It will be noted that "damage to the other contracting party" is not said to take the agreement out of the statute of frauds, unless the "main purpose and object of the promisor" is "to observe some pecuniary or business purpose of his own." It is the "main purpose and object" to which the court looks, and not the consideration exclusively. Detriment to the promisee may furnish consideration; but unless there concurs (1) sufficient consideration and (2) the main and primary purpose of the defendant's verbal promise to benefit himself, the defendant is not liable, if his promise is not in writing and signed, within the rule of Emerson v. Slater.

The second leading expression of the Supreme Court was given by Mr. Justice Brewer in Davis v. Patrick.82 The rule from Emerson v. Slater, above quoted, was referred to with approval. In Davis v. Patrick, the defendant was a large creditor of the Flagstaff Mining Co. for money advanced to it. The Flagstaff Mining Co. was, by an agreement with the defendant, to deliver a large quantity of ore as security for this loan. The Flagstaff Mining Co. also agreed to place the mine under the sole management of the plaintiff, and gave to the plaintiff a power of attorney. The plaintiff not being paid for his services,

others, controlling directors in a corporation, resigned and transferred their stock to the defendants in consideration that the defendants might become directors, and pay plaintiff certain rents due from the corporation. The defendant's promise was verbal. The court held the defendant's promise was within the statute and unenforceable. (1) The transfer of the stock to the defendants and the resignation of the plaintiff were to enable the defendants to become directors, and not to place in the defendant's hands funds with which to pay the debts. Obviously there was a "business purpose of his own," but the sense in which it is used must be limited to cases where something more than business control is gained.

Interest in the business, with the agreement to pay debts therewith, is necessary. (2) The court said (p. 51): "Nor can it make any difference that the new consideration moves from the promisee to the promisor.''

82 (1891) 141 U. S. 479, 488, 35 L. Ed. 826, 12 Sup. Ct. 58. Accord: Prout v. Webb (1889) 87 Ala. 593, 6 So. 190; Clay v. Walton (1858) 9 Cal. 328; Borchsenius v. Canutson (1881) 100 Ill. 82; Mills v. Brown (1860) 11 Iowa 314; Pratt v. Fish wild (1903) 121 Iowa 642, 96 N. W. 1089; Alger v. Scoville (1854) 1 Gray (Mass.) 391, 396; Wills v. Brown (1875) 118 Mass. 137; Colbath v. Clark Seed Co. (1914) 112 Me. 277, 91 Atl. 1007; State ex rel. Tutton v. Eber

the defendant verbally promised to see him paid if he would continue his employment. The defendant was held to be liable on his verbal promise. The court pointed out that a different rule applied in case the verbal promisor is a stranger to the transaction, than where he has a pecuniary interest in it. As to a stranger, Justice Brewer said, "courts strictly uphold the obligations of this statute." Where the promisor is given an advantage even though a third person continues to be liable, he adds:

"But cases sometimes arise in which, though a third party is the original obligor, the primary debtor, the promisor has a personal, immediate and pecuniary interest in the transaction, and is therefore himself a party to be benefited by the performance of the promisee. In such cases the reason which underlies and which prompted this statutory provision fails, and the courts will give effect to the promise.

8 60. The true test. That a detriment is incurred to the promisee or a benefit to the promisor is not the test. True, there must be the one or the other in order to have the necessary consideration. But "whether the debt is that of another is the true test." 88 If the object of the verbal promisor is to subserve a pecuniary or proprietary interest of his own by participating in

hardt (1883) 14 Neb. 201, 15 N. W. 320, with which compare Morrissey v. Kinsey (1884) 16 Neb. 17, 19 N. W. 454; Rice V. Hardwick (1912) 17 N. M. 73, 124 Pac. 800; Whitehurst v. Hyman (1884) 90 N. C. 487; Crawford v. Edison (1887) 45 Oh. St. 239, 13 N. E. 80; Arnold v. Stedman (1863) 45 Pa. St. 186; Gaines v. Durham (1923) 124 S. C. 506, 117 S. E. 732; Housley v. Strawn Merchandise Co. (1923) (Tex.) 253 S. W. 673; Howell v. Harvey (1909) 65 West Va. 310, 64 8. E. 249, 22 L. R. A. (N. 8.) 1077; Hurst Hardware Co. v. Goodman (1910) 68 West

Va. 462, 69 S. E. 898, 32 L. R. A. (N. S.) 598, Ann. Cases 1912 B, 218; U. S.: Mine & Smelter Supply Co. V. Stockgrower's Bank (1909) 173 Fed. 859, 863, 98 C. C. A. 229; Guaranty Trust Co. V. Koehler (1912) 195 Fed. 669, 679, 115 C. C. A. 475.

But see Warner v. Willoughby (1891) 60 Conn. 468, 22 Atl. 1014, 25 Am. St. Rep. 343; Miles v. Driscoll (1909) 201 Mass. 318, 87 N. E. 579.

88 Hurst Hardware Co. v. Goodman (1910) 68 West Va. 462, 69 S. E. 898, 32 L. R. A. (N. S.) 598, Ann. Cases 1912 B, 218.

the main contract, then he is promising to pay his own debt, and the mere fact that another is also liable is not affected by the statute of frauds, for the defendant is primarily liable.84 The distinction is clear between the inducement to enter the contractual relation and a beneficial participation in it.85 "The directness of the expected benefit is, however, evidential of the 'main purpose' of making the promise." 86 Consideration so beneficial to the promisor as to constitute the object of the promise may impart to it the character of an original undertaking.87 As a leading American opinion, in which the views here discussed were considered, observed:

"It must however be constantly borne in mind that the question under the statute is not whether there is a sufficient consideration for the defendant's promise, but whether that promise is to answer for the debt of another." 88

The enactors of the statute of frauds intended to refuse a remedy to all verbal promises to answer for another's debt, i. e.,

84 But see Clay v. Walton (1858) 9 Cal. 328, 335. In Peterson v. Creason (1905) 47 Oregon 69, 72, 81 Pac. 574, Mr. Justice Bean said in the opinion for the court: "In such case the contract is an original, and not a collateral, undertaking. It is not the promise of one person to answer for the default or miscarriage of another, but is, in substance, the original contract of the promisor."'

It was said in Richardson Press v. Albright (1918) 224 N. Y. 497, 121 N. E. 362, 364: "When the primary debt continues to exist, the promise of another to pay the debt may be original, or it may not be; but it is regarded as original only when the party sought to be charged clearly becomes, within the intention of the parties, a principal debtor primarily liable.'' See Dyer V. Gibson (1863) 16 Wis. 580, 583.

85 Stearns on Suretyship (1922, 3d Ed.) Sec. 39.

86 Note (1924) 33 Yale Law Journal p. 884.

87 Ackley v. Parmenter (1885) 98 N. Y. 425, 433; Evans v. Shaw (1925) Tex. Civ. App. 268 S. W. 1037.

88 Furbish v. Goodnow (1867) 98 Mass. 296, 297. It is thus stated in Wills v. Brown (1875) 118 Mass. 137: “... when the plaintiff has, in consideration of the promise by the defendant, relinquished some lien, benefit or advantage for securing his debt, and transferred that interest, or some equivalent benefit, to the defendant, it is a new and independent contract between the parties, although the result is that the payment of the debt of another is incidentally and indirectly effected." See also Fears v. Story (1881) 131 Mass. 47.

promises made for that purpose. They never intended to permit the defendant to set up the statute as a means of escaping his own obligations simply because involved in his verbal promise was the discharge of the debt of a third person.89

We must conclude, therefore, that the "main purpose rule" is a misnomer, for "neither such mere new consideration, however good and valuable, nor the mere fact alone that the leading object of the promisor is a benefit to himself, affords a test whereby to determine that the promise is not within the statute."' 90

§ 61. The property cases.91 As part of the main purpose rule, and in order to clarify it, a brief discussion of the so-called property cases would seem to be required. This class consists of "cases in which either the person who made the promise had property which he wished to relieve from liability, or there was property which he wished to acquire." 92 It is to be noted that a creditor's or stockholder's interest by the defendant in the property of the principal debtor is not sufficient to take the promise out of the statute. But if the defendant has a substantial interest in the property, a promise made by him to pay an obligation thereon for which another is also liable, will make the defendant responsible. That was the view of Cockburn,

89 Browne on Statute of Frauds (1895, 5th Ed.) Sec. 212; Malone v. Keener (1862) 44 Pa. St. 107, 109.

90 Muller v. Riviere (1883) 59 Texas 640, 645, 46 Am. Rep. 291.

91 This classification was first suggested in Harburg India Rubber Comb Co. v. Martin (1902) 1 K. B. 778, 784, involving "cases in which either the person who made the promise had property which he wished to relieve from liability, or there was property which he wished to acquire." The same classification was subsequently followed by the Court of Appeal of Ontario in Adams v. Craig (1911) 24 Ont. L. R. 490,

500, which observed, after quoting the above language from the Harburg India Rubber Case, that: "But reference to other portions of his judgment and of that of the other Lords Justices shows that they understood the rule to extend to cases in which the person making the promise had an interest merely, as well as cases in which he had an absolute property in goods of which the release was sought." See criticism of this classification by Professor C. D. Henning in (1909) 57 U. of Pa. L. R. 611, 625.

92 Harburg India Rubber Comb Co. v. Martin (1902) 1 K. B. 778, 784.

C. J., in the language heretofore quoted.93 In the case before him the verbal promisor had a property in certain linseed, on which the plaintiff had a vendor's lien, for which a third person was also responsible. The opinion presented the correct view, that since the defendant had a property in the seed, and the plaintiff gave up a lien thereon, in reality the defendant promised to pay off an obligation for which his own property was responsible.

But if the defendant verbally promises to pay a lien on property on which he holds a prior mortgage, in consideration of the plaintiff's forbearance to sue for the amount of the lien, the promise is not enforceable, even if the plaintiff withdraws his threatened action, because the defendant acquires no interest by the plaintiff's release which he did not before possess. One cannot be an original promisor, where a principal debtor remains liable, unless he obtains some advantage not existing without the promise.94 The liability to which one is held who promises verbally to pay the continuing debt of another, where his property is benefited, is in entire accord with the general statement of the main purpose rule in leading English and American cases.

§ 62. The document cases. The rule applicable to this class of cases is not different from the one in property cases or the general rule. Because of reference to this as a special class in a leading case, its recognition would seem to be justified.95 The classification is perhaps unjustified in principle.96

Where the plaintiff had a lien on certain insurance policies for his principal for whom he had given his acceptances, and the defendant, needing the possession of the policies, in order to collect the money from the underwriters for the principal, verbally promised plaintiff that he would provide for the acceptance as they became due to the plaintiff, in consideration that the

93 See quotation from Fitzgerald v. Dressler (1859) 7 C. B. (N. S.) 374, 141 Eng. Reports Reprint 861, note 77, supra.

94 Ames v. Foster (1871) 106 Mass. 400.

95 Harburg India Rubber Comb Co. v. Martin (1902) 1 K. B. 778, 793.

96 See Falconbridge on "Guarantees and Statute of Frauds" (1919) 68 U. of Pa. L. R. 1, 15.