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.
1 Wyman v. Smith, 2 Sandf. (N. Y.) 331; Hitchcock v. Lukens, 8 Porter (Ala.) 333; Andrews v. Smith, Tyrw. & G. 173; Loomis v. New-hall, 15 Pick. (Mass.) 159; Todd v. Tobey, 29 Me. 219; Stephens v. Pell, 2 Cromp. & M. 710; Corbin v. McChesney, 26 111. 231; Lucas v. Payne, 7 Cal. 92; Nelson v. Hardy, 7 Ind. 364; Consociated Presbyterian Society of Green's Farms v. Staples, 23 Conn. 544; Stoudt v. Hine, 45 Pa. St. 30; Clymer v. De Young, 54 Pa. St. 118; McLaren v. Hutchinson, 22 Cal. 187; May v. Nat. Bank of Malone, 9 Hun (N. Y.) 108. Peck v. Goff, 25 Atl. Rep. (R. I.) 690; Smith v. Exchange Bank, 110 Pa. St. 508; Woodruff v. Scaife, 83 Ala. 152; Ledbetter v. McGhees, 84 Ga. 227; Mason v. Wilson, 84 N. C. 51; Milliken v. Warner, 62 Conn. 51; Tuttle v. Armstead, 53 Conn. 175. This principle seems to have been lost sight of in Willard v. Bosshard, 68 Wisc. 454. But see Clark v. Jones, 85 Ala. 127. See post, § 206.
2 McKeenan v. Thissel, 33 Me. 368; Stilwell v. Otis, 2 Hilton (N. Y.) 148; Calkins v. Chandler, 36 Mich 320; Walden v. Karr, 88 111.49; Wright v. State, 79 Ala. 262; Hughes v. Fisher, 10 Col. 383; Bice v. Marquette Building Co., 96 Mich. 21; American Lead Pencil Co. v. Wolfe, 30 Fla. 360.
1 Hilton v. Dinsmore, 21 Me. 410; Cameron p. Clark, 11 Ala. 259; Laing v. Lee, Spencer (N. J.) 337; Goddard v. Mockbee, 5 Cranch (C. C.) 666; Stanley v. Hendricks, 13 Ired. (N. C.) 86; Lee v. Fontaine, 10 Ala. 755; McKenzie v. Jackson, 4 Ala. 230; Fullam v. Adams, 37 Vt. 391; Wright v. Smith, 81 Va. 777; Martin v. Davis, 80 Wisc. 371; Mitts v. McMorran, 64 Mich. 664; Cock v. Moore, 18 Hun (N. Y.) 31; Bailey v. Bailey, 56 Vt. 398; Barnett v. Pratt, 37 Neb. 349; Watkins v. Sands, 4 Brad. (111. App.) 207; Hamill v. Hall, 35 Pac. Rep. (Col.) 927; Locke v Humphries,60 Ala. 117. But see Jackson v. Rayner, 12 Johns. (N. Y.) 291; Belknap v. Bender, 75 N. Y. 446: Ackley v. Parmenter, 98 N. Y. 206. These cases establish, for the State of New York, an important limitation of the rule stated in the text. They hold (particularly the two last in which the subject is very fully considered) that where the defend-ant takes property of the third party for the purpose of paying his debt to the plaintiff from the proceeds, and at the same time verbally promises the plaintiff to pay it. the duty to pay does not arise until such proceeds have been realized, and that any action on the defendant's verbal promise before that time, is barred by the Statute of Frauds. In Belknap v. Bender the Court expressed obiter the further opinion that even after the conversion of the property, the defendant is bound to pay so far only as there may be proceeds applicable to that purpose. See Andern v. Ronney, 5 Espinasse, 254.
2 Quin v Hanford. 1 Hill (N. Y.) 82.
3 Prather v. Vineyard, 4 Gilm. (111.) 40; Drakely v. Deforest, 3 Conn. 272.
4 Lippincott v. Ashfield, 4 Sandf. (N. Y.) 611. But see Shaaber v Bushong, 105 Pa. St. 514.
§ 188. The statute applies to promises to pay the debt of another; and this is construed by the courts of both countries to mean the debt of some person other than the immediate parties to the contract of guaranty and owed to one of those parties.3 A verbal promise, therefore, to the debtor himself, to pay, or to furnish him the means of paying, his own debt, is binding notwithstanding the statute. It is substantially the same thing as promising to pay him a sum of money to the same amount.4 Upon a familiar principle of law it has also been held that such a promise may be sued upon by the creditor.1 The rule, however, is to be understood with reference only to cases where the debtor is plaintiff. A promise to him that his debt to his creditor shall be paid, may, upon a familiar principle of law, be sued upon by the latter where proper privity on his part is shown, and in such case it must be proved by written evidence.2
1 Dilts v. Parke, 1 South. (N.J.) 219; Simpson v. Nance, 1 Speers (S. C.) Law 4; State Bank at New Brunswick v. Mettler, 2 Bosw. (N. Y.) 392; Weyer v. Beach, 14 Hun (N. Y.) 231; Hughes v. Lawson, 31 Ark. 613.
2 Dock v. Boyd, 93 Pa. St. 92.
3 Eastwood v. Kenyon, 11 Ad. & E. 438. Mr. Smith, in his Lectures on the Law of Contracts, remarks that it is a singular thing that this question never should have received a judicial decision until so recent a case (1840). In point of fact it was determined by the Supreme Court of Massachusetts twenty years before. Colt v. Root, 17 Mass. 229. It is is now firmly settled by numerous cases. Hargreaves v. Parsons, 13 Mees. & W. 561; Reader v. Kinghan, 13 C. B. N. S. 344; Mersereau v. Lewis, 25 Wend. (N. Y.) 243; Weld v. Nichols, 17 Pick. (Mass.) 538; Barker v. Bucklin, 2 Denio (N. Y.) 45; Hardesty v. Jones, 10 Gill & J. (Md.)404; Pratt v. Humphrey, 22 Conn. 317: Preble v. Baldwin, 6 Cush. (Mass.) 549; Pike v. Brown, 7 Cush. (Mass ) 133; Alger v. Scoville, 1 Cray (Mass.) 391; Flemm v. Whitmore, 23 Mo. 430; Fiske v. McGregory, 34 N. H. 414: Soule v. Albee, 31 Vt. 142; Aldrich v. Ames, 9 Gray (Mass.) 76; North v. Robinson, 1 Duvall (Ky.) 71; Howard v. Coshow, 33 Mo. 118; Morin v. Martz, 13 Minn. 191. See Patton v. Mills, 21 Kansas * 163; Teeters v. Lamborn, 43 Ohio St. 144; Resseter v. Waterman, 37 N. E. Rep. (11l.) 875.
4 Hardesty v. Jones, 10 Gill & J. (Md.) 404; Alger v. Scoville. 1 Gray (Mass ) 401; Hubon v. Park, 116 Mass. 541; Goetz v. Foos, 14 Minn.
§ 189. The promise which the statute contemplates, like any other promise which is to be binding in law, must be founded upon a sufficient consideration moving between the parties. The words of the statute are negative, that the defendant shall not be liable unless his promise is in writing; and the converse is not true, that when in writing he shall be liable. It is still to be tried and judged as all other agreements, merely in writing, are by the common law.3 There is, of course, no necessity for discussing the sufficiency of different kinds of consideration to support such a promise, the rule of law that any benefit to the one party or any injury to the other will suffice, being in general terms entirely applicable. One species of consideration, however, occurs so frequently in such cases as to be worthy of particular notice; namely, the engagement of the creditor to forbear enforcing his pre-existing demand, whereupon the defendant promises to pay it or see it paid.1