28-11-105. When guaranty considered original obligation and need not be in writing. A promise to answer for the obligation of another in any of the following cases is deemed an original obligation of the promisor and need not be in writing:
     (1) where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise or by one who has received a discharge from an obligation, in whole or in part, in consideration of such promise;
     (2) where the creditor parts with value or enters into an obligation in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor and the person in whose behalf it is made his surety;
     (3) where the promise, being for an antecedent obligation of another, is made upon a consideration:
     (a) that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor;
     (b) that the party receiving it releases the property of another from a levy; or
     (c) beneficial to the promisor, whether moving from either party to the antecedent obligation or from another person;
     (4) where a factor undertakes to sell merchandise for a commission and guarantee the sale;
     (5) where the holder of an instrument for the payment of money upon which a third person is or may become liable to him transfers it in payment of a precedent debt of his own or for a new consideration and in connection with such transfer enters into a promise respecting such instrument.

     History: En. Sec. 3612, Civ. C. 1895; re-en. Sec. 5660, Rev. C. 1907; re-en. Sec. 8175, R.C.M. 1921; Cal. Civ. C. Sec. 2794; Field Civ. C. Sec. 1538; re-en. Sec. 8175, R.C.M. 1935; R.C.M. 1947, 30-105.