direct right against the new promisor. Where this is the law the promise to the debtor must be regarded as in effect a promise to the creditor, and the application of the statute must be considered as if a new promise had been made directly to the creditor. So looking at the matter a promise to assume and pay an existing debt is not within the statute if it operates like a novation to extinguish the liability of the original debtor. In a few jurisdictions such is held to be the effect of the promise, and in these jurisdictions, the same reasoning is followed as in any case of novation.44

In most American jurisdictions, however, the creditor is held to retain his right against his original debtor as well as to acquire a direct right against the new promisor.44a Even in such jurisdictions the new promise is outside the scope of the statute, if by virtue of the promisor's contract with the original debtor, he has become as between the two the principal debtor. He has, then, received consideration equivalent to the amount of the debt, and the debt is primarily his. The principle is applied in a variety of cases. Thus where the grantee of mortgaged property assumes the mortgage, his obligation to the creditor is not within the statute.45 So where an interest as a partner, is bought or sold, and as part of the consideration the buyer agrees to pay firm debts, the right thereby acquired in most States by creditors is not dependent on the agreement being in writing.46 And in any case where the purchaser of

44 This reasoning is followed in Aldrich v. Carpenter, 160 Mass. 166, 170, 35 N. E. 456 (applying Rhode Island law); Lang v. Henry, 54 N. H. 57; Wood v. Moriarty, 15 R. I. 518, 9 Atl. 427, 16 R. I. 201, 14 Atl. 855.

44 See supra, § 393.

45 Mulvany v. Gross, 1 Col. App. 112, 27 Pac. 878; Tuttle v. Armstead, 53 Conn. 175, 22 Atl. 677; Lowe v. Hamilton, 132 Ind. 406, 31 N. E. 1117; Lamb v. Tucker, 42 Ia. 118; Fisher v. Spillman, 85 Kans. 552, 118 Pac. 65; Flint v. Winter Harbor Land Co., 89 Me. 420, 36 Atl. 634; Dobyns v. Rice, 22 Mo. App. 448; Provenchee v. Piper, 68 N. H. 31, 36 Atl. 552; Huyler v.

Atwood, 26 N. J. Eq. 504, affd. in 28 N. J. Eq. 275; Urquhart v. Brayton, 12 R. I. 169; Beitel v. Dobbin (Tex. Civ. App.), 44 S. W. 299; Thompson v. Cheeseman, 15 Utah, 43, 48 Pac. 477; Bicknell v. Henry, 69 Wash. 408, 125 Pac. 156; Morgan v. South Milwaukee, etc., Co., 97 Wis. 275, 72 N. W. 872. So where the buyer of chattel property under a conditional sale, assigned the property to one who assumed payment of the remainder of the price. Pembroke's Appeal, 117 Me. 396, 104 Atl. 630.

46 Vanness v. Dubois, 64 Ind. 338; Dickson v. Conde, 148 Ind. 279, 46 N. E. 998; Poole v. Hintrager, 60 Iowa,

property agrees as part of the price to pay the seller's debt to a third person, or perform a contract with a third person, the same principle is applicable. Indeed in any case where the promisor for valid consideration assumes the payment of a debt, the same principle applies, for the promisor becomes the principal debtor; 48 but this is not true where the new promisor owed nothing to the original debtor and received nothing from him or from the creditor.49

§ 479. A promise to pay the promisor's own debt to his creditor's creditor is not within the statute.

Nor is the principle different where a promisor previously indebted undertakes for sufficient consideration to pay the debt, or part of it, to a creditor of his own creditor. Here, too, the promisor is undertaking merely to pay his own debt, he 180, 14 N. W. 223; Pratt v. Fishwild, 121 Ia. 642, 96 N. W. 1089; Bartlett v. Smith, 5 Neb. Unoff. 337, 98 N. W. 687; Smart v. Smart, 97 N. Y. 559; Lyon v. Clochessy, 43 N. Y. Misc. 67, 86 N. Y. S. 245; Townsend v. Long, 77 Pa. St. 143, 18 Am. Rep. 438; Brazee v. Woods, 35 Tex. 302; Brown v. Brown (Tex. Civ. App.), 155 S. W. 551; Gay v. Pemberton (Tex. Civ. App.), 44 S. W. 400. See also Stover v. Stevens, 21 Cal. App. 261, 131 Pac. 332; Bracken v. Dillon, 64 Ga. 243.

47 Weinhard v. R. R. Thompson Est., 242 Fed. 315, affd. sub nom. R. R. Thompson Est. v. Weinhard, 247 Fed. 951, 160 C. C. A. 376; La Duke v. Barbee, (Ala. 1916), 73 So. 472; Ford v. Finney, 35 Ga. 258; Cowart v. Singletary, 140 Ga. 435, 79 S. E. 196, 47 L. R. A. (N. S.) 621 Lowe v. Turpie, 147 Ind. 652, 44 N. E. 25 (reported on later appeal in 158 Ind. 47, 62 N. E. 628); 37 L. R. A. 233; Johnson v. Knapp, 36 Ia. 616; Blair Town Lot Co. v. Walker, 39 Ia. 406; Morrison v. Hogue, 49 Iowa, 574; Plano Mfg. Co. v. Burrows, 40 Kans. 361, 19 Pac. 809; Mudd v. Carico, 104 Ky. 719, 47 S. W. 1080, 20 Ky. L. Rep. 898; Stariha v. Greenwood, 28 Minn. 521, 11 N. W.

76; Lee v. Newman, 55 Miss. 365; Clopper v. Poland, 12 Neb. 69, 10 N. W. 538; Berry v. Doremus, 30 N. J. L. 399; Satterfield v. Kindley, 144 N. C. 455, 57 S. E. 145; Swihart v. Shaum, 24 Ohio St. 432; Feldman v. McGuire, 34 Oreg. 309, 55 Pac. 872; Miller v. Beck, 72 Oreg. 140, 142 Pac. 603; Taylor v. Preston, 79 Pa. 436; Elkin v. Timlin, 151 Pa. 491, 25 Atl. 139; Morris v. Gaines, 82 Tex. 255, 17 S. W. 538; Traders' Nat. Bank v. Clare, 76 Tex. 47, 13 S. W. 183; Hoile v. Bailey, 58 Wis. 434, 17 N. W. 322. But see Cox v. Baltimore, etc., R. Co., 180 Ind. 495, 103 N. E. 337, 50 L. R. A. (N. S.) 453.

48 Bartlett v. Fireman's Fund Ins. Co., 77 Ia. 155, 41 N. W. 601 (a contract of reinsurance); French v. French, 84 Ia. 655, 51 N. W. 145, 15 L. R. A. 300; Van Cappellan v. Chicago &c. R. Co., 126 Minn. 251, 148 N. W. 104; Moore v. Kirkland, 112 Miss. 55, 72 So. 855; Repair v. Krebs Lumber Co., 73 W. Va. 139, 80 S. E. 140. Egan v. Fireman's Ins. Co., 27 La. Ann. 368, is a solitary decision to the contrary.

49 Manley v. Geagan, 105 Mass. 104. See also Walton v. Mandeville, 56 Ia. 597, 9 N. W. 913, 41 Am. Rep. 123.

is not making himself surety for the debt of another, and it is immaterial that there is no novation.50 So far as the new promisor's obligation to his promisee is concerned the situation is the same as if there were a complete novation.

§ 480. A promise to pay for the purchase of a claim is not within the statute.

Though a creditor's motive in selling his claim may be substantially the same that he has in endeavoring to get payment of it, the transaction is, nevertheless, an entirely different one. The purchaser does not promise to pay the debt; he promises to pay a price for it; and it is contemplated that the claim shall continue in existence. It is an accident if the amount which the purchaser promises to pay is identical with the amount of the debt. Accordingly a promise to buy a claim is not within the statute.51

§ 481. Application of principles to building contracts.

Cases have frequently arisen where a subcontractor or material man refuses to continue the performance of his contract because of the actual or prospective failure of the general contractor to make agreed payments; and to induce further performance by the subcontractor or material man the owner of the building promises to pay him for so doing. Where such a promise by the owner is absolute in terms and not conditional on default by the general contractor, the promise has almost universally been held original and not within the statute.52 On principle, however, distinctions should be observed.

50 Mine & Smelter Supply Co. v. Stockgrowers' Bank, 173 Fed. 859, 98 C. C. A. 229; Casey v. Miller, 3 Ida. 567, 32 Pac. 195; Beitman v. Birmingham Paint & Glass Co., 185 Ala. 313, 64 So. 600; Indiana Mfg. Co. v. Porter, 75 Ind. 428; Colvin v. Newell, 8 Ky. L. Rep. 959; Clay Lumber Co. v. Hart's Branch Coal Co., 174 Mich. 613, 140 N. W. 912; Holt v. Dollarhide, 61 Mo. 433; Woods v. Davis, 1 Tex. App. Civ. Cas., § 952; Repair v. Krebs Lumber Co., 73 W. Va. 139, 80 S. E. 140. See also supra, § 459.

51 Anstey v. Marden, 1 B. & P. N. R. 124; Humphreys v. St. Louis, etc., R. Co., 37 Fed. 307; Norman v. Bullock County Bank, 187 Ala. 33, 65 So. 371; Gist v. Harkrider (Ark.), 15 S. W. 187; Conger v. Cotton, 37 Ark. 286; Hayward v. Gunn, 82 Ill. 385; Collins v. Stanfield, 139 Ind. 184, 38 N. E. 1091; Hearing v. Dittman, 8 Phila. 307; Stillman v. Dresser, 22 R. I. 389, 48 Atl. 1; Lampson v. Hobart, 28 Vt. 697; Hoeflinger v. Stafford, 38 Wis. 391.

52 Sext v. Geise, 80 Ga. 698, 6 S. E.

In many of these cases the general contractor had abandoned his contract, and the subcontractor or material man in continuing performance no longer was performing by virtue of his contract with the general contractor, that contract being justifiably abandoned. The new promise of the owner of the building, in such a case, is not, so far as future work is concerned, to pay the debt of the general contractor. The latter will owe no debt for this performance; for it was not rendered in performance of the contract with him, and the promise of the owner is not to pay the debt of the general contractor, though the amount of his own debt may be fixed by the obligation which the general contractor would have incurred had his contract not been abandoned.53

Cases where recovery on an oral promise of the owner have been enforced are, however, not confined to those of the sort just indicated.

In many jurisdictions it seems to be held that even though the contractor still remains liable for the performance of the subcontractor or material man, the latter may enforce an abso

174; Clifford v. Luhring, 69 Ill. 401; Schoenfeld v. Brown, 78 Ill. 487; Gibson County v. Cincinnati Steam Heating Co., 128 Ind. 240, 27 N. E. 612, 12 L. R. A. 502; Cedar Valley Mfg. Co. v. Starbard (Iowa), 89 N. W. 14; Walker v. Hill, 119 Mass. 249; McLaughlin v. Austin, 104 Mich. 489, 62 N. W. 719; Wilhelm v. Voss, 118 Mich. 106, 76 N. W. 308; Abbott v. Nash, 35 Minn. 451, 29 N. W. 65; Fitzgerald v. Morrissey, 14 Neb. 198, 15 N. W. 233; Bayles v. Wallace, 56 Hun, 428, 10 N. Y. S. 191; Parkes v. Stafford, 16 N. Y. S. 756; Snell v. Rogers, 70 Hun, 462, 24 N. Y. S. 379; Schultz v. Cohen, 13 N. Y. Misc. 638, 34 N. Y. S. 927; Sinkovitz v. Applebaum, 56 N. Y. Misc. 527, 107 N. Y. S. 122; Crawford v. Edison, 45 Ohio St. 239, 13 N. E. 80; Jefferson County v. Slagle, 66 Pa. St. 202; Corcoran v. Huey, 231 Pa. 441, 80 Atl. 881; Green v. Dallahan, 54 Tex. 281; Howell v. Harvey, 65 W. Va. 310, 64 S. E. 249, 22 L. R. A. (N. S.)

1077; Young v. French, 35 Wis. 111; Petrie v. Hunter, 2 Ont. 233. See also Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516; Repair v. Krebs Lumber Co., 73 W. Va. 139, 80 S. E. 140. Cf. Beitman v. Birmingham Paint & Glass Co., 185 Ala. 313, 64 So. 600; Conti v. Johnson, 91 Vt. 467, 100 Atl. 874.

53 Cases where the general contractor abandoned the contract, areClifford v. Luhring, 69 Ill. 401; Schoenfeld v. Brown, 78 Ill. 487; Wilhelm v. Voss, 118 Mich. 106, 76 N. W. 308; Yeoman v. Mueller, 33 Mo. App. 343; Kutzmeyer v. Ennis, 27 N. J. L. 371 (3 Dutch.); Parkes v. Stafford, 16 N. Y. S. 756; Schultz v. Cohen, 13 N. Y. Misc. 638, 34 N. Y. S. 927; Desmond v. Schenck, 36 N. Y. App. Div. 317, 55 N. Y. S. 251; Mannetti v. Doege, 48 N. Y. App. Div. 567, 62 N. Y. S. 918; Crawford v. Edison, 45 Ohio St. 239, 13 N. E. 80; Petrie v. Hunter, 2 Ont. 233.

lute oral promise by the owner to pay for the work or materials. It should be observed in such a case that if the owner promises payment merely from whatever may be due by him to the general contractor, the promise is not within the statute.54 To that extent the new promisor is a primary debtor. What he pays he would have no right to recover over from the general contractor; but if, as is often the case, the original contractor remains liable and the owner undertakes absolutely to pay the subcontractor or material man whatever the services or property of the latter may be worth, irrespective of any balance due the general contractor, the promise is on principle within the statute. 55

54 S. R. H. Robinson & Son Contracting Co. v. Twin City Bank, 103 Ark. 219, 146 S. W. 523, and see infra, §§ 459, 479.

55 This was so held in Conti v. Johnson, 91 Vt. 467, 100 Atl. 874. See also Ribock v. Canner, 218 Mass. 5, 105 N. E. 462; Mankin v. Jones, 63 W. Va. 373, 60 S. E. 248, 15 L. R. A. (N. S.) 214. The case is analogous to those cited infra, § 459, where one who receives property to be applied to the payment of certain indebtedness, undertakes absolutely to pay the debt, not merely to apply the property in his hands. In Boorstein v. Moffatt, 36 Nova Scotia, 81, 86, the court quoting DeColyar on the law of Guarantees, p. 109, said: "Moreover, the question to whom the credit was given, is not an infallible test by which to discover in all cases whether or not the promise falls within the 4th section of the Statute of Frauds. For sometimes it happens that credit is entirely given to the promisor, and yet the promise is within the 4th section of the Statute of Frauds. This is the case wherever the promise has not the effect of discharging the original debtor."

Lord Ellenborough in Barber v. Fox, 1 Stark. 270, said: "This was the inchoate business, and debt of another, and if the defendant had prom

ised in writing, he would have made himself liable-without a promise in writing he is not liable."

In Wilhelm v. Voss, 118 Mich. 106, 107, 76 N. W. 308, the court said:

"The fact that Wilhelm had made a contract with Van Bogaert & Co. to do this work would not necessarily render invalid a subsequent contract with Voss to do the same work, but both of these alleged oral promises to pay for this work could not be valid at one and the same time. Unless the contract with Van Bogaert & Co. was abandoned by Wilhelm, so that there would remain no right to a claim for compensation for the work when done, as against them, the promise alleged of Voss was collateral, and void under the statute.

The right of the plaintiff to recover against the defendant must depend upon the actual state of affairs at the time the work was done. If it was done in pursuance of and under the contract with Van Bogaert & Co., the performance created an obligation against Van Boagert & Co., and not against Voss; while, if the plaintiff repudiated the contract made with that firm, so that, although he plastered the house, it was done under a different arrangement, and gave rise to no obligation upon the part of Van Bogaert & Co. to pay, the