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.
265; Whitesell v. Heiney, 58 Ind. 108; Comstock v. Morton, 36 Mich. 277; Randall v. Kelsey, 46 Vt. 157; Pratt v. Bates, 40 Mich. 37; Oli-phant v. Patterson, 56 Pa. St. 368; Pike v. Brown, 7 Cush. 136; Clapp v. Lawton, 31 Conn. 95; Bexar Building Assoc, v. Newman, 25 S. W. Rep. (Tex.) 461; Wood v. Moriarty, 15 R. I. 518; Poole v. Hintrager, 60 Iowa 180; Windell v. Hudson, 102 Ind. 521; Turpie v. Lowe, 114 Ind. 37; Leake v. Ball, 116 Ind. 214; Williams v. Rogers, 14 Bush (Ky.) 776; McGraw v. Franklin, 2 Wash. 17. See Hoile v. Bailey, 58 Wisc. 434; Clinton Bank v. Studemann, 74 Iowa 104. But see Fehlinger v. Wood, 134 Pa. St. 517.
1 Center v. McQuesten, 18 Kansas 476.
2 Brown v. Hazen, 11 Mich. 219.
3 Lord Chief Baron Skynner in Rann v. Hughes, 7 T. R. 350, note, where the suggestions of Mr. Justice Wilmot in Pillans v Van Mierop, 3 Burr. 1003, are noticed and rejected. It is not necessary to cite from the multitude of subsequent cases to the same effect. They are alluded to in this and the following sections on the same topic.
§ 190. The general rule that forbearance by the creditor is a sufficient consideration for a guaranty of the debt is abundantly settled,2 and it clearly includes any kind of indulgence by which his remedy is postponed, as for instance the adjournment of the trial to a later day.3 It appears also to be the better opinion that such postponement need not be for a specific length of time, but that an agreement to postpone indefinitely, with proof of actual forbearance for a reasonable term, will be sufficient.4 A mere agreement not to push an execution, however, has been held to be no consideration in the nature of forbearance; the court apparently regarding the expression as too vague to impose any duty whatever on the creditor.5 And, of course, where the creditor has not the legal right to sue at any time during which he promises to forbear suit, his promise is no consideration,6 though it might be otherwise, and a written guaranty enforced, if the right of action should enure in the interim and the debtor should continue to avail himself of the original promise. In all cases there must be an agreement by the creditor to forbear; proof of his having done so in point of fact will not suffice.7
1 A parol guaranty of the debt of another in consideration of forbearance is void under the statute. See Gump v. Halberstadt, 15 Oregon 356; Watson v. Randall, 20 Wendell (N. Y.) 201.
2 See the cases cited below. And that it applies equally in cases of promises by executors and administrators. See Rann v. Hughes, 7 T. R. 350, note: Farish v. Wilson, Peake, 73; Forth v. Stanton, 1 Saund. 210; Barberr. Fox, 2 Saund. 136; Philpot v. Briant, 4 Bing. 717; Goring v. Goring, Yelv. 11. note 2 (Metcalfe's ed.); Pratt v. Humphrey, 22 Conn. 317; Harrington v. Rich, 6 Vt. 666; Taliaferro v. Robb, 2 Call (Va.)258.
3 Stewart v. McGuin, 1 Cowen (N. Y.) 99.
4 The rule is so laid down by Lord Hobart in Mapes v. Stanley, Cro. Jac. 183. See also Elting v. Vanderlyn, 4 Johns. (N. Y.) 237; Thomas v. Croft, 2 Rich. (S. C.) Law 113. But see Sage v Wilcox, 6 Conn. 81.
5 M'Kinney v Quilter. 4 McCord (S. C.) 409.
6 Martin v. Black, 20 Ala. 309.
7 Mecorney v. Stanley, 8 Cush. (Mass.) 85; Walker v. Sherman, 11
§ 191. But although a written guaranty, like every other legal contract, requires a consideration for its support, it does not necessarily require a separate and special one, passing directly between the plaintiff and the defendant. Chancellor Kent (then Chief Justice) took occasion, in the case of Leonard v. Vredenburgh,1 to divide considerations of guaranties into three classes; the first of which is where the defendant's promise, though collateral to the principal contract, is made at the same time with it, and becomes an essential ground of the credit given to the principal or direct debtor, and here, he says, the same consideration which supports the principal debtor's obligation, supports also that of his guarantor. And to this extent, he adds, he can understand the observation of Lord Eldon, that "the undertaking of one man for the debt of another does not require a consideration moving between them,"2 meaning, no separate consideration. His second class is, where "the collateral undertaking is subsequent to the creation of the debt and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an immediate respect to such liability, for the consideration for the original debt will not attach to this subsequent promise." As to the first class, the rule, as stated, is undoubtedly correct.3 As to the second, to apprecration which would suffice to take a guaranty of a pre-existing debt out of the statute, would suffice to support it if put in writing. And it is also held that where there is already a past debt, the giving of a new credit to the same party will be a good consideration to support a guaranty of both the new and the old debt.1
Met. (Mass.) 170; Breed v. Hillhouse, 7 Conn. 523; Sage v. Wilcox, 6 Conn. 81; Crafts v. Beale, 11 C. B. 172; Manter v. Churchill, 127 Mass. 31.
1 Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29.
2 Minet, ex parte, 14 Ves. 190.
3 Rabaudr. D'Wolf, 1 Paine (C.C.) 580; Larson v.Wyman, 14 Wend. (N. Y.) 246; Townsley v. Sumrall, 2 Pet. (U. S.) 170; Nelson v. Boyn-ton, 3 Met. (Mass.) 396; Simons v. Steele, 36 N. H. 73; Moses v. Lawrence County Bank, 149 U. S. 298. Leonard v. Vredenburgh itself presented the same point, to which it is therefore an authority, and a most respectable one. The writer, however, cannot but remark, that if the Chief Justice had on that occasion refrained from passing any expression of opinion upon the other questions alluded to in the text, much hend its full purport, we must notice also the third class mentioned by the Chancellor, namely, where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties; in which case, he says, the promise is not within the statute at all. This last doctrine will be the subject of particular examination hereafter. But we remark here that, considering both together, the principle intended to be laid down clearly is, that the only consideration which will support a written guaranty of a pre-existing debt, without taking the guaranty out of the statute altogether (a case with which we have at present nothing to do), is such a one as has an immediate respect to that debt. This rule, thus narrowly stated, is certainly open to much doubt. If admitted, it would seem that forbearance on the part of the creditor to enforce his demand against the original debtor, which we have just seen is a sufficient consideration to support a written guaranty of it, must be the only such consideration. To have immediate respect to the original debt, the consideration passing from the creditor must apparently be, either that the debt is forborne for a time or that it is entirely released; in which latter case it is clear that the defendant's promise is not collateral to, but a substitute for, the original debtor's liability, and not within the statute at all. It is not, however, necessary in this place to say more than that some consideration, beyond that upon which the original credit was granted, must certainly appear in order to support the guaranty, though put in writing, if made subsequently to the creation of the original debt. To this extent there is entire uniformity in the decisions.1 Of course, any considof the existing perplexity on questions of guaranties within the statute might have been avoided. Highland v. Dresser, 35 Minn. 345.