenced by subsequent oral representations of the defendant; if the jury are satisfied that the plaintiff was substantially induced, by the written representation, to give the credit.1
§ 184 b. Although the action be not brought in terms upon the defendant's representation as to the third party's credit, etc., yet if proof of such representation be essential to the action, the statute applies.2 A case in the Queen's Bench was assumpsit for money had and received; the plaintiff had been induced by the defendant's misrepresentations as to the credit of a third party to supply her with goods, from the sales of which she had paid a debt of her own to the defendant; and the plaintiff sought to recover under this form of action, the sums so received by the defendant. It was held that he could not recover. Lord Denman, C. J.: "The plaintiff says, the action is not upon the representation, but for money had and received; that the representation is a mere medium of proof, the case being that a fraud was committed, in the course of which this representation was made, and that the produce of the goods obtained by such fraud belongs to the plaintiff. But the only fact on which the case of fraud rested at the time of offering the evidence was, that the defendant had authorized H. to give Mrs. B. a fair character." 3
Allen (Mass.) 207. But where an action is brought on account of a false representation as to the existence in fact of a corporation or copartnership, it has been held that the statute did not apply. Hess v. Culver, 77 Mich. 598; Clark v. Hurd, 79 Mich. 130.
1 Tatton v. Wade, 18 C. B. 370; Weil v. Schwartz, 21 Mo. App. 372. See pout, § 185.
2 Hunter v. Randall, 62 Me. 425.
3 Haslock v. Fergusson, 7 Ad. & E. 94. But recovery has been allowed where the plaintiff was induced to part with money by actual fraud of the defendant although the money was nominally paid to a third party, the defendant having in fact received it. Bush v. Sprague, 51 Mich. 41; Daniel v. Robinson, 66 Mich. 296.
§ 185. A question of much importance and nicety arises, in the absence of such a statute as that now under consideration, when a false and fraudulent representation as to the credit of a third person is coupled with a promise to answer for his paying the debt about to be incurred. Such was the case of Hamar v. Alexander, where the defendant represented to the plaintiff "that one C. L. was a good man, and might be trusted to any amount, and that he the said defendant durst be bound to pay for him, the said 0. L." It was objected by the defendant that the action could not be maintained for the deceit, because the injury might have arisen not from the false representation, but from the violation of the promise to pay, which was not actionable on account of the Statute of Frauds. After a verdict for the plaintiff below, and upon motion in the Common Pleas to set it aside and enter a nonsuit upon that ground, the court took time to deliberate, and finally determined that the verdict should stand. Sir James Mansfield delivered the opinion, in which, after admitting the difficulty suggested for the defence, he says: "I am far from wishing to sustain an action simply upon misrepresentation, but there never was a time in the English law, when an action might not have been maintained against the defendant for this gross fraud. . . . There is no proof that the plaintiff ever considered the defendant as his debtor, or ever called upon him for the money, or relied upon his promise in the least degree. In the next place, we must suppose every man to know the law; and if the plaintiff was acquainted with the law he must have known that the defendant's promise was worth nothing, and could have given no credit to him upon it. He cannot have considered it in any other light than as a mode of expression, by which the defendant intended more strongly to express his opinion of L.'s circumstances."1 It does not appear that any case directly involving the same point, namely, the combination of a deceit and a guaranty, has been since decided, though it has been so alluded to as to indicate that it was settled and in conformity with the decision in Hamar v. Alexander.1 It seems, then, that the question, in all such cases of deceit as to the third party's credit, accompanied by a promise to answer for him, is whether the party imposed upon by the false representation did or did not rely in addition upon the promise; for if not, but the sole credit was given to the third party by reason of the false representation as to his responsibility, then an action will lie for the deceit; and that this is a question of fact to be determined upon all the circumstances of the case.