Saffold, J.
The relative situation of the parlies, as plaintiff'and defendant, was the same-in the Court below that it is in this Court. The declaration, was in assumpsit, and contained three ' counts, in substance as follows : That the plaintiff Travis shipped goods from New York to Mobile, in the ship Amelia, which goods wore damaged on the passage. Allen was the agent and consignee of the ship owners. Travis having determined to call the port wardens to hayo a. survey of the goods with a view to charge the si)ip owners, and being about todo so, Allen then told him if he would not thus proceed, but would (dean and brush up the goods and sell them to the best advantage at auction, ire, Allen would pay him the difference between the invoice price, and that for which they should sell. Travis did so pursuant to Allen';! request, and die loss amounted to one hundred and sixty eight dolían! thirty two cents; for which the action was brought.
Allen demurred generally fo the declaration; and the Court considering; the case within the statute of frauds, sustained the demurrer.
The judgment on demurrer, is the cause assigned for error.
Our statute of frauds, so far as regards this contest, is a literal transcript of the. English statute of 23 Charles II, as is also the statute of New York, and of most or all the other States of the Union. The decision--, therefore, which have, been correctly made, under either of the others, are good authority in reference to ours Its language is, “that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default cr miscarriage of another person, unless the agree[194] ment on which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully au-thorised.”, Here it is conceded the agreement was not in writing; and the question is, was the contract void ?
The classification of contracts involving this doctrine, as recognised by the Supreme Court of New York, and mány other tribunals of the highest respectability,' is,
1. Casés in which the guaranty or promise is collateral to the principal contract, but is made at the same time and becomes an essential ground of the credit given to the principal or direct debtor. In such there is not, nor need be, any other consideration than that moving between the creditor and original debtor.
2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. There must be .some further consideration shewn, having an immediate respect to such' liability, for-the consideration of the original debt will not attach to this subsequent promise.. And,
3. Cases where the promise to pay the debt of another, arises out of some new and original consideration of benefit or harm, moving' between the newly contracting parties—Leonard vs. Oredenburgh.a The two first classes of cases are within the statute of frauds,, but the last is not—S. C. and note g, appended, also 1 Saund. 211, note 2.
[195] A distinction has often prevailed (more uniformly in the early decisions,) between what were considered original, and those deemed collateral undertakings : and this distinction lias been recognised as the criterion by which to determine whether or not the contract was affected by the statute. That the former were not/and the latter were — -that if the person for whose debt, duty or miscarriage, the undertaking was made, was liable at all, so that the- entire responsibility did not rest, upon the other person, his promise was considered collateral, and if not reduced to writing, was void. If, however, no other person was liable for the same debt, duty or miscarriage, although the other person may have been liable for a distinct debt, &c., -which was the measure of the one in question; in such case the undertaking lias been considered an original one, and not within the .statute. Yet as has been well observed by an eminent jurist, it should be borne in-mind that although collateral promise has become the technical phrase, whereby the promise within the statute has generally been distinguished, such words do not. occur in the statute itself, and cannot therefore, be taken as a certain criterion, in deciding whether a promise for another is or is not within the meaning of this law. The promise, mentioned in the statute, is as well tlxa-t whereby a man undertakes to answer for the debt, as for the default of another.a The principle is also held by the same writer and others of equal merit, and from-which I have no disposition to dissent, that" the policy of this statute, like most others determining- the rights of propeat y, entitles it _ to a just and liberal construction. I would administer it according to what appears to have been its true spirit and intent — neither abridging nor extending its operation-.
[196] The case of Williams vs. Leper,a cited on the part of the plaintiff, is one justly supposed to afford the most satisfactory illustration of the branch of the statute involved in this case. There, Leper, in the capacity of broker, being about to sell the effects of an insolvent debtor for the benefit of his creditors, Williams, the landlord, came to-distrain the goods in the house — the broker promised the landlord to pay his debt if he would desist from distraining : and he did thereupon desist, the agreement being by paroi.
The Courtdecided that undertaking not to be within the statute of frauds. 'That the res gestee entitled the landlord to recover his rent of the broker. The reason employed was that Leper was a trustee for all the creditors, and was obliged to pay the landlord, who had the prior lien — that the goods were the fund out of which the debt was to be paid; and that it was not a collateral, but an original undertaking.
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Saffold, J.
The relative situation of the parlies, as plaintiff'and defendant, was the same-in the Court below that it is in this Court. The declaration, was in assumpsit, and contained three ' counts, in substance as follows : That the plaintiff Travis shipped goods from New York to Mobile, in the ship Amelia, which goods wore damaged on the passage. Allen was the agent and consignee of the ship owners. Travis having determined to call the port wardens to hayo a. survey of the goods with a view to charge the si)ip owners, and being about todo so, Allen then told him if he would not thus proceed, but would (dean and brush up the goods and sell them to the best advantage at auction, ire, Allen would pay him the difference between the invoice price, and that for which they should sell. Travis did so pursuant to Allen';! request, and die loss amounted to one hundred and sixty eight dolían! thirty two cents; for which the action was brought.
Allen demurred generally fo the declaration; and the Court considering; the case within the statute of frauds, sustained the demurrer.
The judgment on demurrer, is the cause assigned for error.
Our statute of frauds, so far as regards this contest, is a literal transcript of the. English statute of 23 Charles II, as is also the statute of New York, and of most or all the other States of the Union. The decision--, therefore, which have, been correctly made, under either of the others, are good authority in reference to ours Its language is, “that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default cr miscarriage of another person, unless the agree[194] ment on which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully au-thorised.”, Here it is conceded the agreement was not in writing; and the question is, was the contract void ?
The classification of contracts involving this doctrine, as recognised by the Supreme Court of New York, and mány other tribunals of the highest respectability,' is,
1. Casés in which the guaranty or promise is collateral to the principal contract, but is made at the same time and becomes an essential ground of the credit given to the principal or direct debtor. In such there is not, nor need be, any other consideration than that moving between the creditor and original debtor.
2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. There must be .some further consideration shewn, having an immediate respect to such' liability, for-the consideration of the original debt will not attach to this subsequent promise.. And,
3. Cases where the promise to pay the debt of another, arises out of some new and original consideration of benefit or harm, moving' between the newly contracting parties—Leonard vs. Oredenburgh.a The two first classes of cases are within the statute of frauds,, but the last is not—S. C. and note g, appended, also 1 Saund. 211, note 2.
[195] A distinction has often prevailed (more uniformly in the early decisions,) between what were considered original, and those deemed collateral undertakings : and this distinction lias been recognised as the criterion by which to determine whether or not the contract was affected by the statute. That the former were not/and the latter were — -that if the person for whose debt, duty or miscarriage, the undertaking was made, was liable at all, so that the- entire responsibility did not rest, upon the other person, his promise was considered collateral, and if not reduced to writing, was void. If, however, no other person was liable for the same debt, duty or miscarriage, although the other person may have been liable for a distinct debt, &c., -which was the measure of the one in question; in such case the undertaking lias been considered an original one, and not within the .statute. Yet as has been well observed by an eminent jurist, it should be borne in-mind that although collateral promise has become the technical phrase, whereby the promise within the statute has generally been distinguished, such words do not. occur in the statute itself, and cannot therefore, be taken as a certain criterion, in deciding whether a promise for another is or is not within the meaning of this law. The promise, mentioned in the statute, is as well tlxa-t whereby a man undertakes to answer for the debt, as for the default of another.a The principle is also held by the same writer and others of equal merit, and from-which I have no disposition to dissent, that" the policy of this statute, like most others determining- the rights of propeat y, entitles it _ to a just and liberal construction. I would administer it according to what appears to have been its true spirit and intent — neither abridging nor extending its operation-.
[196] The case of Williams vs. Leper,a cited on the part of the plaintiff, is one justly supposed to afford the most satisfactory illustration of the branch of the statute involved in this case. There, Leper, in the capacity of broker, being about to sell the effects of an insolvent debtor for the benefit of his creditors, Williams, the landlord, came to-distrain the goods in the house — the broker promised the landlord to pay his debt if he would desist from distraining : and he did thereupon desist, the agreement being by paroi.
The Courtdecided that undertaking not to be within the statute of frauds. 'That the res gestee entitled the landlord to recover his rent of the broker. The reason employed was that Leper was a trustee for all the creditors, and was obliged to pay the landlord, who had the prior lien — that the goods were the fund out of which the debt was to be paid; and that it was not a collateral, but an original undertaking.
Although it is true, as contended in behalf of the defendant, that there is some "dissimilarity between the features of that case and this, yet they are believed in principle to bear a material analogy to each other. Without the aid of the agreement, Leper was as free from responsibility for the rent, as was Allen for the damages sustained in the goods; they wore both in the exercise of an agency'which subjected them to a moral obligation to make the promises they did, and to comply with them, or otherwise to indemnify the plaintiffs — both were clothed with delegated discretion "to render justice to the adverse parties without litigation or delay, and (as I think may be fairly inferred in this case as well as the other) without any individual loss or responsibility, as the agency of each afforded the means' to perform his agree-[197] merit. Admitting that in this case the claim for the damages still exist against the ship owners, it was equally so in the case cited ; except, that there the certain or most probable means of obtaining satisfaction were lost in consequence of the agreement; and in this case from like cause, the safe and usual course of having the damages assessed by the wardens, and abandoning the goods to the ship owners, as intended, was defeated — a procedure, which, according to its ordinary results and probable tendency, would have secured to the plaintiff' quite as much as the defendant promised him, and without delay. In that case it is also true, that the landlord had a lien-on the effects for his rent, and some of the Judges considered the agreement in the nature -of a purchase of the effects from him' by the broker. In this case, the effect of the agreement was to induce the plaintiff to retain and sell for his own benefit, and at auction, (according to the facts stated) damaged goods which otherwise he would have had a right to abandon at the risk of ship-owners. It also imposed on him the expense of cleaning the goods, preparatory to the sale, and if it be admitted, that notwithstanding the undertaking, the plaintiff was entitled, on sufficient proof, to redress by suit against the owners of the vessel, it i's evident he was placed in a very unfavorable attitude -for doing so; for. though the survey of the wardens would not have' been of itself evidence of the damages, the testimony of the individu-also holding the office and who had acted under the solemnity of an oath, would have been much the most safe and satisfactory evidence-that the case admitted of. Nor can it be overlooked, that the transaction had a direct tendency, so far as to delude the [198] plaintiff, as to induce him to neglect the precaution of having the goods inspected by any persons before the sale, who would have been competent witnesses to prove the extent of the damages. It is also worthy of remark, that as a consequence of the sale at auction, there was probably a sacrifice in the true value of the goods. If so, and the plaintiff was prompted to it by an illegal contract, he could not expect indemnity for so much, in an action against the owners of the vessel; nor can it appear that they would not have been enabled to secure themselves out of the damaged goods by private sale, or otherwise, had they been abandoned to them according to the usual coxirse of commerce.
In an action against them, the plaintiff must have encountered this objection, as well as resistance, on the ground of the different agreement between himself and their agent; together with the difficulty arising from the delay in electing his remedy, and the, probably, imperfect testimony — all which were consequences of the undertaking, which is the foun- . (lation'of this action, and which from its nature and effects, would appear to constitute a new contract on a distinct consideration. The ship-owners were never chargeable with this particular'debt. Their responsibility was for the price of the goods, if abandoned : otherwise, for the true amount of the damages sustained, according to the remedy sought. Their liability, therefore, was but the inducement and measure of this debt; so that in any view of the case, this must be regarded as an original demand, as contemplated' in various decisions on the statute. It has been ruled, that if the original debtor is intended to be only relatively, and not absolutely discharg[199] ed, and the person, promising, substitutes himself as the debtor, in consideration of the release of the party indebted, quoad the original creditor, the right of suing for the orignal debt being only understood to be transferred, the transaction assumes a character which, in many cases, has been considered not within the statute.a It is admitted that no certain abstract rule in relation to this statute, has or can be laid down for the government of all other cases, but that much has of necessity been left to float on the facts and circumstances of the particular cases.b Yet it is believed the views I have advanced are in accordance with the most current rules of decision in the several Courts of the United States, as well as the great variety of cases reviewed in Roberts on Frauds.
Of the latter cases, it is deemed sufficient to notice but one other.c It was an action for the repairs of a carriage; it belonged to a Mr. Copey, and had been sent by the defendant to the plaintiffs to be repaired, the orders concerning it being given by the defendant. The bill for the repairs was made out in the name of Copey, who was known to the plaintiffs as the owner. The work being done, the defendant sent an order to pack up the carriage and send it on board a ship : the plaintiffs on this sent to know who was to pay for it: the defendant replied, he had sent it and would pay for it. The carriage was sent, and payment required of the defendant: he questioned the price, and refused to pay, hut said he had the money to pay it, without explaining whether it was his own or Copey’s. Upon these facts, Chief Justice Eldon, on the principles of the case of Williams vs. Leper, decided that the circumstances took the case out of the statute.
[200] This, it is true, was a trial at nisi pr ms, but it is recognised as sound law. It should be conceded, that some of the adjudged cases, of equal authority, maintain doctrines apparently in conflict with the principles of this decision; but from a comparison of the various decisions on the subject, it is believed the weight of authority fully sustains the conclusions to which I have arrived; and such is the unanimous opinion of the Court.
Judgment reversed, and the cause remanded for further proceedings.
Crenshaw, J. not sitting.