The first exception cannot be sustained. The written agreement of the defendants was an original, and not a collateral promise; and the plaintiff, upon substantially performing the agreement on his part, with variations assented to by the defendants, might maintain this action on an account annexed.
The rest of the bill of exceptions was rightly disallowed by the presiding judge as not conformable to the truth. The report of the commissioner shows that, upon the question of waiver or variation of the terms of the written agreement, material evidence of the action of the inspector of buildings, and of the silence of one of the defendants when applied to for payment, was introduced at the trial, and not stated in the bill of exceptions presented to the judge.
Both parts of the case are covered by previous decisions. Cullen v. Sears, 112 Mass. 299. Arvilla v. Spaulding, 121 Mass. 505. Exceptions overruled.