
    Jones, for the use of Samuel Smoot, v. George A. Smoot and John Gozler.
    A third person rvho, at the reqrrest of a contractor, executes the contract, cannot maintain an action against the contractor upon that contract.
    This was a special aetioii upon the case, on a written contract executed by the defendant G. A. Smoot, as principal, and the other defendant as surety, to deliver fifty cords of wood to the plaintiff, Jones. George A. Smoot being unable to comply with the contract within the time limited, Samuel Smoot, at the request of George A. Smoot and the plaintiff, Jones, without the knowledge of Gozler, delivered the wood and took an assignment of the contract; and gave George A. Smoot six months to return him the wood.
    
      Mr. Key, for the defendant,
    contended that the contract was discharged by the delivery of the wood by Samuel Smoot; and that if it was not, yet the- plaintiff, by giving six months indulgence to G. A. Smoot without the consent of Gozler, had discharged the latter from his liability.
   The Court

(Morsell, J., contra,)

instructed the jury that if they should be'of opinion from the evidence that the wood was delivered by Samuel Smoot to Jones, at the request of George A. Smoot, and in compliance with the contract between Jones and the defendants, the plaintiff could not recover in that action.  