debt in his schedule as owing by Thompson, and saying nothing about any demand against the defendant. At the trial the plaintiff had a verdict, various exceptions having been taken by the defendant, calculated to present the question whether the promise was within the statute of frauds. The judgment rendered upon the verdict was reversed in the Court of Appeals; partly because the court thought that even if the promise was valid, as to the work thereafter to be done, it would be within the statute; inasmuch as it was entire, and related also to work previously done. But the court also took the distinct ground, that as to the work thereafter to be done, the evidence tended to show that Thompson continued to be liable upon his contract with the plaintiff, notwithstanding the defendant's promise, and the completion of the work in consequence thereof; the instructions, given and refused at the trial, having failed to lay down clearly the rule of law, that in such a case the defendant's promise to pay for that work was within the statute.

303. But the principle upon which the last case was decided, was perhaps pushed beyond its true limits, in the recent case of Bresler v. Pendell, 12 Michigan, 224, A. D. 1864. There one C. E. B. had made a contract with one St. Amour, for the erection by St. Amour of a block of buildings; and the latter had sub-let part of the work to the plaintiff. After such sub-letting the plan of the block was twice changed, in certain particulars tending to increase the expense of erection. The plaintiff commenced the work; but St. Amour twice failed to make the payments stipulated for by his agreement with the plaintiff; and on each occasion, as the report says, the plaintiff "abandoned said job, and refused to proceed further with the same; that on both of said occasions, the defendant requested said plaintiff not to abandon said job, and promised him that if he would continue the same to completion, he, the said defendant, would pay him, or would see him paid." Under this promise, the plaintiff on each occasion resumed his work, and finally

completed it; the defendant being frequently present, and giving directions, while the work was going on. These facts were found by a referee, who also found "that the said original contract between St. Amour and the plaintiff was still in existence and uncancelled;" that the extra work (the nature and value of which were detailed in his report), was not included in the contract between the plaintiff and St. Amour; that it was done at the request of the defendant; and that the defendant promised to pay therefor. It was held by the referee and the court below, that the defendant was not liable for so much of the work, as was included in the contract between the plaintiff and St. Amour; but that he was liable for the value of the extra work, and judgment was rendered for that only.

§ 304. The defendant brought a writ of error, and the judgment was reversed, the Supreme Court holding that there could be no discrimination between the work mentioned in the contract, and the extra work. Manning, J., said that if either was done on the defendant's promise, "it was not on his sole promise, but on his promise in connection with the previous promise of St. Amour;" for which reason, if the defendant's engagement was supported by any consideration, it should have been in writing; and that if the plaintiff abandoned the work, because St. Amour did not pay him, and afterwards resumed it on the defendant's promise, the evidence showed that he looked to St. Amour for his pay, and not to the defendant, except as a surety or a guarantor. The nature of this evidence is not stated in the report; but if it supported the referee's conclusions of fact, it is difficult to see upon what principle, a finding in favor of the plaintiff, for the whole amount of his demand, could have been properly set aside. With respect to the extra work, there is nothing to show (although a large portion of the finding is given verbatim) that St. Amour made any promise to pay for it. The decision was probably put upon the ground, that the referee's finding was against the weight of evidence.

was extinguished, and a new debt due the plaintiffs from the defendants created by the arrangement.

§ 356. The converse of the principle controlled the decision of Sternburg v. Callanen, 14 Iowa, 251, A. D. 1862. There the action was founded upon an alleged agreement, between the defendants and the plaintiff, made soon after the formation of a copartnership between the defendants; whereby the firm agreed to pay a debt due to the plaintiff from the defendant Stevens. There were various defences, among them that the alleged agreement was, as to the defendants Callanen and Ingham, without consideration and within the statute of frauds. There was some evidence of an assumption of the debt by one of the new partners, in behalf of the firm, but nothing to show that the other assented to it, or subsequently ratified it. The plaintiff had a verdict and judgment, which was reversed upon appeal. The court held that in order to sustain a promise of that character, either at common law or within the statute of frauds, "there must be a novation of the debt before the new firm is liable. In order to make it a new debt the old one must no longer exist." And the judge having ruled at the trial that the new firm was liable even if the debt was not discharged, it was held that an exception to the ruling was well taken, and the judgment was reversed for that reason, and also because the alleged promise was the unauthorized act of one partner only.(m)

§ 357. The correlative of the proposition which we have been discussing, namely, that the creditor of a partnership, by accepting the individual liability of one of the partners in lieu of the liability of the firm, discharges the other partner, seems to have been generally recognized, without reference to any question arising under the statute of frauds.(n)

(m) And see Taylor v. Hillyer, 3 Blackford (Indiana), 433, cited in chapter xiv, article iii, and other partnership cases there cited.

(n) Collyer on Partnership, §§ 557 to 562.

CHAPTER ELEVENTH.

CASES DEPENDING UPON THE WORDS ANOTHER PERSON." THE SUBJECT COMMENCED WITH THOSE ILLUSTRATING THE GENERAL PROPOSITION, THAT IN ORDER TO BRING THE PROMISE WITHIN THE STATUTE, IT MUST HAVE BEEN MADE TO THE CREDITOR.

§ 358. The last chapter completes the examination of that numerous class of cases depending upon the words, "debt, default, or miscarriages;" constituting the fourth class of the second general division. We are now to consider the fifth and last class; which was stated, in defining the terms of our classification, to consist of those, where there was nobody in the transaction, to whom the term "another person" could apply. (a) It was mentioned, at the same time, that upon principle, it would seem that this class might be extended further than the decisions carry it. Especially is this true with respect to the contract of a factor, in whose hands goods are placed by his principal for sale upon credit, with the stipulation that he shall respond for the payment of the purchase price, by the persons to whom he shall make sales; in other words, a factor who acts under a del credere commission. It appears to be well settled, in England and in the United States, that contracts of this kind are not within the statute of frauds, but the reasons assigned for this conclusion are not entirely satisfactory. These cases are made to depend upon considerations connected with the degree of diligence, which the agent assumes by his contract; whereas it is very clear that no diligence, however great, not even the continued solvency of the purchaser, will exempt the agent from liability to pay the debt, if the

(a) Section 70, and note.

purchaser has in fact failed to discharge it at maturity. (b) In that aspect, such undertakings are contracts of guaranty in the most undisguised form, and can only be taken out of the statute upon the ground, that although within its letter, they are not within its intent and meaning. But it is believed, that in truth they are not within its letter; because, at the time when the contract was made, no person was designated, for whose debt or default the factor undertook to answer. In other words, there was no one, to whom the term "another person" could by any possibility apply.

§ 359. For the same reason it would appear, that when the promise was to pay the debt owing by a person, who had deceased intestate, or without having appointed an executor, and no administrator had been appointed at the time of the promise, the case was not within the statute. Perhaps, also, the principle would extend to a case where the deceased had left a will, designating an executor, but the executor named therein had not accepted the trust, or qualified, if a special qualification is required by statute. The original debtor being dead, and no one having become liable for the debt, in a representative capacity, it would seem impossible, in such cases, to satisfy the words, "another person.' But although this state of facts has occasionally been presented, and it has been held that the promise was not within the statute, the courts have failed to assign this as a reason for the decision; and hence we can only speculate, whether it would not have solved the difficulty, without resorting to some other theory which was of less obvious application.(c)

§ 360. Although the point has never been expressly decided, as far as we have noticed, it has been several times assumed that the statute includes a corporation, in

(b) See chapter eighteenth, article second.

(c) Mease v. Wagner, 1 McCord (South Carolina), 395; Tomlinson v. Gill, Ambler, 330; Ledlow v. Becton, 36 Alabama, 596; Templetons v. Bascom, 33 Vermont, 132.