paid,' this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant." The sale in the last case is to the undertaker only, though the delivery be to another by his appointment. (q) But in order to determine whether the party giving the undertaking or making the promise of payment is primarily or collaterally liable, the surrounding circumstances and the situation of the parties must be regarded, as well as the exact expressions used. (r) If the plaintiff has made the party to whom the goods have been furnished his debtor, as previously mentioned, if he describes him as such in his books or in letters, he can only treat the other as a surety. (s) "I always," observes Holt, C. J., "require the tradesman to produce his books to see to whom credit has been given."

Mr. Simpson introduced his friend Penton to an upholsterer and asked the latter, in Penton's presence, if he had any objection to supply Penton with some furniture, and, that if he would, he (Simpson) would be answerable for it; the upholsterer asked Simpson, what length of credit he (Simpson) required, and Simpson said that he would see the furniture paid for, at the end of six months, and that he thought 407. or 50l. worth would be wanted. The upholsterer took the order and forwarded 467. worth of goods to Penton, and at the end of six months he sent in his account to Simpson. The account in the upholsterer's cash book and ledger was headed, "Mr. Penton, per Mr. Simpson," and it was contended that as the goods were ordered by Penton, that Simpson was only collaterally liable as a surety, after default in payment by Penton, but the jury found that the credit was given to Simpson, and that he was the real purchaser ; and it was held, that they were perfectly justified in so doing.(t)

"I think," observes Bayley, B., "that the expression, I'll be answerable,' or 'I'll see you paid,' are equivocal expressions, and then we ought to look at the surrounding circumstances to see what the contract really was. In the case of Oldham v. Allen, the Court of King's Bench said that a contract might be collateral or not according to circumstances, there the defendant had sent the plaintiff, who was a farrier, to attend some horses, and said to him, 'I will see you paid;' the farrier knew the parties who were owners of some of the horses, and made them debtors in his books, but debited the defendant for the others whose owners he did not know, the court held, that the promise was original in respect of

250, s. c.

(1) Birkmyr v Darnell, 1 Salk. 27; 6 Mod.
Watkins v. Perkins, Raym. 224.
(r) Keate v. Temple, 1 B. & P. 158.
(s) Austen v. Baker, 12 Mod. 250. Darnell

v. Tratt, 2 C. & P. 82. Anderson v. Hayman, 1 H. Bl. 121. Rains v. Storry, 3 C. & P. 130. Mines v. Sculthorpe, 2 Campb. 215.

(t) Simpson v. Penton, 2 C. & M. 430.

those owners whose names he did not know; but in respect of the others that it was collateral." (u)

One Brunton, the lessee of a theatre, applied to the plaintiff, to fit up the theatre with a gas apparatus, and the plaintiff, after the work was commenced, becoming doubtful of Brunton's ability to pay the expense thereof, refused to go on with it until he had the guarantee of some responsible person, whereupon the defendant gave to the plaintiff the following written undertaking, "Royal West London Theatre, Sept. 9th, 1822. I hereby undertake to Mr. Thomas Edge, (the plaintiff) to see him paid for the gas apparatus he has put up and furnished for Mr. John Brunton, according to the work to be performed in a scientific manner, as shall be thought necessary and approved by Mr. Evans the superintendant of the gas works in Peter Street." And the plaintiff then proceeded with the work and completed it, and brought an action against the defendant, and obtained a verdict for the price of the apparatus; and it was held, that the defendant might be made chargeable upon his undertaking as the primary and sole debtor. (x) So, where the defendant had given a written undertaking for the payment of gas furnished to a theatre in the following terms, "I, the undersigned, do hereby engage to pay the directors of the Manchester gas works, for all the gas which may be consumed in the minor theatre, and by the lamps outside the theatre, during the time that it is occupied by my brother-in-law, Mr. Neville;" it was held, that the defendant might be made liable as the primary and sole debtor in an action for goods sold and delivered. (y)

A carpenter, having undertaken to complete the carpenter's work in a house of the defendant's, and to find all the materials necessary for the purpose, proved to be unable to find funds for the purchase of a sufficient quantity of timber, whereupon the carpenter applied to the plaintiff, who was a timber-merchant, for a supply of timber upon credit, and the plaintiff furnished the timber upon the faith of the following written undertaking, signed by the defendant: "I, Richard Hatfield, (the defendant,) do agree to pay to Mr. J. Moore, (the plaintiff,) 507. for timber to the house in Annett's Crescent, out of the money that I have to pay to William West, (the carpenter,) provided West's work is completed." And it was held, that this was not a collateral undertaking to pay the debt of West, but an original independent contract and promise, not within either the words or the spirit of the statute of frauds. (2)

(u) Bayley, B., ib. 433, 434. Langdale v.

Parry, 2 D. & R. 337, 340.

(x) Edge v. Frost, 4 D. & R. 245.

(y) Wood v. Benson, 2 C. & J. 94.

() Dixon v. Hatfield, 10 Moore, 42; 2 Bing. 439, s. c.

So, where the plaintiff, in his declaration, alleged that one Joshua Hill was employed by J. L. Hesse, to do work for him on certain houses, and the defendant was employed by Hesse as surveyor over Hill in respect of the said work, and that the defendant, in consideration that the plaintiff, at the request of the defendant, would provide Hill with materials for the work, promised the plaintiff to pay him a reasonable sum for such materials, out of such monies received by him, as should become due to Hill, in respect of the said work, if Hill should give him an order for that purpose; and then averred that Hill gave the order, and afterwards required certain materials, and that the plaintiff provided and delivered to Hill materials of the value of 1,0007., and that 1,5007. became due to Hill for the work, and had been received by the defendants, and that the plaintiff thereupon requested the defendants to pay him for the materials out of such monies so due to Hill, and so received by the defendant, which the defendant had refused to do, it was held, that this was not a promise to answer for the debt on default of another, within the meaning of the statute of frauds. (a)

If the defendant, upon the face of a written undertaking, makes himself liable only as a surety in default of payment by the party to whom the goods are actually furnished, the plaintiff will, of course, be nonsuited, if he sues him upon an original contract as the actual debtor.

Whether an undertaking for the payment of goods furnished to a third party is the contract simply of a surety, coming in aid only of a principal debtor, and who is to be liable only secondarily, and after the default of such principal, or whether he is himself primarily liable as the actual debtor, no contract having been entered into with the other party, and no liability whatever attaching to him, is sometimes a question of intention of the greatest nicety.

If goods are furnished to an infant at the request of the defendant, the defendant's undertaking or promise to pay for them, is not a collateral promise to answer for the debt of another, inasmuch as the infant is not liable to pay for them, and cannot be indebted by reason of his minority. (b)

And if the original debt be discharged and extinguished by the substi tution in lieu thereof of a new contract to pay the amount of that debt, such new contract is not a collateral promise to answer for the debt or default of another. (c)

(a) Andrews v. Smith, 2 C. M. & R. 627. Sweeting v. Asplin, 7 M. & W. 173.

(b) Harris v. Huntbach, 1 Bur. 373.

Dun

combe v. Tickridge, Aleyn, 94; 1 Wms. Saund. 211, d.

(c) See post. ch. 11, sec. 2, "Change of inter

A debtor being taken in execution by his creditor, the plaintiff, on a writ of ca sa, the defendant, in consideration that the plaintiff, at the request of the defendant, would discharge his debtor out of custody, promised the plaintiff that he the defendant would pay to the plaintiff the costs and damages, for which such debtor had been taken in execution; and it was held, that this was a promise not within the statute, because the debt was extinguished by the discharge of the debtor who was no longer liable. (d)

So, where the plaintiff had issued execution against one Lloyd, and afterwards, with the assent of all the parties interested, Lloyd conveyed all his property to the defendant, he undertaking to satisfy Lloyd's creditors; and, thereupon, it was agreed between the plaintiff Lloyd and the defendant, that the plaintiff should relinquish execution against Lloyd, (which he did,) and should look to the defendant as his debtor instead of Lloyd; it was held, that the defendant's undertaking to pay the plaintiff, was not a promise to answer for the debt of a third person, within the statute; for that Lloyd was discharged from the debt, and would have had a good answer by plea, if the plaintiff had sued him, or by auditá querelâ, if the plaintiff had issued execution. (e)

And where a purchaser of goods, being unable to pay for them, transferred and delivered them to the defendant, and the latter promised the vendor to pay for them; it was held, that this was a substitution of a new contract of sale, and a new purchaser in lieu of the original contract of sale, that the original purchaser was discharged from all liability in respect of the goods, and his debt being extinguished, the promise was not a promise to be answerable for the debt of another. (ƒ)

And a contract or promise, although made concerning the debt or default of a third party, may yet be an original contract not within the

statute.

If the plaintiff, for example, has a lien upon the goods and chattels of his debtor in his possession, or if he holds securities for the payment of his debt, and is induced either to give up his lien upon the goods or to part with his securities upon the faith of a promise, made by the defendant, to pay the amount of the plaintiff's claim thereon, the promise so made is not within the mischief intended to be provided against by the statute

est by novation and substitution." Hodgson v. Anderson, 5 D. & R. 746, 747; 3 B. & C. 855, 866, s. c. Lacy v. M'Neile, 4 D. & R. 7. Tay lor v. Hilary, 1 C. M. & R. 743; 3 Dowl. 461,

8. C.

(d) Goodman v. Chase, 1 B. & Ald. 297.

Butcher v. Steuart, 11 M. & W. 857. 12 Law,
J., rep. N. S. 391, s. c. Lane v. Burghart, 1
Ad. & E. N. S. 937.

(e) Bird v. Gammon, 5 Sc. 213; 3 Bing. N. C. 883, s. c.

(f) Browning v. Stallard, 5 Taunt. 450.

of frauds, although the amount promised to be paid, as the consideration or inducement for the abandonment of the lien or the surrender of the securities, may be the subsisting debt of a third party, due to the plaintiff, and the performance of the promise may have the effect of discharging that debt. (g)

Thus, where the plaintiff, in his declaration, alleged that "the defendant, in consideration that the plaintiff, at the request of the defendant, would relinquish the possession of certain goods, which had before then been granted and sold to him by Abbott, by a bill of sale, made in consideration of 1227. 19s. 6d., due from Abbott to the plaintiff, and which goods. he was about to sell in satisfaction of his debt, the defendant undertook to pay him 1777. 19s. 6d. in April then next; it was held, that this was not a promise to pay the debt of another.

'What is this," observes Mansfield, C. J., " but the case of a man, who, having the absolute uncontrolled power of selling goods, refrains, upon the request of another. This is not a promise to pay the debt of another within the meaning of the act. (h)

So, where the plaintiff, holding securities for the payment of a debt due to him, had parted with those securities, and given up his lien upon them, upon the faith of a promise by the defendant, to pay and satisfy the amount of the plaintiff's claim upon them; it was held, that this promise was not a promise to be answerable for the debt of another within the true intent and meaning, and the spirit of the provisions, of the statute of frauds, but an original independent contract, amounting to a purchase of the securities, or of the defendant's interest therein. (¿)

And, where the plaintiff had distrained upon his tenant for rent in arrear, and afterwards delivered up the goods and chattels to the defendants, for the use of the tenant upon the faith of an undertaking signed by the defendants in the following terms: "We, the undersigned, hereby agree and undertake to pay to Thomas Edwards, (the plaintiff,) all such rent as shall appear to be legally due to him from Edward Kelly, the tenant of part of the Barton of Rame and tenement Bastard Combe, up to the 25th day of Dec. 1815;" it was held, that the defendants were liable upon their undertaking, and that it was not within the mischief intended to be provided against by the statute. (k) The landlord, having dis