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 Fish v. Hutchinson, 2 Wils. 94; Curtis v. Brown, 5 Cush. (Mass.) 488; Walker v. Hill, 119 Mass. 249; Minto v. McKnight, 28 111. App. Ct. 239; Home National Bank v. Waterman, 30 111. App. Ct. 535.
2 See also Jack v. Morrison, 48 Pa. St. 113. The decision in Reed v. Holcomb, 31 Conn. 360, seems to be in conflict with this well settled principle, though it is disavowed by the opinion.
3 Wainwright v. Straw, 15 Vt. 215; Eddy v. Davidson, 42 Vt. 56; Matthews v. Milton, 4 Yerg. (Tenn.) 579; Hetfield v. Dow, 27 N.J. L. 440; Gibbs r. Blanchard, 15 Mich. 292; Swift v. Pierce, 13 Allen (Mass.) 136. The decision in Schultz v. Noble, 77 Cal. 79, can be better sustained on this ground than on that adopted by the court, viz., that when a broker bought and carried stock for a customer at the request of the defendant and upon the strength of his promise to make good all losses, a settlement by endorsing the note of the broker, and then refusing to meet the endorsement at maturity, was a performance of the contract, which at law prevented the statute from applying. Boyce v. Murphy, 91 Ind. 1.
§ 198. It is sometimes a matter of difficulty to determine to whom the credit has been actually given, whether to the defendant alone, in which case the debt is his own, and his promise is good without writing, or to the third party to any extent, in which case the defendant's promise, being only collateral to or in aid of the third party's liability, requires a writing to support it. In the absence of any other circumstance to show the understanding of the parties, the expressions used by the party promising are doubtless to be resorted to. It has been held by Holt, C. J., that a promise "to be the paymaster" of such a one as shall render services to a third party, is to be taken as an absolute engagement showing the promisor alone to be liable; but that if the words are "to see him paid," this is only a promise to pay if the third party does not, and is collateral and within the statute.1 On the other hand, it seems to have been considered in subsequent English cases that the latter expression, uncontrolled by circumstances, would not necessarily import a collateral engagement.2 But even a promise in terms "to pay " does not make the promisor absolutely liable, so as to dispense with a writing, if it appear in point of fact that the third party who received the benefit of the promise was liable with him.3 It is material to know to whom the charge is made on the plaintiff's books. In Matson v. Wharam, and Anderson v.' Hayman, before cited, the charge was made to the third party, and this circumstance controlled the absolute expressions used by the defendants; and their engagements were held collateral.4 And in like manner the fact of the bill being presented to the original debtor in the first instance, if unqualified by other circumstances, proves the credit given to him, and that the defendant's promise is collateral only.1 But it is material to remark that, though the debiting of the third party on the plaintiff's books or the presentation of the account to him is evidence against the plaintiff to show that he gave credit to the third party, so as to render a writing necessary to hold the defendant, his debiting of, or presenting the account to, the defendant is not necessarily evidence for him to show that he trusted the defendant only, while in fact the goods were delivered or the services rendered to the third party.2 The delivery to the third party is not conclusive against the plaintiff, but evidence will be admitted to show that it was done by mistake.3
1 Willes, J., in Mountstephen v. Lakeman, L. R. 7 Q. B. 202. 2 See post, § 212. 3 Vogel v. Melms, 31 Wisc. 306.
4 The remark quoted from Willes, J. was not necessary to the judgment in the case, which is stated and applied, post, § 198.
1 Watkins v. Perkins, 1 Ld. Raym. 224. And see Skinner v. Conant, 2 Vr, 453; and Bates v. Starr, 6 Ala. 697; Brings v. Evans, 1 E. D. Smith (N. Y.) 192; Clement's Appeal, 52 Conn. 464; Wagner v. Hal-lack, 3 Col. 176. In Hartley v. Varner, 88 11l. 561, the promise appears to have been clearly collateral, although held otherwise.
2 Jones v. Cooper, 1 Cowp. 227; Matson v. Wharam, 2 T. R. 80. See also Thwaits v. Curl, 6 B. Mon. (Ky.) 472; Grant v. Wolf, 34 Minn. 32.
3 Blake v. Parlin, 22 Me. 395; Moses v. Norton, 36 Me. 113, and the cases hereinafter cited on this subject. But see Russell v. Babcock, 14 Me. 138; Benbow v. Soothsmith, 76 Iowa 151.
4 See also Leland v. Creyon, 1 McCord (S. C.) 100; Conolly v. Kettle-well, 1 Gill (Md.) 260; Dixon v. Frazee, 1 E. D. Smith (N. Y.) 32. But evidence that the charge was made to the defendant is not conclusive that credit was given to him. Swift v. Pierce, 13 Allen (Mass.) 136; Burk.
§ 199. But, after all, it is impossible to specify any one fact or set of facts, on which the question to whom the plaintiff gave credit is to be determined. In the language of Buchanan, C. J., in Elder v. Warfield,4 "the extent of the undertaking, the expressions used, the situation of the parties, and all the circumstances of the case, should be taken into consideration." In Keate v. Temple,6 in the Common halter v. Farmer, 5 Kans. 477; Myer v. Grafflin, 31 Md. 350; Champion v. Doty, 31 Wisc. 190; Walker v. Hill, 119 Mass. 249; Ruggles v. Gatton, 50 111. 412; Maynard v. Ponder, 75 Ga. 664; Hake v. Solomon, 62 Mich. 377; Larson v. Jensen, 53 Mich. 427; Winslow v. Dakota Co., 32 Minn. 237; Maurin v. Fogelberg, 37 Minn. 23; Greene v. Burton, 59 Vt. 423. Nor when made to a third party, that credit was given to that party. Lance v. Pearce. 101 Ind. 595.
1 Larson v. Wyman, 14 Wend. (N. Y.) 246; Pennell v;. Pentz, 4 E. D. Smith (N. Y.) 639.
2 Poultney v. Ross, 1 Dall. (Pa.) 238; Cutler v. Hinton, 6 Rand. (Va.) 509; Kinloch v. Brown, 1 Rich. (S. C.) Law 223; Noyes v. Humphreys, 11 Grat. (Va.) 636; Walker v. Richards, 41 N. H. 388. See Eshleman v. Harnish, 76 Pa. St. 97; Hardman v Bradley, 85 111. 162. In Scudder c. Wade, 1 South. (N. J.) 249, the jury found that in fact the whole credit was given to the defendant.