This is an action against Herrick and Morrill. The declaration alleges that it is for materials furnished and labor performed for the defendant Herrick, (according to the account annexed,) “ and the payment of said sum having been guaranteed to the plaintiffs by the defendant Merrill before the furnishing of the materials or labor.” A second count alleges that the guaranty was at a later period. The defendant Merrill sets up the statute of frauds.
It appears by the report that the contract was originally made between the plaintiffs and Herrick. The work was to be done in the erection of houses for Merrill. In the progress of the work, Merrill made none but oral promises to make any payments for the work and materials, the liability of Herrick was preserved, and the declaration is against both. The promise of the defendant Merrill was to answer for the- debt of another, and is within
Judgment for the defendant Merrill.