
    Skinner and Bulkely, plaintiffs in error, vs. John Conant, defendant in error.
    Rutland,
    
      February, 1830.
    That auditors should report facts in the mode of a special verdict, and not report the evidence in detail.
    That defendant’s saying, “ if B employs you I will see, you paid,” is a collateral undertaking, and warrants no charge on book; and comes within the statute of frauds, requiring the promise to be in writing.
    Said Conant commenced his action on book account against Skinner and Bulkely, before a justice of the peace, and the action was appealed to the county court, and there committed to auditors, who made their report of a balance in favor of said Co-nant, which report was accepted, after a hearing upon exceptions filed by Skinner and Bulkely, and a judgement, thereon rendered by said county court at their term holden in said county, in April, 1829. With a view to reverse that judgement this writ of error was brought. The principal facts reported by the auditors, together with the accounts of the parties, are, that one Andrus was working the distillery of Skinner and Bulkely, and the plaintiff wanted employ ; and Skinner and Bulkely agreed, that, in ease Andrus would hire Conant to work in said distillery, they would see him paid; and that Andrus did hire Conant,. and he worked the number of days charged. Hence they found the balance they reported. The errors assigned embraced the same questions comprised in the exceptions to the report.
    
      Argument for plaintiffs in error.—X. The plaintiffs in error contend, that the undertaking by them to Conant, to “ see him, •paid if Audi us hired him,”, was not an original undertaking, but merely collateral, to answer for the debt of Andrus. See 1 Swiff s Big. 248.—1 Com. on Cont. 51, (Buckmyr vs. Bar-nail, reported in 1 Ld. Raym. 1085J 1 Com. Cont. 54-55, (Jones vs. Cooper—Matson, et al. vs. 'Wharam, reported in 2 Term Reports, 80, and Anderson vs. May-man, reported in 1 M. Bla. 120.J—2 Stark„ Ev. 595,
    By the authorities above cited, it is clear, that the engagement of Skinner and Bulkely was collateral only, and, therefore, could not be the subject of a charge on book ; that the rule has been long settled, that, if Andrus was at all liable to Conant, the engagement of the plaintiffs was collateral, and only a promise to pay if Andrus did not; that it was expressly so decided in the case of Buckmyr vs. Barnall, and in all the cases above cited.
    2. A mere right of action, such as a claim for damages, for a lort, or breach of contract, cannot be charged on book.—1 Swiff s Big. 582.—Nor can articles be charged on book, unless the right of charging existed at the. time of delivery. — 1 Swift’s Pig. 583.
    3, That no action whatever could be maintained against the pHhitiffs in error, by Conant, on the alleged undertaking, be-causQ ^ was only a promise to pay the debt of Andrus, and not in writing ; and, therefore, void by the statute of frauds. — Comp. Laws, 115 ; also the cases above cited.
    4. That the plaintiffs in error, having made provision with An-drus to do all the labour in the distillery, the promise by Skinner to Conant, (if any was made,) “ to see him, paid,” could not be the promise of the firm, but must have been the promise of Skinner alone, and, therefore, no action could be maintained thereon against the plaintiffs.
    5. That, from the records and proceedings of the county court,it does not appear that Conant, before the commencement of his action against the plaintiffs, gave them notice, that Andrus had hired him, nor of the amount of his claim for labour in the distillery : and the plaintiffs insist, that they could not be made liable, in any form of action, even if the contract had been in writing, without this previous notice.
    
      Argument for the defendant in error. — 1. It appears from the case, that the undertaking of Skinner and Bulkley to pay to Co-nant, was an original one. Andrus, as their agent, hired Co-nant, and they agreed to pay, and did, in part, pay. But, whether there was any undertaking at all, and what was the nature ofthat undertaking, were questions of fact, to be decided, exclusively, by the auditors. 1 Esp. N. P. 100, 101, 102. — 1 Salk. 27. — Esp. JV*. P. C. 121. — Puller’s JY. P. 280, 281. The defendants below having undertaking to pay Conant for whatever labor he should perform in the distillery, the latter had a right to keep his daily accountof his labor on his book,and recover it as such.
    2. The undertaking was by Skinner, for himself and partner 5 but whether it was so, or not, was a question of fact, for the auditors, only, to resolve.
    3. It necessarily results from the right of Conant to charge his labor on book from day to day, and to recover the same in an action on book account, — that he could sustain such action without notice to the other parly, that he had performed such labor. He, however, did give such notice, receive part of his pay, and the defendants below proposed to pay the remainder on settlement, though they afterwards refused.
   Hutchinson, J.

delivered the opinion of the Court. — On inspection of the record in this writ of error, we find the same protracted to an unreasonable length, by a totally useless detail of testimony. The county court would have done well to have required the auditors to amend their report, before acceptance, by expunging all the details, and retaining nothing but the copies of the accounts exhibited, and the facts they found proved with regard to each item, nearly in the form of a special verdict, adding which items they allow, and which they disallow. There is no necessity of their reciting upon what testimony they find facts, except when objections are raised to the kind of testimony; in which case, they should state the ground of objection, and their decision upon it. By the detail of testimony in this case, we learn that the agreement of Skinner and Bulkely to see Conant paid, was not in writing ; but a single assertion of that fact in the report would have presented it to the court in much better shape than the one exhibited.

The only point, that merits much consideration in deciding this writ of error, is, whether the agreement about paying Conant was original or collateral. If original, the labor is a proper matter of book charge, and no agreement in writing is necessary : if collateral, it cannot be recovered in the action on book ; and, if it could, the agreement must be proved by a writing. In this the counsel are agreed. The agreement reported is, to see Conant paid, if An'drus hired him ; adding that Andrus did hire him.— We can make nothing of this but a collateral agreement. The authorities concur in forcing this construction upon us; and our statute is copied from the English statute upon the same subject.

The allegation that Andrus hired Conant, imports, that it was primarily Andrus’1 business to run the still of Skinner and Bulk-ely, in such a sense that he was debtor to Conant; and the contract of Skinner and Bulkely that they would see him paid, means that they would pay him if Andrus did not.

If the auditors had found and reported, that Skinner and Bulk-ely had authorized Andrus to hire what extra help was wanted, at his descretion, and have the work charged to Skinner and Bulk-ely, that would have made a different case. Probably they could not have found that fact from the testimony they have recited} though the testimony of Skinner himself squints a little that way, where he says he told Andrus, if he hired any help, he must agree that payment be made in goods at their store. But, without such a fact, not reported by the auditors, there is no way that Conant can recover of the said Skinner and Bulkely, consistently with law.

The judgement of the county court is reversed ; and it now remains, that this Court proceed and render such a judgment as the county court ought to have rendered.

Clark and Collamore, for plaintiffs in error.

JV. Harmon, for defendant in error.

^ *s manifest, though the auditors have not reported it in terms, that the account of Skinner and Bulkely is for payment upon orders to go in part payment for Conanfs work ; and this cannot ^e recovered back, but must still stand in payment thus far. If, therefore, a final judgment be now rendered in the original action,it must be for the original defendants to recover their costs. But, if Conant thinks it probable he can convince the auditors of the fact, that Andrus was authorised by Skinner and Bulkely, to hire what little extra help he wanted, and contract for them to pay in goods at their store, as the auditors have not definitely reported upon that fact, we are willing to send it out to the auditors from this Court, for them to report upon that fact merely, as they shall find the same to be. That is, report, either that Andrus was, or that he was not, thus authorized to contract.

On the request of Conanfs counsel the action is again submitted to auditors] to report to this Court at the next term.  