pler situation where the promise in question was made as an offer prior to the creation of any debt. Also, the meaning of the words "original and collateral" which are constantly used in the discussion of the subject should be defined.

§ 463. Distinction between original and collateral promises. A promise which is within the statute is often said to be collateral, if not within the statute it is called original. "The terms collateral or original promise did not occur in the statute, and have been introduced by courts of law to explain its objects and expound its true interpretation." 81

In truth the use of these terms clearly antedates the Statute of Frauds. They were part of the terminology of the law governing the action of debt; an original promise being such a promise as would give rise to an action of debt because a quid pro quo had been received by the defendant; whereas a collateral promise though it might be a binding contract upon which assumpsit would lie because a detriment had been incurred by the plaintiff at the defendant's request, could not be the basis of debt.82 Though the illustrations of collateral

81 D'Wolf v. Rabaud, 1 Pet. 476, 499, 7 L. Ed. 672. In Nelson v. Boynton, 3 Met. 396, 400, 37 Am. Dec. 148, Shaw, C. J., said: "The terms original and collateral promise, though not used in the statute, are convenient enough to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another's debt, and those where although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to subserve or promote some interest or purpose of his own."

82 In Rozer v. Rozer, 2 Vent. 36, an action of indebitatus assumpsit was brought for goods sold and delivered to J. S. at the request of the defendant and for which the defendant promised to pay. The court arrested judgment, saying: "Admitting there were a promise; yet it being collateral it did not

make a debt, but should have been brought as an action upon the case." In Sands v. Trevilian, Cro. Car. 107, 194, A desired B to be attorney for J. S. and undertook to pay him his fees, and such fees as he should give to counsel. Debt was brought and the plaintiff obtained judgment in the lower court, but on writ of error to the King's Bench it was held that no action of debt would lie. Professor Ames thus comments on these cases: (Cases on Suretyship, page 9, n.) "But in Haines v. Finch, Alleyn 6, Rolle, C. J., who had been of counsel for the plaintiff in Sands v. Trevilian, is reported as saying of that case that 'the judgment was not reversed upon the roll, and his opinion was that the judgment was good.' In Ambrose v. Rowe, 2 Show. 421, Skin. 217, s. c., Lord Jeffries, C. J., said, 'that he thought Rolle's argument in that case of Sands v. Trevilian not

promises as distinguished from debts are always promises to be answerable only on default of a principal debtor, there seems no reason to doubt that an absolute promise of a surety to pay the debt of one who received the quid pro quo and who also was absolutely liable, is a collateral promise, with reference both to the action of debt and to the Statute of Frauds.83

At the present day the use of the terms original and collateral is not very helpful because they are not clearly defined. But it is well to remember that the early adoption of these words as defining the cases which Parliament intended to fall within or outside the statute must have been based on the assumption that the old distinction between debt and assumpsit was the equivalent of the new distinction introduced by the statute. One who bears this in mind will recognize that an original promise should not be treated as necessarily implying priority in time; and that a collateral promise does not mean necessarily a promise conditional on the default of another.

§ 464. A promise may be original though the promisor does not receive the benefit of the consideration.

In early times debt would not lie unless the goods, services, or money which formed the basis of the action had been received by the defendant; but subsequently "it became a settled rule that whatever would constitute a quid pro quo, if rendered to the defendant himself, would be none the less a quid pro quo, though furnished to a third person, provided that it was furnished at the defendant's request, and that the third person incurred no liability therefor to the plaintiff. "84 It followed from this, and is still true, that a contract is not brought within

to be answered.' Rolle had argued that 'there was a difference where one is retained generally for another with such a promise to pay his fees and as much as he should expend in the suit, there debt lies: but if I retain one to be attorney for another and promise if the other doth not pay, that I will pay, there if the party for whom the retainer is doth not pay, an action of the case lies against me upon my promise,

and not an action of debt.' In confirmation of this sound distinction see Woodhouse v. Bradford, 2 Roll. R. 76, Cro. Jac. 520; Sanborn v. Merrill, 41 Me. 467; Hodges v. Hall, 29 Vt. 209; Murphey v. Gates, 81 Wis. 370, 51 N. W. 573."

83 See, e. g., Richardson Press v. Albright, 224 N. Y. 497, 121 N. E. 363. 84 Ames, Lectures Legal History, 93.

the statute by the mere fact that some one other than the promisor has received the benefit of the consideration. Thus, a contract to pay for goods delivered to a third person,85 or to pay the board of a third person,86 or to pay for services rendered to a third person,87 or to repay money paid at the promisor's

request to a third person,88 is original and enforceable though oral.

§ 465. Whether a promise prior to the creation of a debt is primary or collateral is a question of construction. It is not helpful to try to establish what special words constitute a promisor who induces the creation of a debt by his promise a primary debtor, and what words indicate merely a collateral obligation to pay the debt of another. The same words in different connections and under different circumstances may warrant opposite conclusions as to which meaning the promise bears. As to words, often the subject of litigation an English judge has said: "The words, 'I will see you paid,' as it seems to me, may mean either one thing or the other. 'I will see you paid, ' that is, 'I will pay you,' or 'You shall be paid'. But I do not think these words are necessarily to be taken in the sense Mr. Cole contended for, as meaning, 'I will see that somebody else pays you,' or that 'your principal debtor pays you; and if he does not, I will be the surety for payment.' I do not think that phrase, 'I will see you paid,' has any hard and fast meaning of that kind; it must depend on the other facts of the case." 89 The same principle is applicable to other

Warner, 62 Conn. 51, 25 Atl. 450; Crowder v. Keys, 91 Ga. 180, 16 S. E. 986; Brandner v. Krebbs, 54 Ill. App. 652; Lake View Hospital Assoc. v. Nicholson, 202 Ill. App. 205; Gabbert v. Evans, 184 Mo. App. 283, 166 S. W. 635; Lohmeyer v. Young (Mo. App.), 195 S. W. 507; Peyson v. Conniff, 32 Neb. 269, 49 N. W. 340; Hazeltine v. Wilson, 55 N. J. L. 250, 26 Atl. 79; Barrett v. Johnson, 77 Hun, 527, 28 N. Y. S. 892; Boston v. Farr, 148 Pa. 220, 23 Atl. 901; Eddy v. Davidson, 42 Vt. 56; Runnion v. Morrison, 71 W. Va. 254, 76 S. E. 457; Murphey v. Gates, 81 Wis. 370, 51 N. W. 573.

88 Butcher v. Andrews, Comberbach, 473; Harris v. Huntbach, 1 Burr. 373; Davis v. Tift, 70 Ga. 52; Stoltenberg v. Johnson, 163 Ill. App. 422; Rubey Trust Co. v. Weidner, 174 Mo. App.

692, 161 S. W. 333; Dux v. Spielberg, 140 N. Y. S. 410; Richardson v. Parker, 33 Okla. 339, 125 Pac. 442; Uvalde Nat. Bank v. Brooks (Tex. Civ. App.), 162 S. W. 957; Drovers' Deposit Nat. Bank v. Tichenor, 156 Wis. 251, 145 N. W. 777.

89

Pigott, B., in Mountstephen v. Lakeman, L. R. 7 Q. B. 196, 205. To the same effect, see Mulholland v. Jones, 83 N. J. L. 604, 83 Atl. 875. As to similar words the Florida court said in West v. Grainger, 46 Fla. 257, 35 So. 91, 94; "The language used by Cassels imports prima facie a collateral engagement; that is, that West, Wiggs & Co. would see that Bardin paid his debt to Grainger for services rendered or to be rendered, or that they would pay it if Bardin did not. It is true that circumstances may exist which will

language. Unless the determination of the matter depends solely upon the construction of a written contract, the question should be submitted to the jury.90 The question to be determined is first whether the defendant promised absolutely; if so, whether any other absolute obligation arose simultaneously. If the defendant alone promised, unquestionably his promise is without the statute; and so it is if any other promise which was made was conditional on the defendant's prior default. If more than one promised absolutely, the matter will be governed by the principles stated in the next section. Evidence that the original charge was to one person or the other, though strongly tending to prove the creditor's intention that the primary obligation should rest upon that person, is not conclusive; 91 nor is the fact that a promise is called by the show that an engagement in the language used by Cassels was intended to be original, and not collateral, Craft v. Kendrick, 39 Fla. 90, 21 So. 803; Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826; Grant v. Wolf, 34 Minn. 32, 24 N. W. 289; Amort v. Christofferson, 57 Minn. 234, 59 N. W. 304; but the circumstances under which the promise was made in this case do not, in the opinion of the court, affect this result here. Wagner v. Hallack, 3 Colo. 176; Rose v. O'Linn, 10 Neb. 364, 6 N. W. 430; Morrissey v. Kinsey, 16 Neb. 17, 19 N. W. 454; Walker v. McDonald, 5 Minn. 455 (Gil. 368); Payne v. Baldwin, 14 Barb. 570; Walker v. Richards, 41 N. H. 388; Brown v. Weber, 38 N. Y. 187; Robertson v. Hunter, 29 S. C. 9, 6 S. E. 850; Pettit v. Braden, 55 Ind. 201; Haverly v. Mercur, 78 Pa. 257; Lewis v. Lewis Lumber Mfg. Co., 156 Pa. 217, 27 Atl. 20; Hall v. Woodin, 35 Mich. 67." See also Day v. Adcock, 11 Ala. App. 471, 66 So. 911; Corcoran v. Huey, 231 Pa. 441, 80 Atl. 881.

90 Day v. Adcock, 11 Ala. App. 471, 66 So. 911; Lusk v. Throop, 189 Ill. 127, 59 N. E. 529; Fairbanks v. Barker, 115 Me. 11, 97 Atl. 3; Stone v. Walker, 13 Gray, 613; Downs v. Perkins, 207

Mass. 409, 93 N. E. 645; McGowan Commercial Co. v. Midland Coal, etc., Co., 41 Mont. 211, 108 Pac. 655; Chesebrough v. Tirrill, 61 N. J. L. 628, 41 Atl. 215; Whitehurst v. Padgett, 157 N. C. 424, 73 S. E. 240; Lorick v. Caldwell, 85 S. Car. 94, 67 S. E. 143; Security Bank Note Co. v. Shrader, 70 W. Va. 475, 74 S. E. 416, Ann. Cas. 1914 A. 488.

91 Clark v. Jones, 87 Ala. 474, 6 So. 362; Lusk v. Throop, 189 Ill. 127, 59 N. E. 529; Myer v. Grafflin, 31 Md. 350, 100 Am. Dec. 66; Stone v. Walker, 13 Gray, 613; Walker v. Hill, 119 Mass. 249; Larson v. Jansen, 53 Mich. 427, 19 N. W. 130; Wittenberg v. Fisher, 183 Mo. App. 347, 166 S. W. 1106; McGowan Commercial Co. v. Midland Coal, etc., Co., 41 Mont. 211, 108 Pac. 655; Walker v. Richards, 41 N. H. 388; Gallagher v. McBride, 66 N. J. L. 360, 49 Atl. 582; Foster v. Persch, 68 N. Y. 400; White v. Tripp, 125 N. C. 523, 34 S. E. 686; Kesler v. Cheadle, 12 Okla. 489, 72 Pac. 367; Mackey v. Smith, 21 Oreg. 598, 28 Pac. 974; Repair v. Krebs Lumber Co., 73 W. Va. 139, 80 S. E. 140. But see Millsaps v. Nixon, 102 Ark. 435, 144 S. W. 915; Rottman v. Fix, 25 Mo. App. 571.