Mills v. Brown

The authorities unite in declaring that whenever the main purpose of the person promising is not to answer for another, but to subserve some object of his own, the promise is not within the statute of frauds, although inform it may be a promise to pay another’s debt, and although incidentally the performance of it may have the effect of extinguishing the liability of another. And in note (m) to 2 Parsons on Cont. 302, it is said that a promise by A to indemnify B for guaranteeing a debt due from C to D, is not within the statute as being an undertaking to answer for the debt of C. Par. Cont, supra; Thomas v. Coolc, 8 B. & C., 728; Chapin v. Merrill, 4 Wend. 657; Holmes v. Knight, 10 N. H. 175; Lucas v. Chamberlain, 8 B. Monroe, 276.) In the last case it was expressly held that the incurring of liability at the request of another, is itself a suffi.eieni consideration to support a promise of indemnity. Much more is this so if the effect of the liability so incurred, is to operate directly beneficially to the promissor. And in the same case it is held (following, Dunn v. West, 5 B. Mon. 381) that a promise to indemnify one if he would become the surety of a third person, is an original promise and not .within the statute.

Following the rules above briefly stated, we may dispose of the case before us in a few words. The instructions of the court to the jury are not before us. We are not able therefore to say what view of the law was taken in the court below; much less can we say that an erroneous view was taken. The only question then remaining is, whether under the evidence submitted, and the rules above stated, the verdict was so far against the testimony, as that it should be set aside. And we are clear that it was. not. Upon the testimony, we think the verdict justified, either upon the *318ground that the liability incurred operated directly to the benefit of the promissor; or, that it was a promise to indemnify one for becoming the surety of another. And so regarding this case, without recapitulating the testimony, we conclude that it should be affirmed.

Judgment affirmed.