The only question that can arise in the case is, whether there was evidence of a contract between the plain» . r tin and the present defendant, to perform the services for which J . *“IS su^ 1S brought. From the evidence* it appears that a written contract had been entered into between the plaintiff and the defendant, together with his father Jacob Harsen, for the performance of the same work; and that, after some part of it was done, the plaintiffs became dissatisfied with their contract, and determined to abandon it. The defendant then agreed, if they would go on and complete the work, he would pay them by the day for such service, and the materials found, without reference to the written contract.
*331This is the allegation on the part of the plaintiITh, and which the evidence will very fairly support. If the contract is wade out, there can be no reason why it should not be considered I~inding on the defendant. By the former contract, the plaintiffs subjected themselves to a certain penalty for the non fulfilxnent, and if they chose to incur this penalty, they had a right to do so, and notice of such intention was given to the defendant, upon which he entered into the new arrangement. Here `was a sufficient consideration for this promise; all payments made on the former contract have been allowed, and perfe'ct j~ustice appears to have been done by the referees, and no rules or principles of law have been infringed. The motion to set aside the report~ therefore, ought to be denied.
Motion denied.