The jury have found, under the instructions given to them, that Tupper, with the. consent of the defendant, sold to Tice his (Tupper’s) interest in the written contract between the defendant and Skinner and Tupper, and that Skinner and Tice agreed with the defendant to manufacture for him the number of bricks mentioned in that written contract, and on the terms therein mentioned; that Tupper, with the defendant’s consent, left the work of making the bricks, and that Skinner and Tice proceeded to make them on those terms.
Upon these facts, this action is rightly brought in the names of Skinner and Tice. It is not brought for a breach of the written contract, but for the breach of a valid oral contract between the defendant and these plaintiffs, of which the terms are the same as were the terms of the written contract between the defendant and Skinner and Tupper. No writing is necessary to the validity of an agreement between A. and B. that A. will perform services for B. on the same terms upon which he has agreed with C., in writing, to perform like services for him, unless his agreement with C. is within the statute of frauds.
The testimony of Knox was properly excluded. It was offered for the purpose of supporting a set-off, and was not admissible under the defendant’s answer. Exceptions overruled.