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 Loomis v. Smith, 17 Conn. 115. 4 Elder v. Warfield, 7 Harr. & J. (Md.) 397.
5 Keate v. Temple, 1 Bos. & P. 158. See, further, on this subject, Simpson v. Penton, 2 Cromp. & M. 430; Payne v. Baldwin, 14 Barb.
Pleas, an instructive case on this subject, the defendant was a lieutenant in the navy, and said to a slop-seller, who was to supply the crew with clothes, that he would "see him paid at the pay-table," and afterwards, that he would "see him paid." Among other circumstances to show that the slop-seller actually relied upon the power of the defendant to stop the money out of the men's pay, and not upon his personal liability, the court laid great stress upon the fact that the sum claimed was very large, so much so that it seemed it never could have been contemplated to rely entirely for it upon the personal credit of a lieutenant in the navy, who could not be expected to be responsible for so large an amount. In another case the plaintiff, a builder, who had done some sewage work for a certain board of health, being asked by the board's surveyor to do further work of the same kind for them, said, "I have no objection to do the work if you or the local board will give the order," and the defendant said, "You go on and do the work and I will see you paid." The words used imported a collateral promise, a promise to pay if the board did not; but in view of all the circumstances of the case, including the fact that when the defendant made his promise and the plaintiff proceeded to act upon it, it was not known whether the third party, the board, would ever recognize the bargain and become itself liable, it was held by the Exchequer Chamber (reversing the Queen's Bench) and by the House of Lords sustaining the reversal, that there was evidence upon which the jury might find that the credit was given solely to the defendant, so as to make his promise original, and not collateral.1 The question to whom the credit was given is
(N. Y.) 570; Chase v. Day, 17 Johns. (N. Y.) 114; Smith v. Hyde, 19 Vt. 54; Sinclair v. Richardson, 12 Vt. 33; Hetfield v. Dow, 27 N.J. L. 440; Hazen v. Bearden, 4 Sneed (Tenn.) 48; Turton v. Burke, 4 Wisc. 119; Prosser v. Allen, Gow 117; Billingsley v. Dempewolf, 11 Ind. 414; Blodgett v. Lowell, 33 Vt. 174; Mountstephen v. Lakeman, L. R. 7Q. B. 196; Warnick v. Grosholz, 3 Grant (Pa.) 234: Rossmann v. Bock, 97 Mich. 431; Hazeltine v. Wilson, 55 N. J Law 250.
1 Mountstephen v. Lakeman, L. R. 5 Q. B 613; L. R. 7 Q. B. 196; always for the jury to determine, upon all the circumstances of the case.1
§ 199 a. An application of this principle may be seen in the cases arising upon agreements made by the owners of buildings going up under contract, upon the faith of which subcontractors or others have continued to supply labor or materials after the principal contractor has become either actually or probably unable to pay. In these cases the question is the same, namely, whether the services for which the action is brought were performed solely upon the credit of the owner's promise.2
§ 200. Having now seen what kinds of obligations on the part of the original debtor and of the defendant or promisor, respectively, the statute is intended to affect, and also that these two obligations are to concur in order to bring a case within it, it remains to be considered, in the last place, in what cases the obligation of the latter is not within the statute, though it concur or co-exist with that of the original debtor. Upon this by far the most intricate division of this title, it is found to be impossible to lay down any one general rule which shall comprehend and reconcile all the decisions in our own courts and those of England, consistently with what is believed to be the intent and policy of the statute itself. The safest course to be pursued, and that which will probably lead in the end to the soundest conclusions upon the subject, will be to examine some of the leading English cases, ascertain upon what principles they were decided, and bow far the existing body of decisions is reconcilable therewith.
Lakeman v. Mountstephen, L. R. 7 H. L. 17. See Amort v. Christoffer-son, 59 N. W. Rep. (Minn.) 304.
1 Dean v. Tallman, 105 Mass. 443; Glenn v. Lehnen, 54 Mo. 45; Cowdin v. Gottgetreu, 55 N. Y. 650; Lakeman v. Mountstephen, L. R. 7 H. L. 17; Bloom v. McGrath, 53 Miss. 249; Eshleman v. Harnish, 76 Pa. St. 97; Moshier v. Kitchell, 87 111. 18; Pettit v. Braden, 55 Ind. 201; West v. O'Hara, 55 Wisc. 645; Ingersoll v. Baker, 41 Mich. 48; Bonnie v. Denniston, 41 Mich. 292; Larson v. Jensen, 53 Mich. 427; Morris v. Osterhont, 55 Mich. 262; McTighe v. Herman, 42 Ark. 285; Flournoy v. Wooten, 71 Ga. 168; Reynolds v. Simpson, 74 Ga. 454; Heywood v. Stiles, 124 Mass. 275; Barrett v. McHugh, 128 Mass. 165; Boston v. Fan, 148 Pa. St. 220; Maddock v Root, 72 Hun (N. Y.) 98.
2 Gill v. Herrick, 111 Mass. 501; Walker v. Hill, 119 Mass. 249; Gifford v. Luhring, 69 111. 401; Rawson v. Springsteen, 2 Thomp. & C. (N. Y.) 416; Belknap v. Bender, 75 N. Y. 446; Jefferson County v. Slagle, 66 Pa. St. 202. See Eshleman v. Harnish, 76 Pa. St. 97; Haverly v. Mercur, 78 Pa. St. 257; Weyand v. Critchfield, 3 Grant (Pa.) 113; Lakeman v. Mountstephen, L. R. 7 H. L. 17; Bates v. Donnelly, 57 Mich. 521; Birchell v. Neaster, 36 Ohio St. 331; Crawford v. Edison, 45 Ohio St. 239; Merriman v. McManus, 102 Pa. St. 102.
§ 200 a. First, there is a class of cases in which the defendant or promisor has or is about to acquire an interest in property which has been or may be subjected to a lien to secure a debt owing by a third person. If the defendant promises to discharge the debt, thus freeing his own property or interest from the incumbrance, his promise is not affected by the fact that the third party was also liable for the same debt, but is regarded as original and independent, - a promise to pay his own debt.1
§ 201. Another class of cases holds that if the defendant (meaning the party who makes the promise to answer for the debt, default, or miscarriage of another) procures the surrender, or transfer to himself from the creditor, of a lien or security which the latter holds for the debt owing him, the defendant's promise, made in consideration of such surrender, or transfer, to be answerable for the debt, is not embraced by the provisions of the Statute of Frauds. It is simply a purchase from the creditor of such lien or security for a price which is the amount of the original debt. The leading case to this effect is Castling v. Aubert, decided by the Court of Queen's Bench in 1802.