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.
5 Apgar v. Hiler, 24 N. J. L. 812; Cortelyon v. Hoagland, 40 N. J. Eq. 1.
6 Jones v. Shorter, 1 Kelly 294.
7 Dunn v. West, 5 B. Mon. 376; Lucas v. Chamberlain, 8 B. Mon. 276; Jones v. Letcher, 13 B. Mon. 363.
8 Mills v. Brown, 11 Iowa 314.
9 Horn v. Bray, 51 Ind. 555; Anderson v. Spence, 72 Ind. 315, overruling Brush v. Carpenter, 6 Ind. 78; Keesling v. Frazier, 119 Ind. 185.
10 Goetz v. Foos, 14 Minn. 265.
11 Shook v. Vanmater, 22 Wisc. 532; Vogel v. Melms, 31 Wisc. 306.
12 Minick v. Huff, 59 N. W. Rep. (Neb.) 795.
13 Beaman v. Russell, 20 Vt. 205.
14 Reed v. Holcomb, 31 Conn. 360; Smith v. Delaney, 64 Conn. 264.
16 Potter v. Brown, 35 Mich. 274. See Comstock v. Morton, 36 Mich. 277.
16 Brand v. Whelan, 18 Brad. (111. App. Ct.) 186.
17 Nugent t7. Wolfe, 111 Pa. St. 471, and cases cited; Draughan v. Bunting, 9 Ired. 10.
18 Simpson v. Nance, 1 Speers 4.
19 Macy v. Childress, 2 Tenn. Ch. 438.
Missouri,1 Alabama,2 and Ohio8 the question seems to be unsettled.
§ 162. It would be unprofitable to trace the course of the American decisions here cited. It has manifestly resulted in the rejection, by the great preponderance of authority, of the doctrine of Green v. Creswell, and the acceptance of the doctrine of Thomas v. Cook, a result reached after much vacillation on the part of courts of the same State, and not, it must be confessed, by reference to any clear and satisfactory ground of principle. Indeed, most of the decisions which reject the doctrine of Green v. Creswell waive altogether the question of principle, and put it as a matter settled by authority that the "promise to indemnify" is not within the statute. In other cases it is put upon the ground that the plaintiff makes his engagement, relying upon the defendant's special promise, and not upon the third party's implied liability; that the former and not the latter is the foundation of the special contract; and that the decisive question is to whom credit was given by the plaintiff.4 But as we shall have occasion to see hereafter, the application of the statute cannot safely be determined by the consideration that the plaintiff relied upon one obligation to himself rather than upon another; or even that he relied wholly upon the obligation of the defendant's special promise, giving "credit" solely to him, if still a third party was really liable to the plaintiff to the same extent. Ordinarily the rule, that if credit is given only to the defendant on his special promise the statute does not apply, is sound; for ordinarily the rule is applied to cases of property furnished or services rendered to the third party, and if no credit is given to him there is no action against him, and the statute of course does not apply. But the troublesome element in the cases we are now considering is that by the hypothesis there are or are to be two different persons concurrently liable to the plaintiff to do the same duty. We must look further to find the reason why the statute does not apply in such a case. And perhaps it may be found in this, that the implied obligation of the third party exists only by force of and as incidental to the special contract between the plaintiff and the defendant. The defendant promises the plaintiff that, if he becomes liable upon the actual default of the third party, he, the defendant, will protect him; and upon the plaintiff's becoming surety accordingly, the third party, as a legal consequence thereof, becomes also bound to protect him. There was not, however, any independent obligation or debt or duty of the third party to the plaintiff, to which the defendant's promise came in aid. And it may well be said that the statute contemplates only obligations of the third party previously existing, or incurred contemporaneously with the defendant's special promise, or afterward, as the case may be, but always existing or to exist independently of any contract of guaranty between the plaintiff and defendant; an obligation which exists, or may exist, whether any contract be made between the plaintiff and defendant or not; not an obligation which comes into existence only as a legal incident of the contract which they have made. On this ground, it is believed, the doctrine that the statute does not apply to promises to indemnify may rest; at least none so satisfactory or so consistent with the spirit of the statute is suggested in any of the cases.1
1 Garner v. Hudgins, 46 Mo. 399; Bissig v. Britton, 59 Mo. 204.
2 Brown v. Adams, 1 Stew. 51; Godden v. Pierson, 42 Ala. 370.
3 Easter p. White, 12 Ohio St. 219; Kelsey v. Hibbs, 13 Ohio St. 340; Ferrell v. Maxwell, 28 Ohio St. 383.
4 Holmes v. Knights, 10 N. H. 175. And see a well-considered case in Wisconsin, Vogel v. Melms, 31 Wisc. 306, where this view is ably argued and the cases discussed.
§ 162 a. An analogous question arises when the title to property is verbally warranted to a third person by some one not the owner, as an inducement to its purchase. It has been held,1 that the warranty of title is in law an undertaking to be responsible for the fulfilment by the seller of his implied warranty of title arising from the sale, and is therefore within the statute. It may be doubted, however, whether the essence of the transaction is not a strict warranty that a certain condition of things now exists, namely, that the seller's title is good. If this is so, then clearly the matter of future default is not in the minds of the parties, and to treat the transaction as a collateral undertaking within the statute would seem to be giving to it an interpretation which it was not meant to have.
1 In Wildes v. Dudlow, L. R. 19 Eq. 198, where the statute was held not to apply to a promise of indemnity, Malins, V. C, says that the promise "was not 'I engage with you to be answerable to you for the debt of Wildes ' [the third party], because Wildes did not owe Dudlow [the promisee] anything." See also 3 Pars. Cont. (5th ed.) 22, note.