the defendant, would pay the plaintiff $50. The fact may be that this $50 was exactly the sum A owed the plaintiff. Now, the defendant's promise was not to pay A's debt, but to pay the plaintiff $50 if the plaintiff would not proceed with his threatened action against A. True, A's debt continued, but the defendant's promise to pay the $50 was not to pay the $50 which A owed. The line a-b existed, so did b-c, but the defendant's promise was not collateral, because it was not to pay A's debt, but $50, an entirely different obligation. Therefore, the defendant is liable, because he was not agreeing to pay the debt of another person.57 It so happens that the consideration for the defendant's promise here was a detriment to the promisee, yet the defendant was liable because his liability was not collateral to that of A. A principal debtor for the identical obligation in whole or in part which the defendant promised to assume is required in order for the statute of frauds to operate.

It is not essential that the obligation represented by the line a-b be the promise of the principal obligor. If it be a debt it is sufficient. For instance, if the plaintiff have a lien on property of the principal debtor, the defendant's verbal promise to assume its payment in consideration of the plaintiff's forbearance to proceed to foreclosure on the property of the principal obligor, is not enforceable.58 Sufficient consideration exists. But as it is merely forbearance to sue, it does not come within

57 Read v. Nash (1751) 1 Wilson 305, 95 English Rep. Reprint 632. See explanation of Read v. Nash in Williams v. Leper (1766) 3 Burrow 1886; also, see Goodman et al. v. Chase (1888) 1 B. & A. 297.

In Edwards v. Kelley (1817) 6 Man. & Sel. 204, 208, 105 Eng. Reports Rep. 1219, E. K., being plaintiff's tenant, on March 13, 1815 plaintiff distrained for rent in arrears. Defendant verbally promised to pay all rent which would be due by December 25 next. Held, the plaintiff recovered, as this was not a promise to answer for another's debt, on this reasoning: "After the plaintiff had distrained, he held in

his own hands his remedy for recovering the rent, and the tenant was at that time no longer indebted; for so long as the landlord held the goods under distress the debt due from the tenant was suspended. . . . I think that the present case is neither within the letter nor mischief of the Act of Parliament, which was aimed at cases where a debt being due from one person, another engaged to pay it for him. But here, for the reason above stated, at the time when the promise was made, the debt was not owing from the tenant."

58 Mallory v. Gillett (1860) 21 N. Y. 412.

any exception recognized by the cases, and the defendant's promise will not make him liable unless it is in writing and signed by the promisor or his agent.59

The cases would seem to authorize the rule that where there is a prior existing or concurrently assumed debt or obligation by the principal debtor, or a lien on the principal's property held by the obligee, and the defendant-guarantor-obligor-promisor, in consideration of a detriment to the promisee, there being no benefit to the defendant, verbally promises to pay the debt or lien of the principal, the defendant is not liable, unless his promise is in writing and signed by him or by his authorized representative.

§ 56. Where the consideration is an incidental benefit to the promisor. This class will be confined to those cases where the consideration inures to the advantage of the promisor, but no property or pecuniary advantage is acquired by him as a result. The principal's debt coexists with the defendant's promise to pay, and the incidental effect is to benefit the defendant, but the principal object of the defendant's promise is to benefit the principal debtor.

That the defendant has received some benefit as consideration for his promise does not take the case without the operation of the statute of frauds. Unless the debt or lien on the property of the principal, which the plaintiff relinquishes, at the same time, and because of the defendant's promise, directly inures to the defendant's advantage, so as in effect to be a purchase by the defendant of the plaintiff's right to such debt or lien, the promise must be in writing in order to be enforceable. For example, suppose the defendant, having a previous mortgage on the principal's personalty, verbally promises that he will pay the principal's debt in consideration that the promisee will not attach the same property: it is not enforceable, because the statute requires it to be in writing.60 The forbearance of the

59 But see Townsend v. White (1897) 102 Iowa 477, 71 N. W. 337, which held that an agreement between a vendor and vendee of materials that the vendor's lien for the materials should be subordinated to a mechanic's lien, was not within

the statute of frauds, and the liens attached as agreed by the parties. 60 Ames v. Foster (1871) 106 Mass. 400, 8 Am. Rep. 343. Compare Scott v. White (1874) 71 Ill. 287.

plaintiff to attach here does not inure to the benefit of the defendant, because the defendant's mortgage, being prior, already was a lien on the property. The principal's debt was not extinguished, and any legal benefit of the promise inures to the benefit of the principal debtor. True, there is an incidental benefit to the defendant in that by the withdrawal of the action to attach, he is saved expense of asserting his rights, or having the temporary custody of the mortgaged property in the hands of another; but this was not the principal object of the defendant in making his promise. It would be an entirely different case, however, if the defendant owned the personalty on which there was a lien incurred by a former owner, and the plaintiff forebore to sue on the defendant's promise to pay the obligation.61 A promisor who is a stockholder in a corporation which receives the direct and immediate benefit from a contract is not bound by his agreement, where the original debtor remains liable.68

§ 57. The new consideration theory. Any intelligible discussion of this class of cases requires a consideration of the historical development, which, in turn, makes necessary a reference to certain selected and leading cases. Where the motivating purpose of the defendant's verbal promise is the benefit conferred on him by the promisee, the third person continuing liable, not all the cases can be reconciled.

An early English case blazed the trail along which certain American jurisdictions subsequently pioneered, when it announced that:

the modern determinations have made a distinction between a promise to pay the original debt, and on the foot of the original contract, and where it is on a new consideration.'' 63

61 Fears v. Story (1881) 131

Mass. 47.

62 Mechanics and Traders' Bank 7. Stettheimer (1906) 116 App. Div. 198, 101 N. Y. Supp. 513; Richardson Press v. Albright (1918) 224 N. Y. 497, 121 N. E. 362; Turner v. Lyles (1903) 68 S. C. 392, 48 S. E. 301; Hurst Hardware Co. v. Good

man (1910) 68 W. Va. 462, 69 S. E. 898, 32 L. R. A. (N. S.) 598, Ann. Cases 1912-B, 218.

63 Tomlinson v. Gill (1756) Amb. 330, 27 Eng. Reports Reprint 221. See Williams v. Leper (1766) 3 Burrow 1886, 97 Eng. Rep. Reprint 1152.

Sometimes the view expressed in this case is referred to as the "new consideration" theory. In 1811, in one of the earliest expressions on the subject by an American court, Chief Justice Kent, basing his statement in part on the authority of Tomlinson v. Gill, supra, as having clearly settled the doctrine, said:

"But if a promise to pay the debt of another be founded on a new and distinct consideration, independent of the debt, and one moving between the parties to the new promise, it is not a case within the statute. It is considered in the light of an original promise."' 64

This doctrine, while followed in some jurisdictions, it is submitted is unsound in principle,65 and has been repudiated by the same court. Over 75 years later, the same court in Rintoul White 66 traced the cases in that state and showed the limita

V.

64 Leonard v. Vredenburgh (1811) 8 Johns. (N. Y.) 29, 5 Am. Rep. 317. Accord: Chapline v. Atkinson & Co. (1885) 45 Ark. 67, 55 Am. Rep. 531; Wright v. Smith (1886) 81 Va. 777; Lookout Mountain Railroad Co. v. Houston (1886) 85 Tenn. 224, 226, 2 S. W. 36; Templeton v. Bascom (1860) 33 Vt. 132.

65 Brandt on Suretyship (1905, 3d Ed.) Sec. 80, observed of Kent's statement: "The proposition of the learned judge was not necessary to a decision of the case in which it was laid down, and, as stated by him, cannot be supported on principle, nor by the later and best-considered authorities. There must be a consideration for every contract of surety or guaranty; and to hold that in every case where the consideration moves from the creditor to the surety or guarantor, the promise is not within the statute, would be to repeal the statute altogether in a very large class of cases.''

Muller v. Riviere (1883) 59 Texas 640, 642-643, says: "What is to be regarded as a sufficient consider

ation, however, to take the promise out of the operation of the statute of frauds, involves the determination of the relation which the consideration in the contract bears to the transaction itself. It is not sufficient that the consideration is merely a good one, to support a promise to pay a debt of the promisor to the promisee as an original undertaking, but the promise being one to pay the debt of another, if a new and distinct consideration for the promise alone would take the case out of the statute, the statute would be entirely nullified.''

Browne on Statute of Frauds (1895, 5th Ed.) Sec. 212 says of Kent's view: "However respectable the countenance it has received, this doctrine, if unqualified, must be repudiated as not based upon authority, and as, to a great degree, nullifying the statute."

See Maule v. Bucknell (1865) 50 Pa. St. 39, 53.

66 (1888) 108 N. Y. 222, 15 N. E. 318. The New York cases are also well analyzed in Hurst Hard

tions which had been placed upon Kent's dictum. First, Mallory v. Gillett,67 by a divided court, "shut out at once from the class of original promises all those in which the consideration of the promise was harm to the promisee, and the resultant benefit moved to the debtor, instead of the promisor." 68 Then in Brown v. Weber 69 the view was taken that "a promise might still be collateral even though the new consideration moved to the promisor, and was beneficial to him. It was distinctly said that the existence of those facts would not, in every case, stamp the promise as original, but the inquiry would remain whether such promise was independent of the original debt or contingent upon it." 70 Hence it is apparent that the New York court no longer adheres to the new consideration theory.

§ 58. The main purpose rule. Chancellor Kent's view diverged from that of Chief Justice Shaw, who, in a celebrated Massachusetts case, held that neither a detriment to the promisee nor a new consideration to the promisor would necessarily prevent the operation of the statute of frauds, if the original debtor remained primarily liable. In this case of Nelson v. Boynton 7 the defendant verbally promised the plaintiff that if the plaintiff would discontinue a suit against the defendant's father, and withdraw an attachment against the father's realty, the defendant would pay the amount due on the notes on which the father was then, and continued to remain, liable. The court held this promise of the defendant was within the statute; and though sufficient consideration for it existed, the statute of frauds

ware Co. v. Goodman (1910) 68 West Va. 462, 69 S. E. 898, 32 L. R. A. (N. S.) 598, Ann. Cases 1912 B, 218, and also in Kiernan v. Kratz (1902) 42 Oregon 474, 478482, 69 Pac. 1027, 70 Pac. 506. The reader will be well repaid to study the exhaustive and learned article on "Suretyship and the Statute of Frauds" by Professor Charles K. Burdick of the Cornell Law School in (1920) 20 Col. Law Rev. 153, in which he considers the New York cases. They are also discussed in

Browne on Statute of Frauds (1895, 5th Ed.) Secs. 166-b-172.

67 (1860) 21 N. Y. 412. 68 Rintoul v. White (1888) 108 N. Y. 222, 15 N. E. 318, 319.

69 (1868) 38 N. Y. 187. 70 Rintoul v. White (1888) 108 N. Y. 222, 15 N. E. 318, 320. See Ackley v. Parmenter (1885) 98 N. Y. 425, 433, 50 Am. Rep. 693.

71 (1841) 3 Met. (Mass.) 396, 37 Am. Dec. 148. Accord: Frohardt v. Duff (1912) 156 Ia. 144, 135 N. W. 609, 40 L. R. A. (N. S.) 242, Ann. Cases 1915 B, 254.