court said that the promise was very clearly to the effect that the purchaser at the tax sale would convey a good title, and that if he did not the town treasurer would be responsible, and added: “Our statutes declare void, unless in writing, 'every special promise to answer for the debt, default, or misdoings of another person,' and they forbid any action on any favorable representation or assurance concerning the 'dealings of any other person,' unless in writing.

Whether the transaction with Tozer [the town treasurer] was a representation or assurance, or whether it was a promise, it related to a contemplated contract with Warren [the purchaser at the tax sale] to which Tozer was not a party, and under which a warranty of title was implied by the rules of law. It is impossible to regard it as anything but a collateral undertaking involving no liability until Warren's contract failed."

In Dryden v. Barnes (1905) 101 Md. 346, 61 Atl. 342, an agent for the sale of a farm and the personal property thereon, who signed an agreement in behalf of his principal for the sale of the farm, subsequently entered into a written agreement with the buyer by which he agreed to see that the former was paid for every article belonging to the vendor which was on the farm at the time of the original contract. In an action upon this agreement the agent undertook to defend on the ground that this writing evidenced a collateral undertaking and was within the Statute of Frauds, because no consideration was expressed therein. In overruling this contention, the court said that the entire evidence showed that the undertaking of the defendant was direct and original, and not collateral; that it did not have reference to making good the liability of the owners of the farm under the contract which the agent had made for them, but appeared rather as intended to serve the purpose of the agent himself. In this regard it is pointed out that as the owner of the farm lived in another state, the plaintiff, the purchaser of the farm, may have preferred to re

scind the contract rather than undertake to enforce it; and it is inferable that the defendant gave the plaintiff the agreement in question as an inducement for him to relinquish the right to rescind and to consummate the contract. The defendant had an interest in having the contract consummated because of his commissions on the sale. It was no answer to this to say that the defendant's commissions were already earned; for, this being as it may, a rescission of the contract under the circumstances would have raised complications as to this; and thus there was supplied to the defendant a motive and reason.

In so far as the last case was disposed of, upon the ground that the contract was original because as made by the agent in his own behalf, to promote his own interests, it as already pointed out, is beyond the scope of the annotation. It is of interest, however, in this connection, for the reason that as to the facts it closely resembles the cases included in the annotation, which involve the question as to the effect of the fact that the promise by a third party related to a matter not covered by the original contract, to make the second agreement original, and hence not within the statute. In this regard it is to be noted that while in form the agreement by the agent was merely to assure the performance of the agreement of the principal as to the personal property to be left upon the farm, it is apparent that, in part at least, it related to certain specific property, which does not clearly appear to have been included in the agreement of the principal.

A case of interest upon the point, although not strictly within the scope of the note, is Schell v. Stephens (1872) 50 Mo. 375, which holds that a warranty by an auctioneer as to title of property he is selling at auction is not within the Statute of Frauds. In this case, however, the auctioneer also signed the contract, which was in the form of a lease, so that he made himself liable to the purchaser. The point was raised, however, as to the

warranty being made by a third person, and upon this point the court said: "The plaintiff relied upon evidence of an express verbal warranty of title, and also upon the warranty implied by selling as principal, as evidenced by the above writing and the defendant treating it in either case as a collateral undertaking, asked for a declaration that such warranty must be in writing because made to answer for the default of another person, and therefore contrary to the Statute of Frauds. But this would depend upon whether the promise was in fact to answer for another; i. e., to guarantee the promise of another, or was an original undertaking. If the auctioneer alone was trusted, and he expressly agreed for himself to warrant the title, then the promise is not collateral, and is good though not in writing.”

And see upon this point King v. Summitt (1881) 73 Ind. 312, 38 Am. Rep. 145, holding that a verbal guaranty that a note is a genuine and valid one and its maker liable to pay it, made by the assignor to the assignee at the time of its assignment and delivery, is based upon a sufficient consideration, and is a valid and binding obligation, and not within the Statute of Frauds, providing that no action shall be brought to charge any person upon any special promise to answer for the debt, default, or miscarriage of another. The court in reaching this conclusion said: "It will be observed that this guaranty is

not, in terms, a special promise to answer for the debt, default, or miscarriage of another, nor can it be construed, as we believe, to embrace such an undertaking. It does not purport to be a promise to pay the debt for which the note was given, nor a promise that Hayden [the guarantor] himself should pay it, but is simply a guaranty that the note is genuine, and that Hayden is bound by it; in other words, that Hayden had capacity to make it. It differs entirely from a promise to pay the debt. In such case, if the promise is valid, nothing short of payment amounts to a compliance; whereas in this case if the note is genuine, and Hayden had capacity to make it, the obligation is fulfilled without any payment at all; indeed, it is not broken."

In this regard attention is called to Charlotte v. Alexander (1917) 173 N. C. 515, L.R.A.1917F, 493, 92 S. E. 384, which holds that where a municipality was prohibited by statute from making street improvements where the assessment on the lands of the adjoining owners exceeded 20 per cent of their value, that a property owner who agreed to procure the waiver in writing of this provision by other property owners, so that the street could be improved and an assessment of a greater per cent levied, was liable upon this oral agreement, since the same was not within the Statute of Frauds, it not being a promise to answer for the debt or default of another. A. G. S.

Headnotes by PITCHFORD, J.

plaintiff in error will be designated as protestant, and defendant in error as petitioner. The county judge appointed petitioner as guardian. Protestant appealed to the district court. Upon trial in the district court the judgment of the court was affirmed, from which judgment the protestant prosecutes an appeal to this court.

The trial judge makes, among others, the following findings of fact: That the minor, Mildred Coats, is the owner of her mother's allotment of land, consisting of 200 acres of valuable land, more than 100 acres of which are in cultivation, and personal property to the amount of $1, 000 to $2,000, all of which was in herited from her mother, Amanda Coats, who was a member of the Indian tribes, and which she owned at the time of her marriage to the said C. M. Coats. The court further found that the petitioner, R. F. Benton, was a man of rare business judgment and ability, and by virtue of his business qualifications had accumulated large and valuable holdings both in real and personal property; that during the lifetime of his daughter, Amanda Coats, he looked after and conserved her property, and had since her death, and that he was thoroughly capable of managing said estate and had expressed a willingness to do so without charge for his services; that the petitioner had a valuable and comfortable home where the said infant would be surrounded by all the conveniences necessary to her proper growth, development, and education, and that said infant would be properly cared for, and its temporal, mental, and moral welfare properly conserved; that the protestant herein, C. M. Coats, the father of said child, had no home to which he could take said child, but that he lived with his three older brothers in a small fourroomed house, in which also lived, besides the three brothers his mother and two sisters, one of the sisters having two children, and that they lived on a rented farm, and that the protestant had no home of which

he was the head to which he could take the child, and that the protestant was a minor twenty years of age, and not a suitable person to have the care and custody of said infant, or the management of her estate.

The conclusion of law reached by the court is as follows: "The court therefore concludes, as a matter of law in this instance, it should be governed by what appears to be for the best interests of the child in respect to its temporal, its mental, and moral welfare, and that these would be best served by the appointment of R. F. Benton, petitioner herein, as guardian of the person and estate of said minor."

In defendant's brief, we find the following statement: "Defendant in error desires to state to the court that since this matter was heard in the county court of Jefferson county, Oklahoma, his family has so changed that he felt that the best interests of the said Mildred Coats would be served by a return of said child to plaintiff in error, and he has placed the said Mildred Coats in the care and custody of the plaintiff in error, and consents that the order of the county court of Jefferson county, Oklahoma, be modified, and that the said C. M. Coats be appointed guardian of the person of said minor."

The petitioner having realized by brief experience the trouble and inconvenience attendant upon caring for an infant of seventeen months of age, and the further fact that'an old grandfather, however affectionate he may be, is rarely qualified to devote to an infant of the tender years of Mildred the assiduous care necessary to its comfort and well-being during all hours of the day as well as the night, we are not surprised that he, soon after the custody of the child had been awarded to him by the court, realized that the child needed careful female attention, and was, no doubt, more than anxious to relieve himself of this delicate responsibility by returning the child to the father, where it could be cared for by the

grandmother, and where all the proof in the case convincingly shows that the temporal welfare, at least, of the child, would be better conserved. In concluding that protestant was not a suitable person to be appointed guardian, the trial court was evidently influenced by the fact that protestant, his two brothers, his mother, and two sisters lived together; that he lived on a rented farm, and had no home of which he was the head to which he could take the child; and that he was under twenty-one years of age. While the home occupied by the protestant was not palatial, and was not equipped with modern conveniences, it appears from the evidence, however, that it was a comfortable home. The mother of the protestant was fifty-nine years of age, in the enjoyment of perfect health, and had reared eight children, and if we judge the eight by these mentioned in the evidence, she reared her children to be industrious, economical, and moral.

On

It is true that, in one sense, the petitioner, the grandfather, was in a better position to give the child a more brilliant future than the father was able to do, in so far as money was concerned, but it appears that, by reason of his large business interests, the grandfather had little time. to devote to the care of the child; that he was necessarily dependent upon others to give the care and attention; and that his daughter, sixteen years of age, was the only member of his family living with him permanently. the other hand, in the home of the protestant was the old grandmother, who expressed a willingness and a desire to have the child in her home, and here, let us say, it is rare, indeed, to find an old grandmother who fails to give to a grandchild the same amount of love and affection that she gave to her own children. The unmarried sister of the protestant, living in the same family, thirty-five years of age, also expressed a willingness to care for the child. In our judgment, it would be difficult 19 A.L.R.-66.

to find a home where this infant would receive to a greater extent that loving attention so absolutely needful than it would in this home wherein resided the father, the maidenly aunt, and the old grandmother.

Before proceeding further in the discussion of this cause, we cheerfully grant the wish to the petitioner evidenced by his consent, and hold that the judgment of the trial court should be modified and that the protestant, C. M. Coats, be appointed guardian of the person of the said Mildred; and in this connection we express the opinion that such custody should have been awarded by the trial court in the first instance.

The petitioner, however, strenuously contends that the protestant was not qualified to be appointed guardian of the estate of his minor child, because he (the protestant) was under twenty-one years of age. A careful examination of the evidence clearly establishes that the protestant was an industrious, sober, moral boy; that he attended Sunday school and church. It is true he was not possessed with a great amount of worldly goods; he had been reared in a humble home, though respectable. At the time of his marriage, although but seventeen years of age, he had passed through the eighth grade at school and had saved up $400 in cash, which indicated industry as well as frugality on his part. While this is not a considerable sum, yet few boys of seventeen can make a showing as creditable.

Upon his marriage, he and his wife moved onto the lands allotted to her as a member of the Indian tribes, and successfully farmed the lands for the year 1917; besides, he placed improvements on the premises amounting to something like $250. His wife's father, at the time of the marriage, gave them $2,000. The young husband invested this sum in cattle, and, when he and his wife. separated, he had increased the number of cattle to twenty-four, which were turned over to the wife.