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.
§ 166 a. Under this exception may be conveniently treated a class of cases of frequent occurrence, growing out of arrangements by which one man, usually in consideration of the transfer of property to him by another, undertakes to pay the latter's debts. Upon this state of things two questions arise: whether the arrangement gives to a person to whom such a debt is due the right to bring suit for it against the man with whom his debtor has made the arrangement in question; and whether, having such a right, he can maintain an action upon it in the absence of the proof required by the Statute of Frauds. The second question is thus dependent upon the first, and cannot arise if that be answered in the negative. In England it is definitely settled that the creditor has no right of action, upon the general principle that no one can sue upon a contract to which he is not a party, or, as is often said, to the consideration of which he is a stranger.1 In Connecticut the right of the creditor to sue has been distinctly denied,2 while in North Carolina and Tennessee the question seems an open one.3 In Massachusetts the tendency of the later decisions is towards a return to the English rule, though the right of the creditor to sue had previously been declared to be well established in that State.4 In the courts of the other States the creditor's right to sue is generally recognized.5
1 The decision was reaffirmed in Dows v. Swett, 134 Mass. 140. The count therein speaks of the note being transferred by the defendant to the plaintiff, but it is clear from the statement of the case that such was not the fact.
2 Per Hosmer, C. J., in Sage v. Wilcox, 6 Conn. 81; Allen v. Pryor, 3 A. K. Marsh. (Ky.) 305; Pike v. Brown,7 Cush. (Mass.) 133, per Shaw, C. J.; Goodnow v. Gilbert, 9 Mass. 510; Urquhart v. Brayton, 12 R. I. 169.
§ 166 b. It being permitted to the creditor to sue, is his right to recover controlled by the Statute of Frauds? The decided weight of authority is to the effect that it is not, but very different reasons for this conclusion have been given by different courts. A case which has been often cited is that of Barker v. Bucklin, in New York, where the facts were that the defendant's brother owed the plaintiff a sum of money, and, being pressed for payment, delivered to the defendant a pair of horses valued at a price somewhat less than the amount of the debt, and the defendant agreed to pay the amount of the price to the plaintiff, on account of his demand against his brother. As the declaration was upon a promise made to the plaintiff, while the only promise shown by the evidence was made to the brother, a nonsuit was entered on account of the variance. The remarks of the court, however, (Jewett, J., delivering the opinion,) are clear to the effect that, had the declaration been properly framed, the statute would not have been a bar to the action. They say: " It was not a promise to answer for the debt of another person but merely to pay the debt of the party making the promise to a particular person, designated by him to whom the debt belonged, and who had a right to make such payment a part of the contract of sale. Such promise was no more within the Statute of Frauds than it would have been if the defendant had promised to pay the price of the horses directly to his brother, of whom he purchased them." l The theory here suggested, that the defendant's promise was to pay his own debt, has been adopted in analogous cases by the courts of New York and several other States, and the statute held not to apply.2 In several cases where the promise to the debtor was made a part of a contract of sale by him to the promisor, it has been held that the property thus transferred should be treated as a fund in the hands of the transferee, charged with the payment of the debts, and held in trust for the creditors.1 In a case in Kentucky, the statute was said not to apply because the promise was made to the debtor.2 In New Hampshire and Rhode Island it has been said that the assent of the creditor, before suit brought, to the arrangement between his former debtor and the defendant who has agreed to pay the debt, operates as a discharge of the original debtor, and thus, upon a principle hereinafter discussed,3 takes the transaction out of the operation of the statute.4 Again, it has been said that the defendant's promise is made to the debtor as agent of his creditor, the plaintiff, and thus in substance to the plaintiff himself, a view of the transaction which would bring it within the Statute of Frauds; but in the cases where this opinion was expressed the promise was in writing. The opinion of Robertson, C. J., in
1 Jones v. Robinson, 1 Exch. 456, per Parke, B.; Tweddle v. Atkinson, 1 Best & S. 393.
2 Clapp v. Lawton, 31 Conn. 95. See Packer v. Benton, 35 Conn. 343.
3 See Rice v. Carter, 11 Ired. 298; Styron v. Bell, 8 Jones 222; Campbell v. Findley, 3 Humph. 330; Brice v. King, 1 Head 152.
4 See Exchange Bank v. Rice, 107 Mass. 37; Carr v. Nat. Security Bank, 107 Mass. 45; Brewer v. Dyer, 7 Cush. 337.
5 Wood v. Moriarty, 15 R. I. 518. See Sonstiley v. Keeley, 7 Fed. Rep. 447.
1 Barker v. Bucklin, 2 Denio 61.
2 Seaman v. Hasbronck, 35 Barb. 151; Dearborn v. Parks, 5 Greenl. (Me.) 81; Rowe v. Whittier, 21 Me. 545; Maxwell v. Haynes, 41 Me. 559; Brown v. Strait, 19 111. 88; Rabbermann v. Wiskamp, 54 111. 179; Berry v. Doremus, 30 N. J. L. 399; Taylor v. Preston. 79 Pa. St. 436; Johnson v. Knapp, 36 Iowa 616; Mason v. Hall, 30 Ala. 599; Mitchell v. Griffin, 58 Ind. 559; Tisdale v. Morgan, 7 Hun (N. Y.) 583; Williams v. Little, 35 Me. 323; Welch v. Kenney, 49 Cal. 49; Besshears v. Rowe, 46 Mo. 501; Casey v. Miller, 32 Pac Rep. (Idaho) 195; Struble v. Hake, 14 Brad. (111. App. Ct.) 546; Mathers v. Carter, 7 Brad. (111. App. Ct.) 225; Edenfield v. Canady, 60 Ga. 456; Silsby v. Frost, 3 Wash. Terr. (n. s.) 388; Grant v. Pendery, 15 Kansas *236; Phelps v. Rowe, 75 Hun (N. Y.) 414; Keyes v. Allen & Maynard, 65 Vt. 667; Beardslee v. Morgner, 4 Mo. App. 139; Lee v. Porter, 18 Mo. App. 377; Dobyns v. Rice, 22 Mo.