
    Robert O. Fuller & another vs. John S. Miller & another.
    To maintain assumpsit for goods sold and delivered against two defendants, the plaintiff must show a joint promise by the defendants.
    Proof that the goods were delivered upon the credit of one of the defendants as original promisor is not sufficient to bind both.
    On Exceptions to the ruling of Goddard, J., of the superior court in and for the county of Cumberland.
    The action was tried by the judge without the intervention of a jury, subject to exceptions.
    Before the trial the defendant’s attorney withdrew his appearance for B. B. Miller, one of the defendants, who was thereupon defaulted. The exceptions recite:
    “ It was proved that the plaintiffs, on Sept. 30, 1868, by their agent, Elliott, sold the quantity of tin mentioned in the writ, of the value of $375.07 ; that it was received on the next day by B. B. Miller, then a tin-roofer, and by him used; and that early in November payment was demanded of B. B. Miller, but nothing paid.
    “ The judge found', as matter of fact, that it was also proved that the defendant, John S. Miller, father of B. B. Miller, being in the latter’s shop on Sept. 30, 1868, promised the plaintiff’s agent, then present, that if they would send the tin to B. B. Miller, he, John S. Miller, would see them paid in thirty days; and that after the expiration of the thirty days after said tin had been delivered to B. B. Miller upon the strength of said promise, the plaintiffs first demanded payment of B. B. Miller, and soon after and before suit, of John S. Miller.
    “ And, further, that the tin was delivered to B. B. Miller on the credit of John S. Miller as an original promisor.”
    The judge ruled as matter of law that,
    I. The defendant not having pleaded the statute of frauds, cannot avail himself thereof in defense;
    II. That, independent of the pleadings, the foregoing promise of John S. Miller is not within the statute of frauds; and
    III. That John S. Miller is liable to the plaintiffs for the price of the tin and interest from the date of the writ.
    To all the rulings in law the defendant alleged "exceptions.
    
      J. 0. Donnell, for the defendant, J. S. Miller.
    
      Davis Drummond, for the plaintiffs.
   Appleton, C. J.

This is an action of assumpsit for goods sold and delivered the defendants. To maintain it the plaintiffs must show a joint promise.

The presiding justice found that the goods were sold and delivered upon the credit of John S. Miller as original promisor. He does not find a joint promise nor facts from which a joint promise could be inferred. Indeed, the finding that the goods were delivered upon the credit of John S. Miller as original promisor, impliedly negatives liability on the part of any one else. Under the facts as found, John S. Miller alone is liable. Dxeeptions sustained.

Cutting, Kent, Walton, and Dickerson, JJ., concurred.  