Contract against Linus M. Child and H. B. Crandall, on an account annexed, for a quantity of bricks sold to the defendants. Trial in the Superior Court, without a jury, before Bacon, J., who found for the plaintiff. The defendants tendered a bill of exceptions in substance as follows :

It appeared at the trial that one Silva went to the plaintiff to purchase some bricks to build two houses ; that the prices and conditions were stated and agreed on, but that the plaintiff refused to trust Silva, as he did not consider him good, but required some guaranty for the payment; that afterwards, on the same day, Silva brought him the following written agreement signed by the defendants : “ Boston, December 7, 1874. Mr. E. H. Glidden. We will pay you for eighty-seven thousand light hard bricks, and eighty-eight thousand hard bricks, to be delivered to Manuel Silva, at the rate of 6.25 dollars per thousand for the light hard, and 8.25 dollars per thousand for the hard, in thirty days after delivery.”

The defendants contended that tne plaintiff could not maintain his action on the account, but should have sued on the agreement.

The plaintiff testified that after the contract had been signed he met the defendant Crandall, who requested that there should be delivered more of the bricks at 8J per thousand, and less of those at 6¿ per thousand, and he agreed with him so to do; that afterwards the plaintiff rendered a bill to Silva for a portion of the bricks, (he, said Silva, being the contractor who was building the houses for the defendants,) and requested the defendants to pay the same; that upon that bill it appeared that there were charged to Silva more than the number of hard bricks called for in the written agreement; that he went to the office of the defendant Child with the bill, and he gave him a check for half the amount stated on the bill, and then went to the defendant Crandall’s office and took his note for the other half of the same, and that nothing was said to or by Child about the excess of the hard bricks upon the bill over the number named in the written agreement.

The defendant Crandall testified that Child and he had made a contract with Silva to build certain houses for a specific sum, upon land owned by them jointly; that at Silva’s request he went with him to Glidden, and was informed that Glidden would not trust Silva for his pay, and agreed to furnish the written agreement for the payment of the sum, which he did; that he never waived or changed that agreement, or asked for more of the higher cost bricks mentioned in the agreement; that he did know that more than the whole amount of the higher cost bricks had been furnished to Silva when the payment was made, and that they were on the bill to Silva.

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