
    * Nathaniel Faxon versus Shubael Mansfield and Amos Holbrook, his Trustee.
    If a tradesman, having contracted to perform a certain undertaking, voluntarily leaves it unfinished, he can have no action against his employer for the part performed.
    Amos Holbrook, upon his examination, disclosed the following facts, viz.: On the 21st day of May, A. D. 1803, he made a contract in writing with Mansfield, the principal defendant, by which the latter undertook to erect and finish a barn for Holbrook by the 1st of August then next, at which time he was to receive of H. 400 dollars, in full compensation. At the time of the service of the writ in this case he had performed a part of the undertaking, and had received sundry sums of money towards his compensation. Afterwards he left the work unfinished without the consent, and contrary to the wishes, of H, who was obliged to procure other workmen at his own expense, and with considerable trouble, to compíete the same. That these expenses and trouble, together with the damage sustained by injury to his hay, amounted to more, in the opinion of if., than the balance which would have been due to ill. had he fulfilled his undertaking; but the money actually paid to M., on account of the contract, did not amount to the proportion of the labor performed by M. before he quitted his undertaking.
    The question for the decision of the Court was whether, on these facts, Holbrook was the trustee of Mansfield.
    
    
      T. Williams, for the plaintiff,
    contended that, as the contract between these parties was not under seal, Holbrook was liable to Mansfield for so much of the whole money he had contracted to pay as the proportion of the work performed bore to the whole work contracted to be performed, deducting the amount of payments made on that account. If it were not so, tradesmen would have it in their power, by leaving any minute part of their undertaking unfinished, to prevent the operation of the statute respecting absconding debtors upon the credits in the nands of their employers, and thus evade the payment of their honest debts.
    
      J. S. Williams, on the other side, was stopped by the Court, .whose opinion was delivered by
   * Parsons, C. J.

It appears, from the answers to the [ * 148 ] interrogatories, that there is no ground to charge Holbrook as the trustee of Mansfield, unless the latter has a legal cause of action against the former for his work done under the contract stated in the answer. From the terms of the contract, Mansfield was not entitled to receive any thing from Holbrook until the contract was executed on the part of Mansfield.

Mansfield did not fulfil his contract; his failure did not arise from inevitable accident, but from his own neglect, for he voluntarily left the work unfinished. On these facts he can maintain no action, either on his contract, or on a quantum meruit, against Holbrook, who must be discharged.

Trustee discharged. 
      
      
         Stark vs. Parker, 2 Pick. 267. — Taft vs. Montague, 14 Mass. Rep. 282. — Seymour vs. Bennett, 14 Mass. Rep. 266; and vide Hayward vs. Leonard, 7 Pick. 181.— Hill vs. Green, 4 Pick. 114. — Moses vs. Stevens, 2 Pick. 332.
     