So an agreement by a purchaser to pay part of the purchase-money to a creditor of the vendor is an agreement to pay his own debt ; Lee v. Newman, 55 Miss. 365 ; Morrison & Co. v. Hogue, 49 Ia. 574 ; Wilson v. Bevans, 58 Ill. 232 ; or to pay a debt due a promisee by a third person out of moneys owing by a promisor to such third person ; Estabrook v. Gebhart, 32 Ohio 415 ; Whitbeck v. Whit beck, 9 Cow. (N. Y.) 266, 18 Ani. Dec. 503 ; Wilson v. Bevans, 58 Ill. 233 ; or for the ap plication of a fund due a promisor by a third party; Justice v. Tallman, 86 Pa. 147. Such an agreement is an original promise.
Under the statute of frauds. At corn mon law, a contract of guaranty or surety ship could be made by parol; but by the statute of frauds, 29 Car. II. c. 3, "no ac tion shall be brought whereby to charge the defendant upon any special promise to an swer for the debt, default, or miscarriage of another person, . . . unless the agree ment upon which such action shall be brought, or some memorandum or note there of, shall be in writing and signed by the party to be charged therewith, or by some person thereunto lawfully authorized:" so that under the statute all contracts of guar anty and suretyship must be in writing and signed. The words debt and default In the statute refer to contracts ; 2 East 325; and debt includes only pre-existing liability ; Perley v. Spring, 12 Mass. 297; miscarriage refers to torts ; 2 B. & Aid. 613. Torts are accordingly within the statute, and may be guaranteed against ; 2 B. & Ald. 613; Turner v. Hubbell, 2 Day (Conn.) 457, 2 Am. Dec. 115; though this has been doubted in regard to future torts ; 1 Wils. 305. Per haps a guaranty against future torts might be open to objections on the ground of pub lic policy. But the unchallenged contracts of modern indemnity companies would seem to show that such an objection would not prevail.
A guaranty of indemnity to a surety is within the statute of frauds ; Waterman v. Resseter, 45 Ill. App. 155.
The doctrine that a future contingent lia bility on the part of the principal is not with in the statute ; 1 Salk. 27 ; Perley v. Spring, 12 Mass. 297; is not tenable; and it is clear, both by analogy and on authority, that such a liability may support a guaranty, although such cases must be confined within very nar row limits, and the mere fact of the contin gency is a very strong presumption that the promise is original ; Browne, Stat. Fr. § 196; Harrington v. Rich, 6 Vt. 668 ; Hart ley v. Varner, 88 Ill. 561.
Where the promise is made to the debtor, it is not within the statute ; Reed, Stat. Fr.
76 ; Price v. Combs, 12 N. J. L. 188 ; Mather v. Perry, 2 Den. (N. Y.) 162. "We are of opinion that the statute applies only to prom ises made to the person to whom another is answerable ;" 11 Ad. & E. 446 ; Alger v. Sco ville, 1 Gray (Mass.) 391. The word another in the statute must be understood as refer ring to a third person, and not to a debt due from either of the contracting parties ; Pre ble v. Baldwin, 6_ Cush. (Mass.) 552. False and deceitful representations of the credit or solvency of third persons are not within the statute; Browne, Stat. Fr. § 181; 4 Camp. 1.
The English rule required the considera tion to be expressed; 5 East 10. It could not be proved by parol ; 4 B. & Ald. 595. But by 19 & 20 Vict. no such promise shall be deemed invalid by reason only that the consideration does not appear in writing or by necessary inference from a written instru ment; 7 C. B. (N. S.) 361. The rule varies In different states, and in some states is set tled by statute. See Brandt, Sur. & Guar. § 82. In some states there are statutes sim ilar to the English statutes. In other states the consideration is required by statutes to be expressed. Of states where statutes are silent, some have accepted and some rejected the English construction of statutes of frauds in Wain v. Walters, 5 East 10, supra.
The courts lay hold of any language which implies a consideration ; Church v. Brown, 21 N. Y. 315. So where the guaranty and the matter guaranteed are one simultaneous transaction, both will be construed in connec tion, and the consideration expressed in the latter applied to the support of the former, If these are words of reference in the guar anty ; Simons v. Steele, 36 N. H. 73.
Formation of the obligation. In constru ing the language of the contract to decide whether it constitutes an original promise or a guaranty, it is difficult to lay down a gen eral rule: the circumstances of particular cases vary widely. See GUARANTY ; [1894] 1 Q. B. 288. "One test is if the promisor is totally unconnected with the transaction ex cept by means of his promise to pay the loss, the contract is a guaranty ; if he is to derive some benefit from it, his contract is an in demnity." Id. The word guaranty or surety may or may not indicate correctly the con tract, and the circumstances of the case may make an indorser liable as a guarantor or surety, without any words to indicate the ob ligation ; Ketchell v. Burns, 24 Wend. (N. Y.) 456.