#### WILLIS PIPKIN, ADM’R. OF JESSE PIPKIN, vs. WM. ROBINSON.

Where A agrees to pay to a mechanic §100 of the deficiency in a public fund for building a school-house, provided eight other responsible persons sign the agreement, and eight other persons do sign the contract, after the work has been received by the trustees who made the contract with the mechanic, A cannot raise the question whether the work was done according to the contract, but must pay the $100.

Action of assumpsit, tried before Person, Judge, at the Pali Term, 1855, of Wayne Superior Court.

The plaintiff declared on the following- written agreement: “Whereas, it lias been found expedient to build a school-’ house at Goldsborough, suitable to the increasing educational demands of our flourishing town and county, and whereas $2500 is required to carry said school-house to completion, $1600 of which have been collected, leaving a balance of $900 to be secured by future subscription; and whereas a contract has been entered into with Jesse Pipkin to build and complete said school-house for the aforesaid sum of $2500 : Now, therefore, fully believing that the remaining $900 can be easily collected from the friends of the enterprise in Wayne and the adjoining counties, who have not yet subscribed any thing, and in order to hasten it to a speedy and successful completion, we, whose names are hereunto subscribed, do become pledged to Jesse Pipkin for the said balance of $900, to be paid equally by each of us; provided always, that nine responsible persons become so pledged. And we further agree, to make good any balance that may fail to be subscribed, to secure said amount of $900; and it is well understood that this obligation is not to be used, nor will it be regarded as binding, unless subscribed by nine responsible persons as aforesaid, dated,' &c;” which paper, plaintiff proved, was signed by the defendant and eight responsible persons, each of whom had paid $100, except the defendant.

There was evidence that Jesse Pipkin put up the house, but did not paint it, and that the defendant, Robinson, shortly *153afterwards, by tbe authority of the trustees, went into the possession of it, and used it as a school-house, and also that he had it painted.

It was further in evidence, that Pipkin said he was to complete the building in every particular.

The Court charged the jury that the plaintiff, in order to entitle him to recover in this action, must satisfy them that he had built the school-house according to his contract, and left it to the jury, whether from all the evidence, the contract required him to paint it. If it dipt, then he could not recover. Defendant excepted to this charge.

Verdict and judgment for the plaintiff.

Dortch, for plaintiff.

W. A. Wright, for defendant.

Nash, C. J.

We are somewhat at a loss to perceive upon ■what principle of láw, the defendant refuses to pay the money demanded. The contract for building the school-house, was not made by him with the intestate, but by the trustees; whether, therefore, it was complete in all its parts, was a question in which he had no interest whatever. If the intestate failed to comply with his contract, he was answerable to the trustees, and not to Mr. Eobinson. . The building was to cost $2500. Of this sum, $1600 was raised by subscription. To secure' the balance to the intestate, nine individuals entered into a written contract with him, to pay him $900, each one agreeing to pay $100, upon condition that nine responsible persons sign it. Nine did sign it, of whom the defendant was one. The house was built, and taken possession of by the trustees. Each one who executed the contract has paid his one hundred dollars, except defendant. The condition upon which he entered into the contract was complied with, viz: that eight others should execute the paper with him. We see no reason for disturbing the judgment below.

Per Curiam.

Judgment affirmed.