Fowrth, the promise is original if made on a consideration moving from the debtor to the promisor ; Gold v. Phillips, 10 Johns. (N. Y.) 412; Mason v. Hall, Ala. 599; Al ger v. Scoville, 1 Gray (Mass.) 391 ; Emer son v. Slater, 22 How. (U. S.) 28, 16 L. Ed. 360 ; Peyson v. Conniff, 32 Neb. 269, 49 N. W. 340.
For the rule in a class of cases quite anal ogous, see I'rather v. Vineyard, 9 III. 40 ; Drakeley v. Deforest, 3 Conn. 272.
Where the guaranty relates to a contem poraneous or future obligation, the promise is original, (a) if credit is given exclusively to the promisor, (b) if the promise is merely to Indemnify.
In the first of these cases the question to whom credit was given must be ultimately for the jury in each case. If there is any primary liability, and the creditor resorts to the principal debtor first, the promise is col lateral. Thus, if the promisor says, "Deliver goods to A, and I will pay you," there is no primary obligation on the part of A, and the promise is orisinal ; Nelson v. Boynton, 3 Mete. (Mass.) 396, 37 Am. Dec. 148. But if he says, "I will see you paid," or, "I prom ise you that he will pay," the promise would be collateral; 1 H. Bla. 120; Andrews v. Creegan, 7 Fed. 477 ; Wagner v. Hallack, 3 Colo. 176; Stone v. Walker, 13 Gray (Mass.) 613 ; Boston v. Farr, 148 Pa. 220, 23 Atl. 901 (where it was left to the jury to decide whether it was an original undertaking).
A promise to indemnify merely against contingent loss from another's default is orig inal ; Myers v. Morse, 15 Johns. (N. Y.) 425. A doubt is expressed by Browne, Stat. of Frauds, § 158, whether the fact that mere in demnity is intended, makes the promise orig inal, because in many cases—those where the indemnity is against the default of a third person—there is an implied liability of that person, and the promise is collateral thereto. Now, there are three classes of cas es. First, it is clear that where the indem nity is against the promisor's default or debt he is already liable without his promise; and to use this as a defence and make the promise collateral thereto would be using the law as a cover to a fraud ; Stocking v. Sage, 1 Conn. 519; 6 Bingh: 506; Fenner v. Lewis, 10 Johns. (N. Y.) 42 ; Weld v. Nichols, 17 Pick. (Mass.) 538. Second, so where the only debt against which indemnity is promis ed is the promisee's, this, being not the debt of another, but of the promisee, is clearly not within the statute, but the promise is original. And even if the execution of such a promise would discharge incidentally some other liability, this fact does not make the promise collateral ; 13 M. & W. 561; Alger v. Scoville, 1 Gray (Mass.) 391; Mersereau v. Lewis, 25 Wend. (N. Y.) 243 ; Soule v. Albee, 31 Vt. 142. Third, but where there is a liability implied in another person, and the promise refers to his liability or default, and if executed will discharge such liability or default, the promise would seem on reason to be collateral and binding like a suretyship for future advances—that is, when accepted; Draughan v. Bunting, 31 N. C. 10 ; 10 Ad. &
E. 453; Kingsley v. Balcome, 4 Barb. (N. Y.) 131. But in many cases the rule is broadly stated that a promise to indemnify merely is 8 B. & C. 728 (overruled, 10 Ad. & E. 453); Alger v. Scoville, 1 Gray (Mass.) 391 ; Harrison v. Sawtel, 10 Johns. (N. Y.) 242, 6 Am. Dec. 337 (overruled, Kingsley v. Balcome, 4 Barb. [N. Y.] 131); Holmes v. Knights, 10 N. H. 175 ; Smith v. Sayward, 5 Me. 504. In other cases the distinction is made to rest on the fact that the engage ment is made to the debtor ; Aldrich v. Ames, 9 Gray (Mass.) 76; 11 Ad. & E. 438; and in other cases, on the futurity of the risk or liability ; Perley v. Spring, 12 Mass. 297.
The last ground is untenable; future guar antees binding when accepted or acted upon, and those against torts are expressly to the contrary. The first ground is•too broad, as shown above; and the second seems to ig nore the clear primary liability of the prin cipal debtor.
If a third person makes a direct and un-1 conditional agreement to pay for. property of which another is to receive the benefit, the agreement being contemporaneous with the sale of the property, and the intention both of the promisor and the promisee being that the promisor is liable In the first instance for the payment of the purchase price, the agree ment is treated as an original agreement and not within the statute of frauds, as where goods were sold to a third person on credit of the promisor ; Linam v. Jones, 134 Ala. 570, 33 South. 343 ; Sheppard v. Newton, 139 N. C. 533, 52 S. E. 143 ; Cauthron Lumber Co. v. Hall, 76 Ark. 1, 88 S. W. 594; where the landlord of a boarding house instructed the proprietor of a meat market to let his tenant (operating the boarding house) have what meat she wanted and charge it to him; Sears v. Flodstrom, 5 Idaho, 314, 49 Pac. 11; where a contractor promised a grocer to pay for groceries furnished a subcontractor; Lusk v. Throop, 189 III. 127, 59 N. E. 529; where instructions were given to furnish to desig nated persons all the goods they wanted, to charge them directly to the promisor ; Tem ple v. Goldsmith, 118 Mich. 172, 76 N. W. 324 ; Phelps v. Stone, 172 Mass. 355, 52 N. E. 517; Lessenich v. Pettit, 91 Ia. 609, 60 N. W. 192; where a promisor agreed to pay for property sold to a third party in goods to be furnished by him to the seller ; Lindsey v. Heaton, 27 Neb. 662, 43 N. W. 420; Chick v. Coal Co., 78 Mo. App. 234; Mankin v. Jones, 63 W. Va. 373, 60 S. E. 248, 15 L. R. A. (N. S.) 214.