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 It is necessary to remark, in regard to Mr. Roberts's account of this case (Roberts on Frauds, 226), that he omits in his statement of it the cardinal fact that the debts were assigned to Weston. This is what gives the transaction the distinctive character of a purchase. The same author classes this case with Castling v. Aubert, as being both cases of "considering the transaction in the light of a purchase." But it should be borne in mind that the former was a purchase of the debt, the latter of a security for the debt; the former completely extinguished the original creditor's claim upon the original debtor; the latter left that claim unimpaired.
2 Chater v. Beckett, 7 T. R. 201; Case v. Barber, T. Raym. 450, decided four years only after the enactment of the statute.
1 Tomlinson v. Gill, 1 Ambler 330. 2 Read v. Nash, 1 Wils. 305.
§ 212. Having now examined these several cases at length, let us see if any one general and comprehensive rule can be stated as justified by them, and not violating the spirit and policy of the Statute of Frauds. It is said by Mr. Roberts, in his excellent treatise on the construction of the statute, and as the broad result of these cases, that if the consideration of the new promise "spring out of any new transaction or move to the party promising upon some fresh and substantive ground of a personal concern to himself, the Statute of Frauds does not attach." 1 If taken after a critical examination of the cases themselves, this rule can hardly be said to assert any error; but the generality of the expressions used is such that it is not surprising to find it since extended to cases which bear not the least resemblance to those on which the rule professes to be based.2 Again, Chief Justice Kent, in the case of Leonard v. Vredenburgh, took occasion to classify all guaranties under the Statute of Frauds with reference to the consideration, and his third class consists of cases where, as he says, "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."1 In the rule, as thus stated, for which Mr. Roberts is (not quite correctly) cited as authority, we perceive scarcely any recognition of the distinctive features of the cases themselves from which the doctrine was first extracted. But acting upon this rule, and too often pressing it against the clear application of the statute, some of the American courts have held that, wherever there was a new consideration, distinct from that which supported the original debtor's liability, and moving between the parties to the guaranty, the defendant's promise was saved from the operation of the statute.2 However respectable the countenance it has received, this doctrine, if unqualified, must be repudiated as not based upon authority, and as, to a great degree, nullifying the statute. And it may also be fairly said that the better opinion of courts and of commentators is now leaning against it.3 It
1 Roberts on Frauds, 232.
2 Myers v. Morse, 15 Johns. (N. Y.) 425; Meech v. Smith, 7 Wend. (N. Y.) 315; King v. Despard, 5 Wend. (N. Y.) 277; Creel v. Bell, 2 J. J. Marsh. (Ky.) 309; Taylor v. Drake, 4 Strobh. (S. C.) Law 431; Cooper v. Chambers, 4 Dev. (X. C) 261; Tompkins v. Smith, 3 Stew. & P. (Ala.) 54; Ragland v. Wynn, 1 Sel. Cas. (Ala.) 270; Tighe v. Morrison, 41 Hun (N. Y.) 1; Kansas City Sewer Pipe Co. v. Smith, 36 Mo. App. 608; Winn v. Hilyer, 43 Mo. App. 139. Dibble v. De Mattos, 8 Wash. 542; It is uniformly held, however, that forbearance by the creditor is not enough to take the defendant's promise out of the statute. Hilton v. Dinsmore, 21 Me. 410, overruling Russell v. Babcock, 14 Me. 138; Harrington v. Rich, 6 Vt. 666; Caston v. Moss, 1 Bailey (S. C.) Law 14; Musick v. Musick, 7 Mo. 495; King v. Wilson, 2 Stra. 873; Thomas v. Delphy, 33 Md. 373; Lang v. Henry, 54 N. H. 57. But see Chapline v. Atkinson, 45 Ark. 67; Killough v. Payne, 52 Ark. 174. Nor the creditor's merely stating and swearing to the account. Brown v. Barnes, 6 Ala. 694. Qucerc, if forbearance, protracted (without agreement to that effect) so long as to involve the loss of the claim against the original debtor, as by limitation, etc., will take the case out of the statute. Tem-pletons v. Bascom, 33 Vt. 132. Compare Brightman v. Hicks, 108 Mass. 246.
1 Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29.
2 See the cases cited p. 272, n. 2. Several decisions, whose language affirms this doctrine, have, in previous pages of this chapter, been referred to other principles by which they were clearly determinable. In a case in Vermont, Templetons v. Bascom, 33 Vt 132. defendant, being sole heir to. and coming into possession of an estate which was solvent, stated to the plaintiffs, who held a claim against the estate, that it was a just claim, that they might give themselves no trouble about it, and that he would pay it, etc. Held, that the Statute of Frauds did not require the defendant's promise to be in writing. The opinion of the court proceeds upon the ground that the promise was founded upon a new and distinct consideration, moving from the plaintiffs directly to the defendant; to wit, their "waiver" of their claim against the estate. By the statement of facts, it would appear that they lost their claim against the estate by their forbearance to present it. If the defendant's promise was taken in substitution for the liability of the estate, then the decision was correct upon other and obvious grounds If it was not so substituted, but the claim against the estate was merely forborne for a time, then the decision is clearly not law.
3 Kingsley v. Balcome. 4 Barb. (N. Y.) 181, per Bill, J; Noyes v. Humphreys, 11 Grattan (Va.) 636; Floyd v. Harrison, 4 Bibb (Ky.) 76; has been said that so long as the original debtor remains liable, so long as the plaintiff has a double remedy, one against him and the other against the defendant, the latter's promise is necessarily affected by the statute. But if this is so, Castling v. Aubert and Williams v. Leper are wrong, for in neither of them was the claim of the creditor against his original debtor discharged. And, indeed, if in any case such claim should be held so discharged, there could be no question under the statute; the defendant's promise then being, as we have heretofore seen, original, and not collateral. The words of the statute itself, in their simple meaning, seem to give us the true rule. It contemplates a promise to answer for another's debt; a promise for that purpose; a mere guaranty; and it never was meant that a man should set it up as a pretext to escape from the performance of a valid verbal obligation of his own, because, in performing it, the discharge of a third party's debt was incidentally involved.1