guarantees performance of an agreement made by a married woman under common-law disability, 28 is not within the statute. The same has been held of guarantee that an infant should pay debts incurred by him.29 But now that it is generally recognized 30 that an infant's contracts are not void but only voidable, the correct view seems to be that a guaranty of an infant's obligation is within the statute.31 So, the statute is inapplicable, "where the effect of the new promise is to extinguish the liability of the original party before the obligation of the new promise attaches, as in the case of a promise to pay the debt if the promisee will discharge the primary debtor from a capias ad respondendum. In such event the discharge from the writ by operation of law, destroys the debt, so that there is nothing to which the new assumption can stand as collateral. In cases of this class it has been repeatedly decided that the statute did not apply." 32

28 King v. Summitt, 73 Ind. 312, 315, 38 Am. Rep. 145. But see Maggs v. Ames, 4 Bing. 470. If the married woman had a separate estate which equity would charge for payments of the debt, a promise by another to guarantee payment is within the statute. Connerat v. Goldsmith, 6 Ga. 14. See also Re Hoyle, [1893] 1 Ch. 84, 99.

29 Harris v. Huntbach, 1 Burr. 373; King v. Summitt, 73 Ind. 312, 315, 38 Am. Rep. 145; Roche v. Chaplin, 1 Bail. (S. C.) 419.

30 See supra, § 226.

31 This was so held in Dexter v. Blanchard, 11 Allen, 365. The Massachusetts case has been criticized by text writers, Browne on Statute of Frauds (3d ed.), § 156 (the learned author retracted his criticism in the 4th Ed.); 1 Brandt on Suretyship (3d Ed.), § 69, n. 73, on the ground that the infant's obligation is voidable and therefore gives no real remedy to the creditor. But the Massachusetts case is supported by other cases. Baldwin v. Hiers, 73 Ga. 739; Scott v. Bryan, 73 N. C. 582; Brown v. Far

It seems immaterial in

mers', etc., Nat. Bank, 88 Tex. 265 31 S. W. 285, 33 L. R. A. 359, and, on principle, the practical worthlessnes of the creditor's remedy on the primary obligation, whether because the principal debtor has no funds, or is outside the jurisdiction, or because of any other reason the claim cannot be collected, seems immaterial so long as there is what the law recognizes as a primary obligation. To this effect is Browne on the Statute of Frauds (4th and 5th Eds.), § 156. The contrary view would involve a curious difficulty if the infant should ratify his obligation. Surely then, on any view, the guarantor's promise would be to answer for the debt of another, and if the ratification takes effect by relation, his promise would have to be treated as within the statute from the outset. Yet the infant by his ratification could hardly be allowed to affect the rights of third persons.

32 Cowenhoven v. Howell, 36 N. J. L. 323, 327, citing: Goodman v. Chase, 1 B. & Ald. 297; Fitzgerald v. Dressler, 7 C. B. (N. S.) 374; Kelsey v. Hibbs, 13 Ohio St., 340; Butcher v. Steuart,

such a case whether the promisor engaged absolutely to pay or promised to pay if the primary debtor failed to do so. Though, as has been said, no question of the Statute of Frauds can arise where a promise is made by one who purports to make himself a surety if there is no primary obligation, yet in such a case for another reason the creditor may find himself unable to enforce a contract against the promisor. In a leading English case 33 Willes, J., said: "The leading case upon the application of the Statute of Frauds has generally been considered to be Birkmyr v. Darnell,34 "and in the note to Mr. Evans's edition of Salkeld's Reports it is stated, that, 'from all the authorities it appears, conformably to the doctrine in this case, that if the person for whose use the goods are furnished is liable at all, any other person's promise is void, except in writing.' I think that may be well modified: 'Or if his liability is made the foundation of a contract between the plaintiff and the defendant, and that liability fails, the promise is void:' so as to include the case which I put to Mr. Charles of persons wrongly supposing that a third person was liable, and entering into a contract on that supposition. If, in such a case, it turned out that the third person was not liable at all, the contract would fail, because there would be a failure of that which the parties intentionally made the foundation of the contract. The lex contractus itself would make an end of the claim, and not the application of the Statute of Frauds, whether the contract was in writing or not, and whether signed or not."

It is not, however, to be supposed that the failure of liability on the part of any principal debtor necessarily involves the conclusion that the promise of one who has promised to be responsible collaterally also fails. The latter may have made his promise to pay to meet precisely the contingency that perhaps no one else would be liable, and if the terms of the promise are wide enough to cover the situation which has arisen, evidence

11 M. & W. 857; Meriden Brittannia Co. v. Zingsen, 48 N. Y. 247, 8 Am. Rep. 549. See also Mallory v. Gillett, 21 N. Y. 412, 424, 433; Cooper v. Chambers, 4 Dev. L. 261, 25 Am. Dec. 710.

33 Lakeman v. Mountstephen, L. R. 7 Q. B. 196, aff'd, sub nom. Mountstephen v. Lakeman, L. R. 7 H. L. 17.

341 Salk. 27 (s. c. Buckmyr v. Darnall, 2 Ld. Ray. 1085).

of mutual mistake would need to be clear in order to excuse liability.35

§ 455. No promise which differs in scope from that of another obligor is within the statute.

39

In order to be within the terms of the statute, the special promise must be to fulfil all or part of the obligation of the debtor.36 Otherwise it will not be within the statute, even though having for its object to render it more certain that the original debt will be paid. Thus a promise to notify the creditor of a debt owing to the principal debtor, so that the creditor might garnishee it, is not within the statute.37 Nor is a promise to execute a bail bond,38 or to redeliver to an officer on demand property of a third person which had been attached,3 or to guarantee dividends of a corporation if the promisee will subscribe for stock, 40 or to pay the value of stock given by a corporation as the purchase price of land, if the corporation failed to pay dividends, or that a debtor of the promisee is legally liable, 42 or a promise to induce a third person to sign a guaranty; 43 and where property is actually transferred an agreement by the transferror, that it shall be applied by the transferee in payment of a debt due the latter from a third person may be oral.44 The most important and difficult application of the principle that the performance for which, either absolutely or conditionally, the surety is bound must be identical with that for which the principal is bound is where the new

41

35 Such seem to have been the facts in Lakeman v. Mountstephen, L. R. 7 H. L. 17. So in Kimball v. Newell, 7 Hill, 116, a covenant by which the defendant undertook to become surety for the faithful performance of B's covenant to pay rent, made the defendant liable though B's covenant was void on account of coverture.

36 A guaranty of part of a debt is within the statute. Bennighoff v. Robbins, 54 Mont. 66, 166 Pac. 687.

37 Towne v. Grover, 9 Pick. 306. 38 Jarmain v. Alger, 2 C. & P. 249..

39 Marion v. Faxon, 20 Conn. 486. 40 Moorehouse v. Crangle, 36 Oh. St. 130, 38 Am. Rep. 564; Jepherson v. Hunt, 2 Allen, 417.

41 Clement v. Rowe, 33 S. Dak. 499, 146 N. W. 700.

42 E. g., a promise by the seller of a promissory note that the maker is liable. King v. Summitt, 73 Ind. 312, 38 Am. Rep. 145.

43 Bushell v. Beavan, 1 Bing. n. c. 103. This case is criticised in Carville v. Crane, 5 Hill, 483, 485, but seems sound.

44 Johnson v. Bank of Sun Prairie, 155 Wis. 603, 145 N. W. 178.

promisor engages to make a payment or render a performance (for which it is supposed that another person perhaps is, or may become, liable) whether such liability exist or not.

A promise by B that unless A shall pay $100 the promisor B will do so, is not in terms identical in meaning with a promise by B that unless A shall pay whatever he owes (or whatever he owes not exceeding one hundred dollars) the promisor, B, will do so; even though in both cases A's debt is $100; since in the former case B undertakes to pay whether A is liable or not, in the latter he promises only to pay if A is liable. The latter promise is clearly a guaranty and within the statute; the former may not be. At least where in fact A is not liable, the new promisor is undertaking an obligation of his own which has no counterpart in any previous debt.45 But unless the scope of the statute is to be determined by the merest formality of words, it should be equally clear that if the purpose of a new

45 In Read v. Nash, 1 Wilson, 305, the plaintiff's testator brought an action for assault against J, and the defendant being present promised the testator, if he would not proceed to trial, to pay him 50l and costs; whereupon the testator withdrew his record. The promise was held not within the statute because it did not appear that there was liability on the part of J, for if he had proceeded to trial he might have obtained a verdict. Here it will be noticed that the scope of the defendant's obligation was different, or might be different from that of the original debtor, and this possible difference must have been present to the minds of the parties.

In Mountsephen v. Lakeman, L. R. 7 H. L. 17, affirming L. R. 7 Q. B. 196, the defendant had requested the plaintiff to do certain work upon a sewer of which a Board of Health had charge. A question was raised by the plaintiff whether the Board would authorize the work or become responsible for its payment, and the defendant then said "go on and do the work and I will see you paid." The Board repu

diated any obligation and in fact was not liable. The court held that the jury was warranted in finding the defendant had entered into a personal and primary contract to pay for the work. Here, too, it will be noticed that on the construction of the court the defendant undertook to pay the claimant's claim whether the Board was liable or not. See also Kimball v. Newall, 7 Hill, 116. In Sinkovitz v. Applebaum, 56 N. Y. Misc. 527, 107 N. Y. S. 122, and in Cooper & Polak Works v. Rosing, 85 N. Y. Misc. 409, 147 N. Y. S. 241, it was held that an oral promise by one who owned or was interested as tenant in a building, to pay a sub-contractor for completing the work which he had engaged with a defaulting general contractor to do, was binding. Though the liability of the general contractor still continued, the promise of the owner was held original, being for a beneficial consideration and to pay the price irrespective of the contractor's liability. Cf. Griffin v. Cunningham, 183 Mass. 505, 67 N. E. 660; Boorstein v. Moffatt, 36 Nova Scotia, 81.

promise is to assure a performance which is supposed by the parties to be, and which in fact is identical with the debt of another and is made to ensure the discharge of that debt, the new promise is none the less within the statute because in terms it is a promise to pay a fixed amount which it is supposed by the parties that the original debtor owes, or will owe, and which he in fact does owe, rather in terms to pay whatever debt the principal debtor owes.46 The most troublesome question is the intermediate one where the promise is in terms, or by proper construction, to pay a certain sum whether A owes it or not and, in fact, the parties have distinctly in mind the possibility that A may not be liable, but A does owe the sum promised. 47

§ 456. Whether a new promise to pay, irrespective of the liability of any original debtor is within the statute. It may seem that a new promise to pay, at all events, a certain amount or a certain claim whether another person is liable for it or not, is a promise of such different scope from the original obligation as not to fall within the statute. But since a promise to pay a debt on a certain contingency is within the statute, 48 such a promise as the one in question seems also obnoxious to it, if in fact another person was liable for the debt. It is assumed that payment by the new promisor will operate as a discharge of this liability of the old obligor, and that in no event can the creditor have actual satisfaction both from the new promisor and from the old obligor. On this assumption the new promise amounts to this:-If the old obligor is liable the new promisor agrees to discharge that liability; while if there is no valid claim against another the new promisor, nevertheless, undertakes to pay. The latter portion of this promise is obviously not within the statute, but the first portion is, in terms, within it. Now if, in fact, the original obligor is liable that alternative of the new promise which amounts to an agreement to pay the debt of another is the only portion which is operative, and the new promise is, in legal effect, nothing more

46 See infra, §§ 456, ad fin., 457.

47 See infra, n. 51.

48 Thus a promise to pay the debt of

another when certain funds have been received is within the statute. Walker v. Irwin, 94 Ia. 448, 62 N. W. 785.