Mead, Mason & Co. v. Watson

[427] The opinion of the court was delivered by Powers, J. The referee says the plaintiffs understood “ that whatever Cameron ordered for said house of the plaintiffs the defendant would guarantee the payment of,” and the plaintiffs “would not have sold said articles to Cameron except for this understanding that the payment was guaranteed by the defendant.” Later on he says, “those articles were all charged to Cameron on plaintiffs’ books; and plaintiffs understood that they were to collect the same of said Cameron, if possible, and that the defendant was only liable to pay the same in case the plaintiffs were únable to make collections of Cameron.” The contract of the defendant, therefore, was collateral to the contract of Cameron. It is true that no debt existed against Cameron when the defendant’s promise was made. But the defendant only promised to be responsible for a future debt. His promise could only attach to the principal obligation of Cameron, when that obligation came into force. The defendant did not promise to pay primarily, but only in case the plaintiff failed to collect of Cameron. If the future primary liability of a principal is contemplated as the basis of the promise of a guarantor, such promise is within the Statute of Frauds, precisely as it would be if the liability existed when the promise was made. Brandt Sur. s. 61; Browne St. Fr. s. 162; Matson v. Wharam, 2 Term, 80. Judgment reversed, and judgment on the report for defendant.