required by the common law, it does not appear to us to be necessary to review the authorities or discuss the principle. As to the second point urged in behalf of the defendant, the case presents greater difficulties.

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"The best understanding of the statute is derived from the language itself, viewed in the light of the authorities which seem to us to interpret its meaning as best to attain its object. That clause of the statute under which this case falls, reads: 'No action at law or in equity shall be brought upon a special promise of an executor or administrator to answer damages out of his own estate."

"The promise must be to answer damages out of his own estate.' This phraseology clearly implies an obligation, duty or liability on the part of the testator's estate for which the executor promises to pay damages out of his own estate.

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"Apply this rule to this case. Here, the main purpose of the promisor was not to answer damages (for the testator) out of his own estate, but was entirely to subserve some purpose of the defendant. The matter did not affect the estate. There exists, there

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The

fore, in this case no sufficient, actual, primary liability to which this promise could be collateral. plaintiff would be deprived of his legal right to contest the will, by a party who has reaped all the benefit of the transaction, and is shielded from responsibility by a technicality. We do not believe that this was the result contemplated by the statute.

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Question 130: (1) What promise did the executor make in the above case?

(2) What two defenses were made to the plaintiff's claim ? What is the answer to each of those defenses?

(3) State a case that would have come within this clause of the statute of frauds.

§ 118. (Contracts, Sec. 86.) Promises to answer for the debts, defaults or miscarriages of another are not enforceable unless proved by written evidence signed by the party sought to be charged.

Case 131. Jones v. Cooper, 1 Cowper's Reports, 227. Facts: An oral promise by defendant upon goods being delivered by plaintiff to Smith, in these words "I will pay you if Smith will not." Defense, the statute of frauds.

Point Involved: Whether the promise by a third person to a creditor to pay if the debtor does not must be in writing under the statute of frauds.

LORD MANSFIELD: "We are all of opinion upon the authority of the cases in the books, that the promise by the defendant in this case, to pay if Smith did not, is a collateral undertaking within the statute of frauds; and it is so clear it would be misspending time to go through the cases, or to say much about it."

Question 131: State the above case.

Case 132. Marr v. B. C. R. & N. Rwy. Co., 121 Iowa, 117.

Facts: Plaintiff, Marr, kept a boarding house in Cedar Rapids, and claims that in April, 1901, the Rwy. Co. made an oral contract with her that she should board at least 60 of the Company's employees for a period of six months, and they agreed to furnish her at least that number. That she agreed to take such boarders at the price named, but that the Company sent her only about 20 boarders, and that in June, they refused to send her any more boarders. The statute of frauds was pleaded. Point Involved: Whether the agreement by the Company with the plaintiff that the Company would pay her if she should board a number of employees to be furnished by the Company, was a promise to answer for the debt of another and therefore not enforceable unless in writing.

It is said in the first place that the oral contract sued upon was within the statute of frauds, there being no written or competent evidence to estab

lish the same.

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"But, the objection is not well taken. The agreement was with the company to board its employees, and plaintiff was to be paid by the company. There was no promise to answer for the debt, default or miscarriage of another.

Question 132: (1) State the facts, the question presented and the Court's decision in the above case.

(2) A, being a stranger in the City of Chicago and desiring to obtain board at a certain hotel, has his friend B come to the hotel and promise the manager that if A does not pay his hotel bill, he, B, will pay it. A leaves without paying his bill and the hotel sues B. B pleads that he is not bound on his promise because it was not in writing as required by the statute of frauds. Would you distinguish this case from the case above? Why?

(3) A desires to open up a retail store and for that purpose to procure goods from the M. Wholesale House. He goes to the M. House in company with his friend B, a merchant who already has a line of credit with the M. Wholesale House. B makes an oral statement which, in a suit afterwards brought by the Wholesale House against B (A becoming insolvent) is alleged by the House, to have been in these words: "Let A have goods up to $500 and charge it to my account," but which is alleged by A to have been: "Let A have goods up to $500 and if he doesn't pay, you may look to me." What substantial difference would the different statements make?

(Note: If one promises to pay for goods procured by another, it is evident he may thereby either incur a primary debt of his own, or a debt that is merely collateral to the debt of another. As an extreme illustration, A finds a tramp on the street and asks M to let him have a new suit of clothes and charge it to A. Clearly this is not a promise to answer for the debt of another, as M looked solely to A, as his debtor, no matter who else might have been benefited. So the party to whom the goods were delivered might be a responsible merchant, and

yet M might look entirely to the sponsor. In such a case the statute of frauds is no defense. But if any credit is extended to the other, then the promise is to answer for the debt of another and is not enforceable unless in writing and signed.)

Case 133. Lusk v. Throop, 189 Illinois Reports, 127.

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MR. JUSTICE MAGRUDER delivered the opinion of the court: 66# If the plaintiff's books show that the defendant was not originally indebted there, but that the goods were charged against the person receiving them, this fact if unexplained by other circumstances, would be strong evidence going to show that credit was given the person receiving the goods: is not conclusive evidence of such fact. might be rebutted by other evidence of a more convincing character and this is a question for the consideration of the jury to be determined from all the circumstances of the case. *

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but it It

Question 133: To what extent does the Court decide that the merchant's book entries may show to whom credit was given ?

Case 134. Warren (defendant) v. Smith (plaintiff), 24 Texas Reports, 484.

Facts: The evidence of Smith, the plaintiff, tended to prove that Royalls & Jackson owed Smith, the plaintiff, a sum of money and that these parties being present and also Warren, Warren orally agreed to pay Smith the amount owed him by Royalls and Jackson, and Smith, the plaintiff, agreed to this and thereupon released Royalls and Jackson of their debt. Defendant, Warren, claims the statute of frauds as a bar.

Point Involved: Whether a promise to assume another's debt under an arrangement with the creditor and the debtor by which the original debtor is released upon such assumption is within the statute of frauds.

BELL, J.: It is well settled that the clause of the statute of frauds which relates to promises to

answer for the debt, default or miscarriage of another person, has reference to promises which are distinctively collateral to the undertaking of the party originally li able. If the promise to answer for the debt of another is collateral only, and if the original liability continues. to subsist, the collateral promise is within the statute; but if, by the new promise, the original liability is extinguished, then the new promise is not within the statute, which need not be in writing.

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Question 134: What were the facts, the question presented and the Court's decision in the above case?

Case 135. Spadone v. Reed and Thompson, 7 Bush's Reports (Ky.) 455.

Facts: Spadone sued Reed as his original debtor and Thompson as beneficiary of an alleged agreement whereby Thompson agreed with Reed to pay Reed's debt to Spadone.

Point Involved: Whether a promise to a debtor to pay his debt to the creditor, is a promise within the statute of frauds.

JUDGE LINDSAY:

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The statute of frauds can

The

not be made available as a defense to this action. promise of Thompson to pay the debt of Reed was not made to Reed's creditor, but directly to Reed himself and therefore can be enforced though not in writing."

Question 135: What were the facts, the question presented and the Court's decision in the above case?

§ 119. (Contracts, Sec. 87.) Promises in consideration of marriage are not enforceable unless proved by written evidence signed by the party sought to be charged.

Case 136. Austin v. Kuehn, 211 Illinois, 113.

Statement of Facts: C. M. A. files her claim against the estate of J. E. Baker, alleging a promise by Baker to pay her $7,500 when she should marry a certain per