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.
App. 448; Bateman v. Butler, 124 Ind. 223; Mulcrone v. American Co., 55 Mich. 622; Estabrook v. Gebhart, 32 Ohio St. 415; Smart v. Smart, 97 N. Y. 559; Howell v. Field, 70 Ga. 592; Sapp v. Faircloth, 70 Ga. 690; Clay v. Tyson, 19 Neb. 530. See Sweatman v. Parker, 49 Miss. 19; Harris v. Young, 40 Ga. 65; Runde v. Runde, 58 111. 232; Meyer v. Hartmann, 72 111. 442; Crosby v. Jeroloman, 37 Ind. 264; Helms v. Kearns, 40 Tnd. 124; Crim v. Fitch, 53 Ind. 214; Buchanan v. Padelford, 43 Vt. 64; Putney v. Farnham, 27 Wisc. 187; Balliet v. Scott, 32 Wisc. 174; Wynn v. Wood, 97 Pa. St. 216; Sweet v. Colleton, 96 Mich. 391.
1 Townsend v. Long, 77 Pa. St. 143; Huber v. Ely, 45 Barb. (N. Y.) 169. See Fullam v. Adams, 37 Vt. 391; Urquhart v. Brayton, in the Supreme Court of Rhode Island, July, 1878, 6 Reporter 601, per Potter, J. See post, § 206. This seems to be the only ground upon which a recovery would be allowed in Massachusetts. See Exchange Bank v. Rice, 107 Mass. 37; Carr v. Nat. Security Bank, 107 Mass. 45.
2 Spadone v. Reed, 7 Bush 455. This reasoning is adopted also by Mr. Throop, Val. Verb. Agr. § 391.
3 Post, § 193.
4 Warren v. Batchelder, 16 N. H. 580; Urquhart v. Brayton, 6 Reporter 601. See Lang v. Hemy, 54 N. H. 57; Lindley v; Simpson, 45 111. App. Ct. 648.
Connor v. Williams,1 in the New York Superior Court, suggests what appears to be a satisfactory ground for holding that the statute does not apply to transactions of the class under consideration. The promise is made to the debtor, and the consideration for it moves wholly between him and his promisor. The only interest which the creditor has in the transaction between them arises by implication from the fact of his relation to the debtor; and it may well be said that the law imposes upon the promisor the duty of recognizing that interest, when he makes his bargain with the debtor. He is held by law to render himself liable to the creditor, and as that obligation arises only by implication, the statute does not apply.2
§ 167. The Supreme Court of New York appears to have at one time departed from the rule suggested by Barker v. Bucklin, or, at any rate, unsettled the reasoning on which it rests. One Rowley owed the plaintiff $87, and the defendant owed Rowley $150. On a settlement between Rowley and the defendant, the latter gave the former his note for all he owed him except $87, which he promised him verbally to pay to the plaintiff. He afterward refused to do so, and the plaintiff brought assumpsit upon the promise, as for his benefit. At the trial a motion for a nonsuit was denied, and the plaintiff had a verdict. On error, the court drew a distinction between the present case and Barker v. Bucklin, to which they were referred: in the latter, it was said, the defendant had in effect received money for the plaintiff's use, the debtor having sold property to the defendant on his agreeing to pay the price of it to the plaintiff; but here, it was added, "the defendant received nothing for the plaintiff's use. He had previously had the benefit of the labor of Rowley, for which he still owed him. Rowley gave the defendant no receipt, and no discharge from his indebtedness. He placed nothing in the hands of the defendant for the plaintiff. If he had received from the defendant all the money due to him, and then had paid back to the defendant $87 for the plaintiff, - the defendant agreeing to pay it to the plaintiff, - this action could have been maintained. And such payment would not have been a mere form. It would have changed the substantial rights of the parties to the contract. It would have discharged Rowley's claim against the defendant for the previous labor, which, as the business was in fact transacted, was left unpaid."1 It is difficult to see the soundness of any such distinction. If the defendant had paid Rowley's debt to the plaintiff according to his agreement, it would have been a full defence to any subsequent action by Rowley for that amount, as due to him upon the old account. The sole difference between this case and Barker v. Bucklin seems to be, that there the debt was incurred contemporaneously with, while here it was incurred some time previously to, the making of the defendant's promise to pay the amount of it to the plaintiff. In both cases it was understood between the defendant and the third person that the former's debt was to be discharged by paying the amount to the latter's creditor. Later decisions in New York have rejected the distinction as to the time of incurring the debt which the defendant undertook to pay to the plaintiff, and have affirmed the law as held in Barker v. Bucklin.2
1 Conner v. Williams, 2 Rob. 46.
2 See ante, § 166. As to the promise or duty arising solely by implication, see Lawrence v. Fox, 20 N. Y. 268, per Gray, J.; Brewer v. Dyer, 7 Cush. (Mass.) 337, per Bigelow, C J.; Perry v. Swasey, 12 Cush. (Mass.) 36, per Shaw, C J.; Urquhart v. Brayton, 6 Reporter 601, per Durfee, C. J.; Reynolds v. Lawton, 62 Hun (N. Y.) 596.
§ 168. The views expressed in Barker v. Bucklin afford an explanation of a series of decisions in New York, in which judges have very broadly applied the rule, repeatedly above referred to, that any new and distinct consideration passing between the creditor and the guarantor took the latter's promise out of the statute, though the original debtor continued liable; a doctrine which, by its too free and unqualified assertion, has done much to darken and complicate the law upon this branch of the statute.1 A brief review of those decisions, therefore, seems to be advisable.
1 Blunt v. Boyd, 3 Barb. 212.
2 Barker v. Bradley, 42 N. Y 316; Meriden Britannia Co. v. Zingsen, 48 N. Y. 247; Cox v. Weller, 6 Thomp. & C. 309.
§ 169. One of the most conspicuous among them is Farley v. Cleveland,2 decided in the Supreme Court in 1825. There the defendant verbally promised to pay the plaintiff the debt which a third person owed him, in consideration of that person's delivering to the defendant a quantity of hay to the value of the debt. The court, in Barker v. Bucklin, refer to this case, and show clearly that the Statute of Frauds had no application to it, because, in point of fact, the defendant's engagement was only to pay to the plaintiff the money which he would have otherwise been obliged to pay to his own immediate creditor for the hay he received from him, and the only question was, whether the plaintiff, being a stranger to the consideration, could maintain a suit upon that engagement. Very similar is the case of Ellwood v. Monk,3 in the same court in 1830, where the defendant, in consideration that Johannes Monk delivered to him certain valuable property, verbally promised to pay three notes of Johannes held by the plaintiff. The decision, to the effect that the statute did not apply, was put upon the ground of a new and distinct consideration passing between the parties to the guaranty, and Farley v. Cleveland was cited as authority to that point. But obviously it may be supported upon the ground that the defendant had purchased the property of Johannes in consideration of the amount of the latter's debt, and that he was only discharging his own obligation in paying the plaintiff. The earlier case of Skelton v. Brewster,1 in which, in consideration of a third party's delivering to the defendant all his household goods, the latter promised to pay a debt for which the third party had been arrested on execution, is referable to the same principle; although, as the original debtor was by the agreement discharged, there would seem to be no reason for applying the statute at all. In a case where a first and second indorsee of a promissory note were informed by the maker, before it came due, that he would not be able to pay it at maturity, and all three agreed that the maker should assign his property to the indorsers, and that they should pay the note and look to the assignment for remuneration, which was accordingly done, it was decided that, on account of the new consideration thus moving to the indorsers, their engagement to pay the holder of the note was original and not collateral, and that consequently the statute did not apply. But there appears to be no difficulty in considering the transaction as a purchase of the property with an engagement to pay the price to the plaintiff, the creditor of the vendor, the purchasers taking the risk of realizing from the property a less amount than its estimated value.2