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.
' Roberts on Frauds, 216; Tileston v. Nettleton, 6 Pick. (Mass.) 509; Doyle v. White, 26 Me. 341; Arbuckle v. Hawks, 20 Vt. 538; Antonio v. Clissey, 8 Rich. (S. C.) Law 201; Brown v. Curtiss, 2 N. Y. 225; Booker v. Tally, 2 Humph. (Tenn.) 308; Rhodes v. Leeds, 3 Stew. & P. (Ala.) 212.
2 McCaffil v. Radcliffe, 3 Rob. (N. Y.) 445; Brown v. Harrell, 40 Ark. 429.
3 Pearce v. Blagrave, 3 Com. Law 338; Prop'rs of Upper Locks v. Abbott, 14 N. H. 157. See Mountstephen v. Lakeman, L. R. 7 Q. B. 196.
4 Smith p. Hyde, 19 Vt. 4.
1 Harrington v. Rich, 6 Vt. 666; Elder v. Warfield, 7 Harr. & J. (Md.) 391, per Buchanan, C. J. Ante, § 164.
2 Buckmyr v. Darnall, 2 Ld. Raym. 1085; 1 Salk. 27; 6 Mod.248. Lord Hardwicke, in Tomlinson v. Gill, Ambler 330, commenting on this case, remarks that the distinction taken in it "is a very slight and cobweb distinction." It is not easy to see, however, how it related to the case before him. I do not understand his Lordship to condemn the doctrine in regard to the necessity of the liability of the third party existing at the time of the defendant's promise.
§ 197. As to the liability of the person for whose benefit the promise is made, it was laid down by Mr. Justice Buller, in the case of Matson v. Wharam, 1 that if he be himself liable, at all the promise of the defendant must be in writing. If this rule be understood as confined to cases where the third party and the defendant are liable in the same way, and to do the same thing, the one as principal and the other as surety, it may be accepted as the uniform doctrine of all the cases both in England and in our own country.2 The defendant is said to come in aid to procure the credit to be given to the principal debtor.3 The question therefore ultimately is, upon whose credit the goods were sold or the money advanced, or whatever other thing done which the defendant by his promise procured to be done. If any credit at all be given to the third party, the defendant's promise is required to be in writing as collateral.4 And the rule applies equally, where there
1 Matson v. Wharam, 2 T. R. 80.
2 Barber v. Fox, 1 Stark. 270; Buckmyr v. Darnall, 1 Salk. 27; Tiles-ton v. Nettleton, 6 Pick. (Mass.) 509; Peabody v. Harvey, 4 Conn. 119; Huntington v. Harvey, 4 Conn. 124; Newell v. Ingraham, 15 Vt. 422; Cutler v. Hinton, 6 Rand. (Va.) 509; Ware v. Stephenson, 10 Leigh (Va.) 155; Noyes v. Humphreys, 11 Grat. (Va.) 636; Leland v. Creyon, 1 McCord (S. C) Law 100; Taylor v. Drake, 4 Strobh. (S. C.) Law 431; Puckett v. Bates, 4 Ala. 390; Caperton v. Gray, 4 Yerg. (Tenn.) 563; Hall v. Wood, 4 Chand. (Wisc.) 36; Price v. Chicago M. & S. P. R. R., 40 Mo. App. 189; Robertson v. Hunter, 29 S. C. 9; Ollever v. Duval, 32 S. C. 273; Simpson v. Harris, 21 Nev. 353; Dougerty v. Stone, 66 Hun (N. Y.) 498; Greene v. Latcham, 2 Col. Ct. of App. 416; McGaughey Bros. v. Latham, 63 Ga 67; Daniel v. Mercer, 63 Ga. 442; Reynolds v. Simpson, 74 Ga. 451.
3 Aldrich v. Jewell, 12 Vt. 125.
4 Anderson v. Hayman, 1 H. Black. 120; Cahill v. Bipelow, 18 Pick. (Mass.) 369; Chase v. Day, 17 Johns. (N. Y.) 114; Brady v. Sackrider, 1 Sandf. (N. Y.) 514; Elder v. Warfield, 7 Harr. & J. (Md.) 391; Conolly v. Kettlewell, 1 Gill (Md.) 260; Norris v. Graham, 33 Md. 56; Larson v. Wyman, 14 Wend. (N. Y.) 246; Darlington v. McCunn, 2 E. D Smith (N. Y.) 411; Hanford v. Higgins, 1 Bosw. (N. Y.)441; Allen v. Scarff, 1 Hilton (N. Y.) 209; Bushee v. Allen, 31 Vt. 613; Walker v. Richards, is already an existing liability of the principal, and the evidence shows that the plaintiff, by accepting the defendant as surety, does not release his claim upon the principal.1 All the cases show that it does not matter upon which of the two parties the plaintiff principally depends for payment, so long as the third party is at all liable to him to do the same thing, which the defendant has engaged to do.2 If, however, the credit is given to both jointly, as neither can be said to be surety for the other to the creditor, their engagement need not be in writing.3
§ 197 a. It has been suggested that the rule above stated requiring the defendant's special promise to be in writing, whenever the third party is liable at all, should be modified by the limitation that such liability of the third party must be "made the foundation" of the contract between the plaintiff and the defendant.1 This is one of those general expressions under which lurks great danger to the practical value of the Statute of Frauds. There are cases where the third party's liability is not the foundation of the contract between the plaintiff and the defendant, in the sense that the nature of the transaction between them is such as to throw upon the defendant an obligation to the plaintiff, independently of the fact that any third party is liable to him; and here it is true, as a matter of the legal character of the defendant's obligation, that it is not founded upon the third party's obligation; and to such cases the statute does not apply.2 But if the phrase we are considering means (as it has been taken to mean)3 that the third party's concurrent liability does not make the statute applicable if the plaintiff did not rely upon it, but relied only on the defendant's promise, such a modification of the rule cannot safely be admitted. How can it be ascertained whether or not the third party's liability was in this sense the foundation of the contract between the others? It would seem to be reducing the question of the application of the statute to the question of the state of mind of the parties, such as could never be put to a jury without substituting their judgment or conjecture for the sanction of the statute.4
39 N. H. 259; Dixon v. Frazee, 1 E. D. Smith (N. Y.) 32; Steele v. Towne, 28 Vt. 771; Hill v. Raymond, 3 Allen (Mass.) 540; Swift v. Pierce, 13 Allen (Mass.) 136; Boykin v. Dohlonde, 1 Sel. Cas. Ala. 502; Bresler v. Pendell, 12 Mich. 224; Welch v. Marvin, 36 Mich. 59; Murphy v. Renkert, 12 Heisk. (Tenn.) 397; Whitman v. Bryant, 49 Vt. 512; Read v. Ladd. Edm. (N. Y) Sel. Cas. 100; Rottman v. Fix, 25 Mo. App. 571; West v. O'Hara, 55 Wisc. 645; Weisel v. Spence, 59 Wisc. 301; Treat Lumber Co. v. Warner, 60 Wisc. 183; Langdon v. Richardson, 58 Iowa 610; Wills v. Ross, 77 Ind. 1; Hagadorn v. Lumber Co., 81 Mich. 56; Cole v. Hutchinson, 34 Minn. 410; Clark v. Jones, 87 Ala. 474; Radcliff v. Poundstone, 23 W. Va. 724; Bugbee v. Kendricken, 130 Mass. 437; Osborn v. Emery, 51 Mo. App. 408; Mackey v. Smith, 21 Oregon 598; Harris v Frank, 81 Cal. 280; Gill v. Read, 55 Mo. App. 246; Kansas City Sewer Pipe Co. v. Smith, 36 Mo. App. 608; Bayles v. Wallace, 56 Hun (N. Y.) 428. Ante, § 157.