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 Ryde v. Curtis, 8 Dowl. & R. 62. 2 Lees v. Whitcomb, 5 Bing. 34.
3 Sykes v. Dixon, 9 Ad. & E. 697.
4 Morris v. Stacey, Holt 153: Pace v. Marsh, 1 Bing. 216.
1 Haigh v. Brooks, 10 Ad. & E. 309.
2 Allnutt v. Ashenden, 5 Man. & G. 392.
3 Walrath v. Thompson, 4 Hill 200. But see Weed v. Clark, 4 Sand 31.
4 Butcher v. Steuart, 11 Mees. & W. 857.
§ 404. We have seen in a previous chapter that a creditor's forbearance to sue his debtor is an adequate consideration, moving from the creditor, to support a guaranty by a third party that the debt shall be paid at a subsequent day. The memorandum of guaranty of such a debt, therefore, will be sufficient for the purposes of the rule we are now examining, if it afford a reasonable inference that the inducement of the guaranty was the creditor's giving time to the debtor.4 It is quite plain that his forbearance is not necessarily inferred to be the consideration of a guaranty, because the memorandum refers to the debt as already due.1 And although, as has been already remarked, a memorandum stating the delivery therewith to a creditor of securities for the payment of money by a third party, and engaging to see them paid at maturity, may be supported upon the inference that the consideration of such engagement was the plaintiff's giving the third person credit until their maturity; yet it is held that such a memorandum cannot be construed to import the forbearance of the creditor, for the period which the securities have to run, to enforce an old debt; and a demurrer to a declaration setting out the memorandum, and alleging forbearance as the consideration, will be sustained.2
1 Goldshede v. Swan, 1 Exch. 154.
2 Lysaght v. Walker, 5 Bligh, n. S. 27. See further, in illustration of the same rule, Thornton v. Jenyns, 1 Man. & G. 166; Steele v. Hoe, 14 Q. B. 431; Edwards v. Jevons, 8 C. B. 436; Bainbridge v. Wade, 16 Q. B. 89; Shortrede v. Cheek, 1 Ad. &E. 57; D'Wolf v. Rabau.l, 1 Pet. (U. S.) 476.
3 Moses v. Lawrence County Bank, 149 U. S. 298.
4 Powers v. Fowler, 4 El. & B. 511; Emmott v. Kearns, 5 Bing. N. R. 559; Patchin v. Swift, 21 Vt. 292.
§ 405. As a general rule, however, in all cases where the language of the memorandum shows with reasonable clearness that the defendant's promise is designed to procure something to be done, forborne, or permitted by the party to whom it is made, either to or for the promisor or a third party, such act, forbearance, or permission, so stipulated for by the defendant, is taken to be the inducement to his promise; and the suggestion of it in his memorandum, preventing him from asserting that his promise is without consideration, suffices to make the memorandum binding upon the plaintiff.3 Where a guaranty refers partly to a credit ant as well as that of the purchaser; and he adds: "The writing imported, upon the face of it, one original and entire transaction; for a guaranty of a contract implies, ex vi termini, that it was a concurrent act, and part of the original agreement. . . . Upon the whole, we think that the plaintiff was entitled to recover, upon production and proof of the writing. But if there was any doubt upon the face of the paper, whether the promise of J. [the purchaser] and that of the defendant were or were not concurrent and one and the same communication, the parol proof was admissible to show that fact."1
1 Wain v. Warlters, 5 East 10; Clancy v. Piggott, 2 Ad. & E. 473; Cole v. Dyer, 1 Cromp. & J. 461; James v. Williams, 5 Barn. & Ad. 1109; Smith v. Ives, 15 Wend. (N. Y.) 182. But see Neelson v. San-borne, 2 N. H. 413.
2 Hawes v. Armstrong, Bing. N. R. 761, which in this respect seems inconsistent with Boehm v. Campbell, 8 Taunt. 679.
3 The rule is derived from the various cases previously cited and explained in reference to this subject; to which may be added, for further illustration, the following: Benson v. Hippius, 4 Bing. 455; Redhead v. Cator, 1 Stark. 14; Coe v. Duffield, 7 Moore 252; Peate v. Dicken, 1 Cromp. M. & R. 422; Colbourn v. Dawson, 10 C. B. 765; Rogers v. Kneeland. 10 Wend. (N.Y.) 252; Marquand v. Hipper, 12 Wend. (N. Y.) 520; Waterbury v. Graham, 4 Sand. (N. Y.) 215. The Revised Statutes of New York (see Appendix) provided that the consideration shall be expressed in the memorandum. Upon the force of this word much has previously given, and partly to a credit to be thereupon given, to the third party, the latter of course will be sufficient to uphold the memorandum.1
§ 406. But it is not always necessary that the defendant's memorandum should in itself contain any words from which the inducement to his promise can be inferred. If, for instance, he makes himself a party to a written agreement between two others, and in that agreement it is stipulated that he is to be answerable for the performance on the part of one of them, this close connection between his guaranty and the agreement will show that the consideration of the guaranty was the making of the agreement.2 Again, if at the time of making the principal agreement, and as part of one entire transaction between those concerned, the guaranty be indorsed, or otherwise written upon it, or, being on a separate paper, refer to it,3 the consideration of the guaranty been said in the courts of that State, but upon the whole it seems to involve no important modification of the principle stated in the text. See the cases, Packer p. Willson, 15 Wend. 343; Smith v. Ives, 15 Wend. 182; Bennett v. Pratt, 4 Denio, 275; Staats v. Howlett, 4 Denio 559; Douglass v. Rowland, 24 Wend. 35; Union Bank of Louisiana v. Coster, 1 Sand. 563; Gates v. McKee, 13 N. Y. 232; Barney v. Forbes, 118 N. Y. 580; O'Bannon v. Chumasero, 3 Montana 419; Kenney v. Hews, 26 Neb. 213.
1 White v. Woodward, 5 C. B. 810; Wood v. Benson, 2 Cromp. & J. 94; Russell v. Moseley, 3 Brod. & B. 211; Gates v. McKee, 13 N. Y. 232. Also Raikes v. Todd, 8 Ad. & E. 846, which is explained in Caballero v. Slater, 14 C. B. 300.