Colorado § 38-10-112 - Void agreements.

§ 38-10-112. Void agreements.

(1) Except for contracts for the sale of goods which are governed by section 4-2-201, C.R.S., and lease contracts which are governed by section 4-2.5-201, C.R.S., in the following cases every agreement shall be void, unless such agreement or some note or memorandum thereof is in writing and subscribed by the party charged therewith:

(a) Every agreement that by the terms is not to be performed within one year after the making thereof;

(b) Every special promise to answer for the debt, default, or miscarriage of another person;

(c) Every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry.

(2) Repealed.

Source: R.S. p. 339, § 12. G.L. § 1262. G.S. § 1521. R.S. 08: § 2666. C.L. § 5111. CSA: C. 71, § 12. CRS 53: § 59-1-12. C.R.S. 1963: § 59-1-12. L. 69: p. 392, § 1. L. 77: (2) repealed, p. 340, § 47, effective January 1, 1978. L. 91: (1) amended, p. 321, § 5, effective July 1, 1992.

ANNOTATION

I. General Consideration.

III. Agreements not to be Performed Within One Year.

IV. Promise to Answer for the Debt of Another.

V. Agreement Made Upon Consideration of Marriage.

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Remedy of Specific Performance in Colorado Contracts", Part I, see 8 Rocky Mt. L. Rev. 15 (1935); Part II, see 8 Rocky Mt. L. Rev. 106 (1936). For article, "One Year Review of Cases on Contracts", see 33 Dicta 57 (1956). For article, "Domestic Case Update", which discusses cases concerning antenuptial agreements, see 14 Colo. Law. 209 (1985). For article, "Enforcing Oral Contracts", see 50 Colo. Law. 41 (Jan. 2021).

Purpose of statute of frauds. The statute is to be invoked for the purpose of preventing the commission of a fraud. Walker v. Bruce, 44 Colo. 109, 97 P. 250 (1908).

Statute of frauds furnishes rule of evidence, but not of pleading. Tucker v. Edwards, 7 Colo. 209, 3 P. 233 (1883); Garbanati v. Fassbinder, 15 Colo. 535, 25 P. 991 (1890); Ruth v. Smith, 29 Colo. 154, 68 P. 278 (1901).

Plea of statute of frauds is personal privilege; if not pleaded, it will be regarded as waived. Benjamin v. Mattler, 3 Colo. App. 227, 32 P. 837 (1893).

Statute of frauds must be specially pleaded, if relied upon in defense. Benjamin v. Mattler, 3 Colo. App. 227, 32 P. 837 (1893); Schildt v. Topliss, 98 Colo. 464, 56 P.2d 1328 (1936).

In an action upon an oral contract, the defense that it was an agreement to answer for the debt of another and void under this section because it is not in writing is not available to defendant unless the statute be pleaded. Hamill v. Hall, 4 Colo. App. 290, 35 P. 927 (1894); Cerrusite Mining Co. v. Steele, 18 Colo. App. 216, 70 P. 1091 (1902).

Unless contractual violation shown in complaint. Tucker v. Edwards, 7 Colo. 209, 3 P. 233 (1883); Hunt v. Hayt, 10 Colo. 278, 15 P. 410 (1887); Garbanati v. Fassbinder, 15 Colo. 535, 25 P. 991 (1890); Hamill v. Hall, 4 Colo. App. 290, 35 P. 927 (1894); Tynon v. Despain, 22 Colo. 240, 43 P. 1039 (1896).

Because the statute of frauds is a defense of which the defendant may or may not avail himself, and if he desires to take advantage thereof, unless the infirmity appears in the complaint, he must affirmatively plead it by answer and he must rely upon it at the trial. Hunt v. Hayt, 10 Colo. 278, 15 P. 410 (1887); Pettit v. Mayhew, 43 Colo. 274, 95 P. 939 (1908); Kingdom of Gilpin Mines, Inc. v. McNeill, 88 Colo. 44, 291 P. 1036 (1930); Gage v. Young, 95 Colo. 130, 33 P.2d 389 (1934).

Where the action alleges a contract price which does not appear in the writing relied upon, the writing is not sufficient to take the contract out of the statute of frauds. Howse v. Crumb, 143 Colo. 90, 352 P.2d 285 (1960).

Where the contract sued upon is denied by the answer, the statute of frauds is available without being specially pleaded. Salomon v. McRae, 9 Colo. App. 23, 47 P. 409 (1896); Sch. Dist. No. 46 v. Johnson, 26 Colo. App. 433, 143 P. 264 (1914).

Part-performance exception applied in the case of an oral joint venture partnership agreement where performance by both parties was substantial and consistent with evidence of the terms of the joint venture. McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394 (Colo. App. 1989) (disagreeing with Sch. Dist. No. 46 v. Johnson).

Parol agreement to reduce contract to writing unenforceable. A parol agreement to reduce to writing a contract which is within the statute of frauds is unenforceable because a contract that is unenforceable by reason of the statute cannot be made indirectly enforceable by promising to execute a sufficient memorandum or otherwise to satisfy the requirements of the statute. Rupp v. Hill, 149 Colo. 48, 367 P.2d 746 (1961).

Full performance by party makes void contract binding. Although a contract may have been void under the statute of frauds, nevertheless, if it has been fully performed by one of the parties, it is binding on the other party. Schust v. Perington, 169 Colo. 39, 453 P.2d 599 (1969).

When statute not defense to action on loan agreement. The statute of frauds is not available as a defense to an action on a loan agreement where the agreement has been fully performed by plaintiff. Nissen v. Dews, 43 Colo. App. 228, 603 P.2d 966 (1979).

Valid contract not altered by void subsequent oral agreement. Subsequent void oral agreement cannot alter, revoke, or modify previous valid contract. Harvey v. Morey, 22 Colo. 412, 45 P. 383 (1896).

Action may be maintained in Colorado on a contract valid where made, notwithstanding it would be void under the Colorado statute of frauds, if made in Colorado. Wolf v. Burke, 18 Colo. 264, 32 P. 427 (1893).

Applied in Schilling v. Rominger, 4 Colo. 100 (1878); Little v. Dougherty, 11 Colo. 103, 17 P. 292 (1887); Von Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890); Hill v. Groesbeck, 29 Colo. 161, 67 P. 167 (1901); Hall v. Allen, 46 Colo. 355, 104 P. 489 (1909); Yost v. Irwin, 53 Colo. 269, 125 P. 526 (1912); Jones v. Ceres Inv. Co., 60 Colo. 562, 154 P. 745 (1916); Jasper v. Bicknell, 68 Colo. 308, 191 P. 115 (1920); Johnson v. Sanchez, 72 Colo. 514, 212 P. 522 (1923); Enyart v. Orr, 78 Colo. 6, 238 P. 29 (1925); Heuschkel v. Wagner, 78 Colo. 61, 239 P. 873 (1925); Clayton Coal Co. v. King, 108 Colo. 63, 113 P.2d 672 (1941); Hoff v. Armbruster, 125 Colo. 198, 242 P.2d 604 (1952); Lindsey v. Oregon-Washington Plywood Co., 287 F.2d 710 (10th Cir. 1961); Kodekey Elecs., Inc. v. Mechanex Corp., 486 F.2d 449 (10th Cir. 1973); World of Sleep, Inc. v. Seidenfeld, 674 P.2d 1005 (Colo. App. 1983); In re Frontier Airlines, Inc., 121 B.R. 386 (Bankr. D. Colo. 1990).

II. THE MEMORANDUM.

A. Form and Sufficiency.

B. The Signature.

A. Form and Sufficiency.

Agreement must express all essential conditions of bargain to satisfy section. To satisfy this section, the agreement or memorandum must, either by its own terms or by reference to some other writing, express with reasonable certainty all the conditions and essential elements of the bargain. Salomon v. McRae, 9 Colo. App. 23, 47 P. 409 (1896).

Several writings read in connection show memorandum of agreement. Several writings of different dates may be read in connection to show a memorandum of an agreement. Beckwith v. Talbot, 2 Colo. 639 (1875), aff'd, 95 U.S. 289, 24 L. Ed. 496 (1877).

The contract, which the parties have made, may be gathered from letters which have passed in correspondence between them; it is not necessary that every paper should contain all the necessary elements of the contract which may be authenticated and established through the medium of letters and separate writings and documents, provided that they refer to each other and to the same persons and things, and that they manifestly relate to the same contract and transaction. Beckwith v. Talbot, 2 Colo. 639 (1875), aff'd, 95 U.S. 289, 24 L. Ed. 496 (1877); Crystal Palace Flouring Mills Co. v. Butterfield, 15 Colo. App. 246, 61 P. 479 (1900); McClurg v. Crawford, 209 F. 340 (8th Cir. 1913); S.C. Ins. Co. v. Fisher, 698 P.2d 1369 (Colo. App. 1984).

Notices of premium due sufficient memorandum. Where each year the company sent notices of the premium due, identifying the contract, the dates between which the premium operated making the contract effective and subscribed to by an agent whose authority was not questioned, this is a sufficient memorandum as required by this section to take the obligation out of the statute of frauds. Mass. Bonding & Ins. Co. v. Bd. of County Comm'rs, 100 Colo. 398, 68 P.2d 555 (1937).

Agreement between finance company's officers and creditor sufficient memorandum. An agreement between officers of finance company and creditor, providing for a manager to operate the creditor's business subject to the supervision and control of the officers of the finance company, is a sufficient memorandum to prevent this section being a bar in action against finance company to recover for goods sold to the creditor. Colo. Fin. Co. v. B.F. Bennet Oil Co., 110 Colo. 1, 129 P.2d 299 (1942).

Letter insufficient to bind wife to payment of husband's debt. Where Mrs. B., who on account of the illness of her husband was attending to his business, wrote to his creditor the following letter: "Mr. H. You will find enclosed $50, all I can raise at present. I hope to be able to give you more very soon. Please give me credit, and oblige. Mr. B. is home sick. Mary B.". The letter was insufficient, under this section, to bind her to the payment of her husband's debt. Bohm v. Hoffer, 2 Colo. App. 146, 29 P. 905 (1892).

Extrinsic oral evidence inadmissible to vary written contract terms. Extrinsic oral evidence is inadmissible to contradict, add to, subtract from, or vary the terms of a written contract, and the rule applies with greater force to contracts required by the statute of frauds to be in writing. Randolph v. Helps, 9 Colo. 29, 10 P. 245 (1885); Nesmith v. Martin, 32 Colo. 77, 75 P. 590 (1904).

B. The Signature.

Term "subscribed" is substitute for term "signed". Coon v. Rigden, 4 Colo. 275 (1878).

Letters referring to contract evidence of assent and subscription. Where a contract was signed by one party and retained by the other, letters subsequently written by the latter, to which the contract was clearly referred, are sufficient to show his assent, and to show that he subscribed the contract within the meaning of this section. Beckwith v. Talbot, 2 Colo. 639 (1875), aff'd, 95 U.S. 289, 24 L. Ed. 496 (1877).

Bills initialed by salesman did not constitute memorandum in writing. Where a salesman sold bills of goods on credit and indorsed the bills thus: "O.K. McR.", the latter letters being his initials, the indorsement did not constitute an agreement or memorandum in writing within the meaning of this section, and that parol evidence was inadmissible to show that, by a prevailing custom of the trade, it was intended by the indorsement that the salesman should be answerable to his employer for the default of the purchaser in making payment. Salomon v. McRae, 9 Colo. App. 23, 47 P. 409 (1896).

III. AGREEMENTS NOT TO BE PERFORMED WITHIN ONE YEAR.

Agreement not performed within one year invalid generally. An agreement that by its terms is not to be performed within one year from the making thereof shall be invalid or void unless the agreement or some note or memorandum thereof is in writing and signed by the party to be charged. Lucas v. Whittaker Corp., 335 F. Supp. 889 (D. Colo. 1971), aff'd, 470 F.2d 326 (10th Cir. 1972).

Subsection (1)(a) inapplicable where possibility of performance within year. Subsection (1)(a) does not apply to oral contracts which may not be performed within one year. It refers to contracts which by their affirmative terms exclude performance within that time. Woodall v. Davis-Creswell Mfg. Co., 9 Colo. App. 198, 48 P. 670 (1897); Clark v. Perdue, 70 Colo. 589, 203 P. 655 (1922); Lloyd v. Grynberg, 464 F.2d 622 (10th Cir. 1972).

Oral agreement not to engage in business for three years void. An agreement, not to engage in a certain business at, or near, a certain place for a period of three years, is an agreement not to be performed within one year, and under this section is void unless in writing. DeBord v. Holcomb, 13 Colo. App. 161, 57 P. 548 (1899).

Subsection (1)(a) is inapplicable to leases. Sears v. Smith, 3 Colo. 287 (1877).

Subsection (1)(a) has no application to parol leases or contracts relating to any interests in lands. Northrup v. Nicklas, 115 Colo. 207, 171 P.2d 417 (1946).

Oral agreement for yearly payments not within section. An oral agreement as to yearly payments of interest on a promissory note was not within this section for the original contract; a note payable on, or before, 10 years from date, could have been performed within one year. Kuhlmann v. McCormack, 116 Colo. 300, 180 P.2d 863 (1947).

Oral promise to pay debts upon inheritance not within section. A debtor's oral promise to pay his debts if he should inherit an interest in his father's estate, notwithstanding his discharge in bankruptcy, is not an agreement not to be performed within one year. Winbourn v. Crump, 77 Colo. 574, 238 P. 58 (1925).

Agreement whose performance is contingent upon happening not within section. An oral agreement, the performance of which is dependent upon the happening of a certain contingency, is not within the statute if the contingency is such that it may occur within one year; and this is true, although the contingency may not in fact happen until after the expiration of the year, and although the parties may not have expected that it would occur within that period. Winbourn v. Crump, 77 Colo. 574, 238 P. 58 (1925).

Modification of lease by parol for period less than one year. A modification of a written lease by parol for a period less than one year is not within the statute of frauds. Doherty v. Doe, 18 Colo. 456, 33 P. 165 (1893).

Computation of time. The year mentioned in subsection (1)(a) runs from the day when the agreement is made, and not from the day when the performance is to begin. Sch. Dist. No. 46 v. Johnson, 26 Colo. App. 433, 143 P. 264 (1914).

Oral agreement for at-will employment. Where defense of statute of frauds raised, neither partial performance nor payment of compensation deemed sufficient to avoid bar of statute as to enforcement of entire contract. Chidester v. E. Gas & Fuel Assoc., 859 P.2d 222 (Colo. App. 1992).

While part performance can take an oral agreement out of this section, such part performance must be fairly referable to no other theory besides that allegedly contained within the oral agreement. Nelson v. Elway, 908 P.2d 102 (Colo. 1995).

Where an oral agreement to sponsor sporting events for two seasons allowed a party to terminate the agreement after one season, the option to terminate may fairly be interpreted as an alternative way to perform the agreement; therefore, the agreement may be performed within one year, and the statute of frauds does not void the agreement. Prof'l Bull Riders, Inc. v. Autozone, Inc., 113 P.3d 757 (Colo. 2005).

IV. PROMISE TO ANSWER FOR THE DEBT OF ANOTHER.

Promise is considered original when given for promisor's benefit, rather than to secure credit for a third party debtor. Cramblit v. Chateau Motel, Inc., 28 Colo. App. 213, 472, P.2d 183 (1970).

A promise by one, for himself, to pay for services rendered to another, is an original promise, and binding without writing. Tuttle v. Welty, 46 Colo. 25, 102 P. 1069 (1909); Spelts v. Anderson, 67 Colo. 63, 185 P. 468 (1919).

Where one, to promote his own interest, promises to pay the debt of another, the transaction constitutes an original contract and is not within the statute of frauds. Spelts v. Anderson, 67 Colo. 63, 185 P. 468 (1919); Moon v. Greenlee, 69 Colo. 482, 195 P. 1100 (1921); Takamine v. Hirschfeld, 81 Colo. 501, 256 P. 312 (1927); Ady v. Weicker Transfer & Storage Co., 97 Colo. 230, 48 P.2d 807 (1935); Mayer Oil Co. v. Schnepf, 100 Colo. 578, 69 P.2d 775 (1937).

An agreement by a debtor to pay his creditor's obligation to a third party has never been regarded as a collateral promise, but wherever it is entered into upon a sufficient consideration and is accepted by the party to whom the money is to be paid, it has always been deemed an original promise, and enforceable by the party who is entitled to its advantages. Thatcher v. Rockwell, 4 Colo. 375 (1878), aff'd, 105 U.S. 467, 26 L. Ed. 949 (1881); Mulvany v. Gross, 1 Colo. App. 112, 27 P. 878 (1891).

The promise of one person, though in form to answer for the debt of another, if founded upon a new and sufficient consideration, moving from the creditor and promised to the promisor, and beneficial to the latter, is not within the statute of frauds, and need not be in writing. Green v. Morrison, 5 Colo. 18 (1879); De Walt v. Hartzell, 7 Colo. 601, 4 P. 1201 (1884); Maxwell v. Dell, 11 Colo. 415, 18 P. 561 (1888); Mulvany v. Gross, 1 Colo. App. 112, 27 P. 878 (1891); Greene v. Latcham, 2 Colo. App. 416, 31 P. 233 (1892); Fisk v. Reser, 19 Colo. 88, 34 P. 572 (1893).

Promise of the secretary of a corporation to pay a balance for printing stock certificates if printer "would go ahead" and print them, which he did is an original promise and not within the statute of frauds. Takamine v. Hirschfeld, 81 Colo. 501, 256 P. 312 (1927).

An oral promise is collateral and thus barred by the statute of frauds, if the leading object of the promise is to become a surety or guarantor on the debt of another; the promise is original when the performance of the agreement directly benefits the promisor. Idealco, Inc. v. Gunnin, 746 P.2d 69 (Colo. App. 1987).

An original oral promise will only be enforced if the accrual of the benefit to the promisor is contingent upon performance by the promisee. Idealco, Inc. v. Gunnin, 746 P.2d 69 (Colo. App. 1987).

Applicability of subsection (1)(b). A bank, which ignorantly pays money to the holder of an instrument upon the faith of a third person's statement that he knows the holder to be the payee and which is afterwards compelled to pay the amount to the true payee, may recover the sum from the third person in an action for damages occasioned by the deceit, and subsection (1)(b) cannot be invoked in behalf of the defendant in such case, because his liability does not grow out of any special promise to answer for the debt, default, or miscarriage of another, nor upon any agreement required to be in writing. Lahay v. City Nat'l Bank, 15 Colo. 339, 25 P. 704 (1890).

Part performance which will withdraw a promise covered by subsection (1)(b) from the statute must consist of acts from which it clearly appears that the performing party would not have done in the absence of the agreement. Masinton v. Dean, 659 P.2d 50 (Colo. App. 1982).

What is done as part performance must be consistent with no theory other than the oral agreement, otherwise it does not tend to prove the latter. Masinton v. Dean, 659 P.2d 50 (Colo. App. 1982).

To be binding collateral agreement must be in writing. An agreement, if it is not collateral, but in the nature of an original agreement to pay the debt of another, founded on a sufficient consideration received by the promisor himself, is not within the provisions of subsection (1)(b), and therefore, need not be in writing; but, if the agreement to answer for the debt of another be wholly collateral, it must be in writing. Thatcher v. Rockwell, 4 Colo. 375 (1878), aff'd, 105 U.S. 467, 26 L. Ed. 949 (1881); Fisk v. Reser, 19 Colo. 88, 34 P. 572 (1893).

Words importing collateral undertaking. The words, "we will see the articles paid for", or equivalent words, standing alone and uncontrolled by circumstances showing a contrary intent, import a collateral undertaking, and are within the statute of frauds. Wagner v. Hallack, 3 Colo. 176 (1877); Clayton Coal Co. v. King, 108 Colo. 63, 113 P.2d 672 (1941).

Where the president of an insolvent bank presented to one of the directors, who was also a depositor, a release of his claim in the latter capacity, and to induce the execution thereof, said to the director: "You shall have your money out of the assets of the bank if this settlement goes through." "I will take the assets of the bank, and make the money out of them, and you shall have every nickel." "You shall have all your money back, with interest." These words were a promise to pay the debt of the bank and the oral agreement is void under subsection (1)(b). Freeman v. Hampton, 67 Colo. 90, 185 P. 251 (1919).

Where defendant said concerning lumber purchased by another: "If he doesn't pay for it, I will", this is not an original undertaking, but a collateral promise and within the statute of frauds. Seal v. Colo. Coal & Lumber Co., 79 Colo. 141, 244 P. 469 (1926).

Agreement within statute where object is to become guarantor to promisee. When the leading object of the promise or agreement is to become guarantor or surety to the promisee for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before or after, or at the time with the promise of the principal, is within the statute of frauds and not binding unless evidenced by writing. Cramblit v. Chateau Motel, Inc., 28 Colo. App. 213, 472 P.2d 183 (1970).

Where plaintiff sold to a tenant goods and charged them upon his books to such tenant, a promise by the landlord to pay such account, made without consideration, was a promise to pay the debt of another within subsection (1)(b), and was not binding unless made in writing. Burson v. Bogart, 18 Colo. App. 449, 72 P. 605 (1903).

Full performance of promise by plaintiff removes matter from statute. Assuming that the alleged promises of the defendants amounted to a special promise to answer for the debt of another person, the full performance on the part of plaintiff of the acts required of him under the oral agreement would remove the case from the statute of frauds. Schust v. Perington, 169 Colo. 39, 453 P.2d 599 (1969).

Promise to pay another's debt for consideration not within statute. Where one promises to pay the debt of another in consideration of money or property received from the debtor for the expressed purpose of paying the debt, the promise is not within the statute of frauds. Hughes v. Fisher, 10 Colo. 383, 15 P. 702 (1887); Durkee v. Conklin, 13 Colo. App. 313, 57 P. 486 (1899); Cerrusite Mining Co. v. Steele, 18 Colo. App. 216, 70 P. 1091 (1902); McIntire v. Schiffer, 31 Colo. 246, 72 P. 1056 (1903); Burson v. Bogart, 49 Colo. 410, 113 P. 516 (1911); Argys v. McGlothlen, 130 Colo. 490, 276 P.2d 983 (1954).

Where, after the plaintiff refused to sell supplies to a corporation lacking credit, the defendant then said: "Charge these things to me, and let the boys at the mine have what they need", the promise was original rather than collateral or of guaranty; hence, not within the statute. Redington v. Jenkins-McKay Hardware Co., 111 Colo. 363, 141 P.2d 891 (1943).

Return to work on promise of payment of wages not within statute. Where oil drillers ceased work because of default of payment of their wages by the original contractor, and returned to work on the promise of officers of the owner company that the latter would see that their wages were paid, the promise is not within the statute of frauds. Mayer Oil Co. v. Schnepf, 100 Colo. 578, 69 P.2d 775 (1937).

Promise to assume notes for purchase of property not within statute. Where defendants purchased property of plaintiffs incumbered by trust deed, and orally agreed to assume the notes secured thereby, such promise is not an agreement to answer for the debt of another person within the meaning of subsection (1)(b). Enos v. Anderson, 40 Colo. 395, 93 P. 475 (1907).

Payment of note in exchange for conveyance of property not within statute. A promise to a debtor to pay his debt in consideration of the conveyance of property to the promisor is not within the statute of frauds. Enos v. Anderson, 40 Colo. 395, 93 P. 475 (1907); Burson v. Bogart, 49 Colo. 410, 113 P. 516 (1911); United States Mining Corp. v. Goble, Inc., 82 Colo. 59, 256 P. 1091 (1927).

Where, in exchange for property conveyed to her by her husband, the wife promised to pay off the husband's note, the agreement was nothing more than a promise to perform an obligation in consideration of which the lands were conveyed to her; this agreement constituted an original contract by the wife, not within the statute of frauds. Green v. Richardson, 4 Colo. 584 (1879); McIntire v. Schiffer, 31 Colo. 246, 72 P. 1056 (1903).

Where agreement not promise to pay another's debt. An agreement to place a person's name upon a settlement check is not a promise to pay the debt of another, although performance of the promise may result in the discharge of the debt of another. Davis v. Ciancio, 172 Colo. 54, 470 P.2d 30 (1970).

Partnership, agreeing that a loan to one of partners would be a partnership debt, is a direct and not collateral agreement and does not come within the statute. Kelsey v. Munson, 198 F. 841 (8th Cir. 1912).

A contract, by which certain expert witnesses were to testify in behalf of the managing officers of a mining corporation in an action against them for sending fraudulent statements through the mail in regard to the values of its properties, is a direct promise to pay the stipulated fees and expenses of the corporation and is not a contract to answer for the debt, default, or miscarriage of another within this section. Lincoln Mt. Gold Mining Co. v. Williams, 37 Colo. 193, 85 P. 844 (1906).

Test for liability for debt of another. The test for whether one by an oral promise becomes liable for the debts of another is whether or not a promise has been made as a surety of the debtor or as an original undertaking by the promisor. Seal v. Colo. Coal & Lumber Co., 79 Colo. 141, 244 P. 469 (1926).

Debtor and creditor may sue for breach of promise. Upon the breach of a promise to pay the debt of another in consideration of money or property received from the debtor, not only the debtor himself, but the creditor, may sue, even though the promise is made to the debtor alone. Argys v. McGlothlen, 130 Colo. 490, 276 P.2d 983 (1954).

Plaintiff has burden of establishing that oral promise asserted was original and unconditional and thus amounted to an assumption by defendant of the direct liability for goods thereafter furnished to third parties. Clayton Coal Co. v. King, 108 Colo. 63, 113 P.2d 672 (1941).

Novation of a guaranty is an original agreement rather than a collateral agreement and thus not within the purview of the statute of frauds. Moffat County State Bank v. Told, 780 P.2d 11 (Colo. App. 1989), aff'd, 800 P.2d 1320 (Colo. 1990).

V. AGREEMENT MADE UPON CONSIDERATION OF MARRIAGE.

Writing required for antenuptial agreement. Antenuptial agreements conveying lands are included in that class of contracts required by this section to be in writing and signed by the party to be charged therewith, as equity will not permit subsection (1)(c) to be made an instrument for the perpetration of a fraud. Moore v. Allen, 26 Colo. 197, 57 P. 698, 77 Am. St. R. 255 (1899).

Widow's violation of antenuptial contract manifested bad faith. Where an oral contract was entered into between a husband and wife before their marriage wherein it was agreed that their property rights should not be affected by the marriage, and subsequent to their marriage they executed a written agreement in which each waived and released all right to the property of the other, and where the husband left a will in which no provision was made for the widow who attempted to repudiate both contracts as void, her violation of the solemn contracts was a manifestation of bad faith and ought not to be tolerated. Remington v. Remington, 69 Colo. 206, 193 P. 550 (1920).

Where the trial court concluded, and it was undisputed, that the obligations at issue were not made upon consideration of the parties marriage, the oral agreement was removed from the statute of frauds provision under this section. In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).