This action was brought for the recovery of a bill of lumber, furnished by the plaintiffs, and used in the construction of a house owned by the defendant. The house was built by George F. Gibson, under a written contract with Dow, the defendant. By the terms *443of the contract, Gibson was to furnish the materials. They were charged to him in the books of the plaintiffs. The claim was presented to him ; and, after his failure to pay it, notice was given to Dow, as the owner of the house, of the amount of the claim against Gibson under the provisions of the mechanics’ lien law. It was in evidence that the defendant, before the delivery of the lumber, had called at the plaintiffs’ lumber yard, inquired the price of lumber, given directions for its delivery, said that Gibson had the contract for the building; but it made no difference whether the lumber was charged to Gibson or to himself, “as he was going to see to buying the lumber, and paying for it himself.”
The court charged the jury, among other things, as follows: “The question then is, was the lumber delivered on the account and credit of Dow, or was it delivered on the credit of Gibson, the builder? If on the credit of Dow, in consequence of any promise, express or implied, on his part, he is liable, if they made him the original debtor. If on the credit of Gibson, and he was made the original debtor, then Gibson only is liable. In that case the liability of Dow would be only collateral, and cannot be enforced, unless it were in writing. If Dow were there merely to see where the lumber could be bought to the best advantage, either to favor Gibson or to patronize the plaintiffs, whose neighbor he was to become; if he made no promise to pay, he is not liable. But if he ordered the lumber, and promised to pay for it, and the plaintiff’s accepted the promise, and on the faith of it delivered the lumber, he is liable. ‘ Let him have goods, and I will pay for them,’ is an original agreement. ‘ Let him have goods, and I will be security for them,’ or, ‘ I will see you paid,’ is collateral, and must be in writing.
“Again, under that contract, and in pursuance of a section in the mechanics’ lien law, the plaintiffs, on the 14th of March, 1857, after the delivery of the last items of the lumber, gave notice of their claim against Gibson for the precise amount of the bill now in question, for goods, *444wares, and merchandise sold and delivered to Gibson, to be used by him in'the erection of the seminary. If this relates to the lumber in question, it is evidence from which you may infer that the articles were sold and delivered to Gibson ; that they were delivered on his credit; that he was made the debtor, and that the offer of Dow to páy for them was not accepted. It is evidence of an admission on the part of the plaintiffs, (hat they did not look to the defendant on an original contract, but that they would rely on the obligation raised under the statute.”
To this charge the plaintiffs in error, who were the plaintiffs below, except, and rely upon these exceptions as grounds of error. The real questions before the jury were, whether the lumber in question was furnished by the plaintiffs upon the credit of the defendant or of Gibson, the contractor ; and if upon the credit of the contractor, then whether there was any contract or promise by the defendant which was valid, and could render him liable for the payment of the debt. The well-settled rules of law touching the application of the statute of frauds and perjuries to promises to pay the debts of another, are fairly stated in the charge of the court. Whether any promise was made by the defendant, and whether made by him as principal or as mere security for the debt of the contractor, were properly submitted for the consideration of the jury.
The jury have found, in accordance with what appears to be the clear weight of the testimony, that the goods were sold and delivered upon the credit of Gibson, the contractor, and not of the defendant.
It is insisted that the judge should have charged the jury that, though the lumber was delivered and credited to Gibson, yet if the defendant, at or before the sale and delivery of the lumber, also promised to pay for it, it was an original, not a collateral promise on his part—a promise to answer for his own debt, and not for the debt of another. The question, to which of the two credit was originally given, was fairly left to the jury, upon all the *445evidence in the case. The alleged error is, that the judge did not go further, and tell the jury that both might be original debtors, each promising, severally for himself, to pay the debt.
If A purchase goods to be delivered to B, or promise to pay for goods that may be purchased and received by B, the promise of A is clearly an original contract, an engagement to pay his own debt, and not the debt of B, So if A and B jointly promise to pay for goods delivered to B, A and B are joint original ‘debtors : it is a joint promise to pay the indebtedness of A and B, and not a promise by A to pay the debt of B. Such a promise is not within the statute.
And if A and B should severally promise to pay for goods delivered to B, if the question were now to be settled, it might be argued that both were equally original independent promises. How, it; might be asked, can A’s promise be a promise to pay the debt of B, when, at the time of the contract, B owed no debt; both promises being simultaneous and parts of one and the same transaction. “Whether,” says Mr. Justice Story, “by the true intent of the statute, it was to extend to cases where the collateral promise, so called, was a part of the original agreement, and founded on the samo consideration moving at the same time between the parties, or whether it was confined, to cases where there was already a subsisting debt and demand, and the promise was merely founded upon a subsequent and distinct, undertaking, might, if the point were entirely new, deserve very grave deliberation.” “ But,” he adds, “ it has been closed within very narrow, limits by the course of the authorities, and seems scarcely open for general examination.” D'Wolf v. Rabaud, 1 Peters 499.
The course of adjudication seems 'clearly to- have settled the point, that whore the party to whom the goods are delivered become personally liable for the payment of the debt, the engagement of any other person, though *446made at the same time and upon the same consideration, is a promise to pay the debt of a third person, within the meaning of the statute. The latter engagement is regarded not only as subsidiary, but as collateral. And the test question of the promise, being within the statute, is, whether it is a promise to pay the debt of another, for which that other remains liable. Birkmyr v. Darnell, Salk. 27; Forth v. Stanton, 1 Wm. Saunders 211, note 2; Roberts on Frauds 209; Chitty on Con. 447, note 2. The authorities are not now to be shaken, and the genera! line now taken is, that if the person for whose use the' goods are furnished be liable at all, any other promise by a third person to pay that debt must be in writing, otherwise it is void by the statute of frauds. Per Buller, J., in Matson v. Wharam, 2 D. & E. 80.
But if there were room for doubt upon this point, there is no error in the charge of the court, because there is no pretence in the evidence that there were distinct engagements by the defendant and by Gibson to pay for the lumber. The defendant said it was no matter to which of the two it was charged; and the question before the jury was, upon whose credit was the lumber furnished. If the credit was given to Gibson, there was no promise by the defendant to pay for that debt.
It is further insisted that the court erred in not instructing the jury that the case was not within the statute of frauds, because the consideration of the defendant’s promise was a matter of interest to himself. As has been said, the real question in the case was, whether there was any promise by the defendant to pay for the lumber. If the credit was not given to him, but to Gibson, there is no evidence of a promise by the defendant to pay for it. The charge, therefore, upon this point, if lawful, would have been irrevelant.' Nor is it preceived that the charge would have been lawful if there had been evidence of an express promise by the defendant to pay at the .time of contracting the debt. The rule is, that if the consideration *447of the promise spring out of a new transaction, or move to I he party promising upon some fresh and substantive ground of a personal concern to himself, the statute of frauds does not attach upon the promise. Roberts on Frauds 232; Gold v. Phillips, 10 Johns. R. 412; Myers v. Morse, 15 J. R. 425; Stocking v. Sage, 1 Conn. R. 519; Colt v. Root, 17 Mass. R. 229; Nelson v. Boynton, 3 Metc. 396; 1 Parsons on Con. 498; 2 Parsons on Con. 305.
If, then, the plaintiffs liad refused to credit Gihson, or if, after contracting with him, they had refused to deliver the lumber, and the defendant, in order to secure the erecting of his house, had thereupon promised to pay in case the lumber were delivered, and the lumber had thereupon been delivered, there would have been a case for the application of the principle; there would have been a new original contract on the part of the defendant to pay the debt, founded on a consideration personal to himself. But upon the evidence in this case there existed no such consideration for the promise of the defendant.
It is urged, as a further ground of error, that the court should have charged the jury that the case was out of the statute, because the undertaking of the defendant was to pay the debt out of the goods of Gibson in his hands. This instruction would have been proper in a case where it was applicable. Andrews v. Smith, 2 Cr., Mees. & Ros. 627.
But there was no evidence of any contract on the part of the defendant to pay the debts out of the goods of Gibson in his hands. And if there had been such evidence there could have been no recovery, except in an action founded on the special contract. Sweeting v. Asplin, 7 Mees. & Weis. 164; Sherman v. Stanton, 1 Tyler 350.
There is a further answer to each of the exceptions taken to the charge of the court, admitting that in each particular the charge desired by the defendant would have been relevant and proper. The matters complained of are mere omissions, and the judge was not requested, upon the trial, *448to charge as it is now insisted he ought to have done. The rule is well settled that such omission constitutes no ground of error. If either party deems any point presented by the evidence to be omitted in -the charge, it is competent for such party to require an opinion from the court upon that point. If he does not, it is a waiver of it. Pennock v. Sellers, 2 Pet. 15.
There is no error in that part of the charge that instructed the jury that a notice from ' the plaintiffs to the defendant, under the mechanics’ lien law, that the amount of the bill for lumber was due to them from Gibson, was evidence from which the jury might infer that credit for the articles was originally given to Gibspn, as the purchaser. Neither the entry in the plaintiffs’ books against Gibson, nor the notice to the defendant that he was debtor for the amount, was conclusive evidence that the sale was made to Gibson, nor did the court so instruct the jury. But, until explained or contradicted, either fact was evidence from which the jury might find that the original credit was given not to the defendants, but to Gibson.
The judgment should be affirmed.
Whelpley, J.The plaintiff insists that the true test by which to determine whether the defendant was liable, was not stated to the jury; that it did not follow that Dow was not liable because Gibson was; that both might be liable, either jointly or severally, upon an original joint or several .undertaking; that if the defendant said, I wish you to furnish the lumber for the building, I will pay for it, and they did' furnish it, relying on this order, .that Dow is liable, although at the time it was furnished they charged it to Gibson, also relying on his promise to pay for. it.
The judge, at the trial, left it to the jury to determine, from the evidence., which was the original and principal debtor, • Dow or Gibson.
The object of the 34th section of the statute of frauds *449was to render incapable of enforcement contracts actionable had not that statute been passed. Much of the contrariety of decision upon this section seems to have been occasioned by losing sight of this primary consideration.
A promise, upon sufficient consideration, to pay the debt of anoilier, whether contracted previously or at the time of the promise, is good at common law; but here the statute intervenes, and declares that no such promise shall support, an action, unless it, or some memorandum or note thereof, is in writing, signed by the party to be charged thereby, or some other person thereunto by him lawfully authorized.
' It was the grand design of the statute to protect parties from liability for the debts, defaults, and miscarriages of others, sought to be imposed upon them by the testimony of perjured or mistaken witnesses swearing to promises never made; to fix responsible parties with the liabilities of the irresponsible; to prevent loose expressions, casually dropped, never intended to constitute a contract, being tortured into a solemn contract to-charge the pretended promisor; to put it out of the power of perjury or mistake to charge a party for debts not his own, by requiring, in all such cases, an acknowledgment in writing.
So salutary has been the operation of (his statute, that its principle and rule has been applied by the British parliament to promises to pay debts barred by the statute of limitations. The principle of the enactment is, that the relation of principal and surety shall not be created by parol without writing.
What do the words “debt of another” mean? When, and in what way, does a debt attach itself to one, so as to become, as to all others, the debt of another ? These are questions that require solution in construing the statute, and they have been the themes of elaborate legal casuistry ever since the enactment of the statute.
It is much to be regretted that, in applying to the provisions of this statute, courts, iu attempting to adjust them *450to the equities of particular cases, have adopted distinctions so refined as in many cases to amount to a virtual repeal of the act. It is far better, when a case of apparent hardship arises, to save the law at the expense of the case, than the case at the expense of the law. Hard cases make harder law. In attempting to reach the justice of one case over a settled rule, the rights of thousands are rendered uncertain and jeopardized.
That the operation of the statute is not confined to antecedent debts, has long been settled. To use the language of Judge Story, in D’Wolf v. Rabaud, 1 Pet. 499, “ Whether, by the true intent of the statute, it was to extend to cases where the collateral promise, so called, wa's a part of the original agreement, and founded on the same consideration moving at the same time between the parties, or whether it was confined to cases where there was already a subsisting debt and demand, -and the promise was merely founded upon a subsequent and distinct undertaking, might, if the point were entirely new, deserve very grave deliberation. But it has been closed within very narrow limits by the course of the authorities, and seems scarcely open for general examination, at least in those states where the English authorities have been fully recognized and adopted in practice. Anderson v. Hayman, 1 H. Black. 120; Matson v. Wharam, 2 T. Rep. 80 ; Jones v. Cooper, Cowp. 227; Smith’s Merc. Law 455; Forth v. Stanton, 1 Wm. Saunders 211, note 2; Cahill v. Bigelow, 18 Pick. 371; Carville v. Crane, 5 Hill 485; 1 Smith L. C. 213, notes to Birkmyr v. Darnell, and cases there cited, are abundant confirmation of this doctrine. If the statute applies to cases of sales made at the time of making the promise, and be not confined to cases of antecedent/ indebtedness, it would seem to be exceedingly clear that the question, whether the promise was within the statute or not, must be determined bv settling whether the sale of the goods was made and the credit given to both jointly, or to one of them, and if so, *451to which of them; if to one, he must be the principal debtor, and the other mere surety, and his undertaking collateral.
How can two persons be liable, as original principal debtors, upon a parol contract, not in writing,for the entirety of the same debt? To state the proposition seems its best refutation. If the liability of the one is complete by itselfj and not dependent upon or collateral to the other, then payment by one would not be payment for both, and the fortunate possessor of such an undertaking might enforce double satisfaction for the same debt. If the undertakings be not independent, one must be collateral to the other, and that which is thus collateral must be subject to the operation of the statute.
Neither the case of D’Wolf v. Rabaud, 1 Pet. 476, nor Townsley v. Sumral, 2 Pet. 170, supports the doctrine that both the person to whom the goods are furnished, and the person at whose request they are furnished, may be liable on distinct independent contracts as principal debtors, so that the promise of the one is not collateral to that of the other, and both be principal debtors.
The criticism of Cowen, Justice, in Carville v. Crane, 5 Hill’s Rep. 485, upon the dictum of Story, in D’Wolf v. Rabaud, is just—that the learned judge admitted he was not following the construction of the statute, but suggesting what might be the better construction were the question res nova, viz., that where the engagement of the surety and principal are simultaneous, and on the same consideration, the case is not within the statute. In that case the undertaking of the surety was in writing, and the only question was, whether the consideration must appear in the writing, or might be shown by parol evidence.
Townsley v. Sumral states this doctrine as the foundation of the decision: “ If a person undertake, in consideration that another will purchase a bill already drawn, or thereafter to be drawn, and as an inducement to the purchaser to accept it, and the bill is drawn and purchased *452upon tile credit of that promise for a sufficient consideration, such promise to accept is binding upon the party. It is an original premise to the purchaser, not merely a promise for the debt of another, and having a sufficient consideration is binding. Judge Story likens the case, and very properly, to a payment of money by one to another on request; that a promise to repay would be an original promise. The acceptance in that case would make the acceptor the principal debtor to the holder of the bill; and if paid at maturity, the drawer would be discharged incidentally.
That contract was for this consixleration : “ I promise that, if you will pay to A $500, and he will draw a bill on me for that sum, I will accept and pay it.” Perhaps the case may be explained consistently with a sound construction of the statute upon the rule, which seems to rest upon sound reasoning, that where the payment of the debt óf a third person is a mere incidental result of the payment of the promisor’s own obligation, the case is not within the statute. A man shall not escape payment of his own debt, because, In paying it, he incidentally pays that of ' another.
The engagement of the principal debtor is always binding. The collateral promise, that is, the promise to pay the debt of another, is what the law requires to be in writing.
Where the promise is to pay for goods supplied to a third parly, if the third' party be liable at all, the promise is within the statute; but if the articles are supplied entirely on the credit of the promisor, so that the third party is not liable at all, then the promise is not within the statute. 1 Bac. Ab., title “Agreement,” C 2, (Bouv. ed.) Shaw, Ch. Just., in Cahill v. Bigelow 18 Pick. 371, lays down the rule correctly. That (he test is this: where the promise .is made before the credit is given, to decide whether one promising is an original debtor or a guarantor, namely, whether credit was given to the person re*453ceiving the goods. If it was, then such promisor is a guarantor only, undertaking to pay another’s debt. If no credit was given to the person receiving the goods, then the promisor is himself debtor for goods sold to "him, and delivered to a third person by his order; his promise is not to pay the debt of another. He cites Matson v. Wharam, Jones v. Cooper, and Anderson v. Hayman, and distinctly overrules Perley v. Spring, a ease previously decided by the Supreme Court of Massachusetts, reported in 12 Mass. Rep. 297.
To the same effect are Forth v. Stanton, 1 Wm. Saunders 211, note 2; Leonard v. Vredenberg, 8 Johns. 37, decided by Kent, Ch. Just.; Tileston v. Nettleton, 6 Pick. 511; Chitty on Con. 402, 405; Robb on Frauds 209; Keate v. Temple, 1 Bos. & Pul. 158; Brady v. Sackrider, 1 Sand. Sup. Ct. Rep. 514; Conolly v. Kettlewell, 1 Gill. 260.
The case of D’Wolf v. Rabaud and Townsley v. Sumral, pressed by defendant’s counsel as ruling this case, arc in conflict with the whole current of authorities, so far as they support the doctrine contended for, that the liability of the person tor whose use the goods were furnished does not render the engagement of a third party collateral, and cannot be supported. We have already seen that these cases are, perhaps, susceptible of being supported consistently with the doctrine of the leading case upon this subject, Matson v. Wharam. I have found it impossible to notice all the cases upon this subject without being unreasonably prolix, but enough have been cited to show the decided weight of authority upon this point.
In this case, the action was upon the several contract of Dow. It does not appear that the idea of a joint contract was started on the trial, or in any way set up before the court or jury. The attention of the judge was not drawn to it by any request to charge that Dow and Gibson might be held upon a joint contract; indeed there was no evidence in the case of such a contract, and a request to so charge would have been of no avail. It is not *454the duty of the court “to state to a, jury the law upon a point not presented by the case, although requested so to do. The evidence tended to show that if Dow was hable, his promise was several, not joint. The statute was intended to control the creditor’s right of action, to determine to whom resort can be had for payment of his debt; whether there is a contract which can be enforced by action.
To settle the rights of the promisors inter sese—to ascertain, as between them, who is to pay the debt ultimately —is no part of the object of the act. It by no means follows that he who, by the arrangement between the promisors, ultimately may be bound to pay the debt is, as to the promisee, the principal debtor; that does not concern him.
The statute operates upon the contract, as shaped by the parties. In all these cases the question is, what is the meaning of the phrase “debt of another” to the promisee; which is the debtor, and which the guarantor, not inter sese, but to the creditor.
If A be bound to deliver to C twenty shares of stock by a certain day, and C promises B, on sufficient consideration, that A shall deliver the stock to B, that is not a promise within the statute—the promise is original, not collateral. A is not bound by any promise made by him to B, because none has been made; therefore C’s promise is not collateral. B has no action against A, but has against C. To make one promisevcollateral to the other, both must be to the same promisee, so as to give, if both were valid, a double remedy. Eastwood v. Kenyon, 11 Ad. & El. 438; Hargreaves v. Parsons, 13 M. & W. 561; Johnson v. Gilbert, 4 Hill 178.
These cases show that, in some degree, the question, whether the statute operates, depends upon the form of the engagements. The statute applies only to promises made to the person to whom another is already, or is to become answerable. It must be a promise to be answer*455able for a debt or default in some duty by that other person toward the promisee.
To look the question in the face. The party to whom and for whose use the goods are furnished, is clearly liable to the vendor, either upon an express or implied promise. Now if, before the delivery, another person said to the vendor— let him have the goods, and I will pay for them, and the vendor, in partial reliance upon that promise, hut still relying on the credit of the party who had them, delivered the goods, the latter promise would he good at common law— so would the former ; both would be good, did not the statute intervene.
Here are distinct promises, upon both of which, at common law, an action would lie. The consideration, which supports both, has not moved from the vendor to both promisors; both have not received the actual benefit. One must be the original principal promise, and the other the collateral—mado in aid of the former. The mere form of the expression used by the promisors, “ I will pay for them,” or “I will see you paid for them,” or “ pay for them if he does not,” does not, in all cases, solve the difficulty. A promise may be absolute in form, yet but a guaranty in fact. The law settles the difficulty by the application of the simple test, who has had the goods on his promise, express or implied ; (and the law will not imply a promise by one, if the other has made an exclusive express promise.) He is the principal debtor, the other the guarantor. Where one promisor is liable, the other is not, and vice versa, unless the liability he joint. That is the principle' of Matson v. Wharam and Cahill v. Bigelow.
The statute should receive a construction establishing a rule certain and easily applied by all in the transaction of their ordinary business, and none can he found better fulfilling these conditions than that of Chief Justice Shaw, staled in Cahill v. Bigelow, and applied by the judge, at the trial, to the solution of the present case.
Unless we are prepared to fritter away the evident ira*456port of the statute by subtle refinements, incomprehensible to those upon whose business transactions the statute operates, such a rule should be adopted and adhered to, not to be departed from on every occasion when it may seem to be somewhat harsh.in its operation. The rule is founded upon a construction harmonizing with the object of the act, and is eminently plain as well as practical.
It was urged that Dow’s promise was to pay tiie debt out of the funds of Gibson in his ban Is, and therefore fell without tiie statute, and brought the ease within tiie rule of Andrews v. Smith, 2 Cr., Mees. & Ros. 627; and Sweeting v. Asplin, 7 M. & W. 173; and Barker v. Bucklin, 2 Denio 45, viz., tiiat an undertaking to pay for another, ouL of his funds, when they come to hand, is no more iban a prospective assignment of a particular fund, with an attornment of the defendant to tiie assignment; that a promise to pay another’s debt, not out of funds 'of tiie promisor, but by faithfully applying tiie debtor’s own funds, when they come to hand, is not within tiie statute.
In Andrews v. Smith, tiie declaration was special upon a contract to pay one Hill’s debt, or for goods supplied to Hill by plaintiff, out of moneys received by defendant belonging to Hill. Lord Abinger, and Parke, Baron, concurred in opinion that tiie ease was not within tiie statute, upon tiie ground that, it was nothing more than an agreement to apply Hill’s funds, when they came to hand, to tiie payment of Hill’s debt. Sweeting v. Asplin decides that, upon such a contract, tiie action must be special; that indebitatus assumpsit would not lie, whether tiie undertaking was original or collateral.
In this case neither tiie declaration nor tiie proof brought tiie case within tiie rule; tiie cause was not tried upon that basis; no such question was made at tiie trial.
Tiie notice given by tiie plaintiffs under tiie iieu law, treating Gibson as the principal debtor, and' Dow as his employer, was clearly competent evidence upon tiie question to whom was tiie-credit given. The service of tiie *457noticie was purely a voluntary act of the plaintiffs; it recognized Gibson as the person indebted to them for the lumber, and claimed payment of the debt upon that express ground.
The rendering of an account debiting the goods to one of the parties, is a fact of more or less weight, according to circumstances, showing who was trusted. Larson v. Wyman, 14 Wend. 246.
The judgment should be affirmed.
Justices Ogden and Vkedenbuiigii concurred.
Cited in Joslin v. N. J. Car Spring Co., 7 Vr. 146; Price v. Trusdell, 1 Stew. 203.