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.
3 §§ 135, et seq.
4 Dexter v. Blanchard, 11 Allen (Mass.) 365; Downey v. Hinchman, 25 Ind. 453; Clark v. Levi, 10 N. Y. Leg. Obs. 1S4; King v. Summit, 73 Ind. 312. The cases of Harris v. Huntbach, 1 Burr. 71, Roche v. Chaplin,
§ 157. Unless some liability or duty of a third person already exists, or is to be created, there cannot, of course, be an agreement to answer for the debt, default, or miscarriage of another. This was illustrated in the case of Read v. Nash, where one Tuack had brought an action of assault and battery against one Johnson. The cause being at issue, and the record entered and just coming on to be tried, the defendant Nash, who was then present in court, in conideration that Tuack would not proceed to trial but would withdraw his record, undertook and promised to pay him fifty pounds and costs. Tuack, relying upon this promise, did withdraw his record, and no farther proceeding was had in the cause. Tuack being dead, Read, his executor, brought the present action, and the question was whether Nash's promise was a promise to answer for the debt, default, or miscarriage of Johnson. It was unanimously held by the judges of the Queen's Bench that it was not; and Lee, C. J., delivering the opinion of the court, said: "Johnson was not a debtor; the cause was not tried; he did not appear to be guilty of any debt, default, or miscarriage; there might have been a verdict for him if the cause had been tried, for any thing we can tell; he never was liable to the particular debt, damages, or costs." 1 But where the defendant had verbally promised the
1 Bailey (S. C.) Law, 419, and Chapin v. Lapham, 20 Pick. (Mass.) 467, can be explained without opposition to the doctrine stated in the text, and are so explained in Mr. Throop's treatise on the Validity of Verbal Agreements, §§ 259-264.
1 Read v. Nash, 1 Wils. 305. See Bray v. Freeman, 2 Moore, 114, where, however, the court seem to have applied Read v. Nash somewhat freely. See also Griffin v. Derby, 5 Greenl. (Me.) 476; Sampson v. Swift, plaintiff to pay the damages sustained by reason of a third person's having wrongfully and without the license of the plaintiff ridden his horse and thereby caused its death, in consideration that he would not bring an action against the third person; it was held, by the Court of Queen's Bench, that the defendant's promise was within the statute, and that an action upon it could not be sustained. The court distinguished the case from Read v. Nash, because here it did appear as matter of fact that the third person had rendered himself liable.1 The general principle is further illustrated by the cases where the plaintiff, on the defendant's verbal order, has rendered services or furnished goods to some third person designated by him. In such cases, where the plaintiff has dealt with the defendant alone, there is no duty or liability but that of the defendant, and his promise to pay for the work or the goods is manifestly original and valid.2
11 Vt. 315; Peck v. Thompson, 15 Vt. 637; Jepherson v. Hunt, 2 Allen (Mass.) 417; Merrill v. Englesby, 28 Vt. 150; Walker v. Norton, 29 Vt. 226; Douglass v. Jones, 3 E. D. Smith (N. Y.) 551; Johnson v. Noonan, 16 Wise. 687; Thompson v. Blanchard, 3 N. Y. 335; Ingraham v. Strong, 41 111. App. Ct. 46; Johnson v. Hoover, 72 Ind. 395; Bellows v. Sowles, 57 Vt. 164; Crowder v. Keys, 91 Ga. 180; Davis v. Tift, 70 Ga. 52; Abbott v. Nash, 35 Minn. 451; Snell v. Rogers, 70 Hun (N. Y.) 462; Buchanan v. Moran, 62 Conn. 83.
§ 157 a. It has been held by the Queen's Bench, that if at the time of the contract between the plaintiff and the defendant they supposed a third person to be liable to the plaintiff, although it should afterward turn out that he was not, the statute would apply to the defendant's promise. But this judgment was reversed in the Exchequer Chamber, and the reversal sustained in the House of Lords, where Lord Selborne says: "There can be no suretyship unless there be a principal debtor, who of course may be constituted in the course of the transaction by matters ex post facto, and need not be so at the time, but until there is a principal debtor there can be no suretyship. Nor can a man guarantee anybody else's debt, unless there is a debt of some other person to be guaranteed." In the Exchequer Chamber and the House of Lords, it was considered that the Queen's Bench had misapprehended the state of the evidence, and that it appeared, or at least the jury would be warranted in finding, that the plaintiff and defendant at the time of making their bargain knew that the third party, a certain local Board of Health, had not become liable; only it was known that it might thereafter become liable; but the plaintiff meanwhile went directly to work on the strength of the defendant's promise to "see him paid;" and these facts were held material, among others, to be put to the jury on the question, whether the plaintiff did not give credit solely to the defendant, although the words used naturally imported a collateral undertaking.1
1 Kirkham v. Marter, 2 Barn. & Ald. 613; Duffy v. Wunsch, 42 N. Y. 243
2 Buckmyr v. Darnell, 2 Ld. Raym. 1085; Sanborn v. Merrill, 41 Me. 467; Sutherland v. Carter, 52 Mich. 151; Peyson v. Conniff, 32 Neb. 269. See Walker v. Hill, 119 Mass. 249, per Gray, C. J.; Chicago & Wilmington Coal Co. v. Liddell, 69 111. 639. See post, § 197. In Walker v. Norton, 29 Vt. 226, the defendant's promise was to reimburse the plaintiff for expense to be incurred by him in hiring a band, in the event that a voluntary subscription to be made for that purpose should be insufficient, and it was held that the statute did not apply.
§ 158. It is not necessary that the obligation for the performance of which the guaranty is given should be express; it is sufficient if it be implied by law. Such was the decision of Lord Ellenborough, in a case where the miscarriage provided against was the violation of the navigation laws;2 and, indeed, it would seem to be impossible by any other rule ever to bring a case of tort within the statute, the obligation resting on the third person in such a case arising, of course, by implication. It has been said in the Supreme Court of Massachusetts that there might be instances in which a plaintiff who, for the benefit of a third person, had undertaken an onerous obligation at the defendant's verbal request, would have a remedy against him, notwithstanding that such third person was also liable incidentally, and upon a promise implied by law.3 The remark was admitted to be not necessary to the decision, which went upon an entirely distinct ground, namely, that the credit was given solely to the defendant; moreover, of the two cases referred to in support of it, one does not seem to justify it, and the other has been substantially overruled.1 They belong, however, to a class of decisions important to be examined, as having been assumed to afford the foundation for a doctrine that a promise to indemnify is not within the statute.