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 See post, § 197.
2 Redhead v. Cator, 1 Stark. 12; Whitcomb v. Kephart, 50 Pa. St. 85. 3 Chapin v. Lapham, 20 Pick. 467, per Shaw, C. J. But see the remarks of the same judge in Alger v. Scoville, 1 Gray 391.
§ 159. Where the promise is to indemnify against the consequences of such an act or engagement on the part of the promisee as involves no duty or liability on the part of any third person also to indemnify him, the statute manifestly does not apply; for there is no liability of a third party, either express or implied, to which the defendant's promise to indemnify can be collateral. Thus, where the indorser of a dishonored bill requested a subsequent indorsee to sue the acceptor, and the latter did so, it was held that he could recover upon the oral promise of the other to indemnify or reimburse him for the expenses of the suit.2 So, where the plaintiff at the defendant's request has made a note to a third party, the promise of the defendant to save the maker from payment of the note is clearly original and not within the statute.3 And so with a promise to indemnify the plaintiff against a suit to be brought for a trespsas committed by him at the promisor's instance, for the purpose of raising a question of title,4 or against a suit of the same nature for resisting payment of tithes.6
§ 160. The only case found which stands opposed to the rule stated above is that of Winckworth v. Mills, decided at
1 Harrison v. Sawtel, 10 Johns. (N. Y.) 242; Chapin v. Merrill, 4 Wend. (N. Y.) 657. See post, §§ 160, 161.
2 Bullock v. Lloyd, 2 Car. &. P. 119; and see Howes v. Martin, 1 Esp. 162.
3 Hull v. Brown, 35 Wisc. 652; Green v. Brookins, 23 Mich. 48.
4 Marcy v. Crawford, 16 Conn. 549; Allaire v. Ouland, 2 Johns. (N. Y.) Cas. 52. And see Weld v. Nichols, 17 Pick. (Mass) 538.
5 Adams v. Dansey, 6 Bing. 506. And see also Goodspeed v. Fuller, 46 Me. 141; Dorwin v. Smith, 35 Vt. 69; Evans v. Mason, 1 Lea (Tenn.) 26; nisi prius, where one Taylor made a promissory note to the defendant, who indorsed it to another, who indorsed it to the plaintiff, and he, having lost the original note, applied to the makers, who made a difficulty about paying it, whereupon the defendants verbally promised to indemnify the plaintiff if he would endeavor to enforce payment from the maker. The action was in part to recover expenses incurred in such endeavor, and Lord Kenyon ruled that, as to that part which was based on the promise to indemnify, plaintiff could not recover, because it was a promise to answer for the debt and default of another.1 This decision apparently cannot be sustained. The promise clearly was, not to answer to the promisee for the debt, default, or miscarriage of another, but to make up to him any loss he might sustain by his own act, in attempting to compel payment of the note by the maker.
§ 161. But there is a large class of cases, in which the defendant's promise is or may be expressed as a promise to the plaintiff to indemnify him against the consequences of some act or undertaking of his own, while at the same time there is an implied obligation on the part of some third person also to indemnify him; to which obligation the defendant's promise of indemnity is or may be collateral. It is from cases of this class that great confusion in the law has arisen, because apparently of the inconsiderate treatment of them by the courts as mere cases of contracts of indemnity, without sufficient regard to the fact of the coexistence of the implied obligation on the part of the third person. It is obvious that they must not be confounded with such cases as we have heretofore considered, where no such implied obligation coexisted; and that they cannot be dismissed as not covered by the statute, simply because the defendant's promise is in form a promise to indemnify.J Whether or not in such cases the express promise of the defendant and the coexisting implied liability of the third party constitute a case of collateral obligation under the Statute of Frauds depends upon other considerations.
Peck v. Thompson, 15 Vt. 637; Fleram v. Whitmore, 23 Mo. 430; Stocking v. Sage, 1 Conn. 519; Stark v. Raney, 18 Cal. 622; Tarr v. Northey, 17 Me. 113; Chapman v. Ross, 12 Leigh (Va.) 565; Conkey v. Hopkins, 17 Johns. (N. Y.) 113; Faruum v. Chapman, 61 Vt. 395; Mays v. Joseph, 34 Ohio St. 22; Lerch v. Gallup, 67 Cal. 595. 1 Winckworth v. Mills, 2 Esp. 484.
§ 161 a. As to the English cases, the first to be noticed is Thomas v. Cook, in the Queen's Bench, 1828, where the plaintiff, at the defendant's request and upon his special promise to indemnify him, joined the defendant as surety on a bond of a third party to secure his debt to a fourth. The case showed no obligation of the third party to the plaintiff, except that which would arise by implication of law upon the plaintiff's being actually damnified as his surety, and it was held that the statute did not apply to the defendant's special promise to indemnify the plaintiff.2 In Green v. Creswell, in the Queen's Bench, 1839, the plaintifif at the defendant's request, and upon his special promise to indemnify him, became bail for a third party who was arrested for debt; the case, as before, showed no obligation of the third party to the plaintiff, except the implied obligation arising upon his being compelled to pay; but it was held that the defendant's special promise to indemnify him was within the statute, upon the ground (with another) that it was collateral to the third party's implied obligation to the like extent.8 It is to be noticed that in Thomas v. Cook the plaintiff and defendant became co-sureties, while in Green v. Creswell the defendant was not himself on the bond; and this difference between the facts of the two cases has been supposed to distinguish them,4
1 Cheesman v. Wiggins, 122 Ind. 352.
2 Thomas v. Cook, 8 Barn. & C. 728. 3 Green v. Creswell, 10 Ad. & E. 453.