Carleton v. Floyd, Rounds & Co.

Hammond, J. This case cannot be distinguished in principle from Ames v. Foster, 106 Mass. 400. The following language used by Morton, J. in that case is peculiarly applicable to this: “ The defendant’s promise was, in its primary and essential character, a promise to guarantee the debt of another. Its object was, to secure the payment of the old debt, which was not extinguished. The defendant’s liability was collateral and contingent, would exist as long as the original debt existed, and would be extinguished whenever the original debtors should pay that debt. It was not in any sense his debt; the original party remained liable; and there is an entire absence of any liability on the part of the defendant or his property, except such as arises from his express promise. Forth v. [206] Stanton, 1 Saund. (6th ed.) 211, note. When all these elements concur, we know of no case in this Commonwealth which, sanctions the doctrine that such promise loses its character as collateral, and becomes an original promise, because there is a consideration which is beneficial to the promisor.” In addition to the cases cited in the opinion in that case see also Brightman v. Hicks, 108 Mass. 246, and Fullam v. Adams, 37 Vt. 391. The case is clearly distinguishable from cases where the leading object and effect of the transaction is the purchase or acquisition by the promisor from the promisee of some property, as in Paul v. Wilbur, 189 Mass. 48, cited by the plaintiff, or the discharge of some lien upon the property of the promisor, the benefit of which discharge directly enures to the promisor, as in Castling v. Aubert, 2 East, 325. Such a transaction is in the nature of a purchase of property or of a property right. Exceptions overruled.