
    Thomas Doyle, App’lt, v. The Rector, etc., of Trinity Church, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed May 24, 1892.)
    
    Contract—Reparation op injuries.
    Plaintiffs assignor constructed a well for defendant. After it was about completed defendant authorized a third party who was not an agent of the contractor, but was believed to be so by defendant, to use torpedoes to improve the well, but they resulted in an injury to it. Defendant refused to pay the contract price until these injuries were repaired and finally an agreement was made by which the contractor was to make the repairs with tubing to be furnished by defendant; the latter claiming that the contractor should do the work at his own expense, to which he did not reply. Held, that there was no duress, and that while the contractor was not obliged to do the work, yet having done so under these circumstances, apparently acquiescing in the claim of defendant, he could not thereafter compel payment for it.
    Appeal from judgment of the supreme court, general term, ■second department, affirming judgment in favor of defendant.
    
      L. A. Fuller, for app’lt; S. P. Nash, for resp’t.
    
      
       Affirming 39 St. Rep., 888.
    
   Earl, Ch. J.

The record in this case does .not contain the evidence given upon the trial, and therefore the findings of fact by the referee must be taken as undisputed and true.

Jesse Button, plaintiff’s assignor, made a contract with the defendant to sink an artesian well. He fully performed his contract and there was a ■ balance due him for his work of about $450.

After Button had completed his contract, at the suggestion of A. E. Foth, the defendant made a contract with Mr. Siegel to explode a torpedo in the well to improve the flow of water, for which it agreed to pay him twenty-five dollars. Foth and Siegel both acted in good faith, and they and it believed that the explosion would improve the well. ■ Siegel exploded the torpedo and it unexpectedly shattered and injured the well. Button was not consulted about the explosion, had nothing to do with it and knew nothing about it until after the injury was done. Foth was in no way the agent of Button and did not act for him in making the suggestion of the torpedo, but acted for Siegel. The defendant, however, believed that in suggesting the torpedo he acted for Button.

Subsequently Button demanded the payment of .the balance due him for sinking the well, and it refused to pay him unless he would repair the well, and threatened if he did not-repair it that it would do so and deduct the expense thereof from the amount due him. He protested against this and denied his responsibility for the explosion and injury. He then suggested a mode for repairing the well which required the use of additional iron tubing It was finally agreed between him and it, that if it would supply the new iron tubes required, he would furnish the labor for repairing the consequences of the explosion, it claiming he should furnish the work at his own expense. He did not say that he would do the work without pay. But he went on under the arrangement and did the work without any other or further agreement, at an expense of $600, using the tubes provided by the defendant for that purpose. After he had finished the work of repairing, he demanded payment to him of the $600, besides a balance of $134.77, due him upon his original contract. The defendant refused to pay the $600, and then he assigned his claims to the plaintiff, who brough this action to recover $734.77, composed of the two items above mentioned. He recovered judgment for the $134.77, and upon this appeal claims that upon the facts proved, which have been substantially stated, he should also have recovered the $600.

The defendant seems to have had no good reason for requiring Button to repair the well. He had fully performed his contract for sinking the well, and had nothing to do with it, and was in no way responsible for the injury to the well from the explosion. The torpedo was exploded under an independent contract made-by the defendant with Siegel. It is wholly immaterial whether or not Both appeared to be his agent or was in fact his agent. Even if Button had in person suggested the explosion to the defendant, and if upon his suggestion or friendly advice given in good faith it had entered into the contract with Siegel, there is no rule or principle of law which would hold him in any way responsible for the performance of that contract by Siegel, or for the consequences of the explosion. The defendant, therefore,, had no shadow of claim against Button for the injury to the well,, and so far as appears no fair pretext for requiring him to repair the well. It was bound to pay him the $450, and if he had agreed, for the purpose of inducing it to pay him what it owed him, to* go on and do the work of repairing at his own expense, it could not have enforced that agreement against him if he had subsequently refused to perform it.

It would have been absolutely without consideration. But he accepted the terms imposed by it, and did the work after he was. informed by it that it would, furnish the iron tubes and that he must do the work at his own expensa By acquiescing in these-terms and voluntarily doing the work, he must be held in law to-have agreed to give and to have given his work to the defendant. So long as the contract was executory he was not' bound, by it But he could make a voluntary donation of his work as he could of a chattel, and after the donation was fully executed it was complete and irrevocable. Having agreed to do the work for nothing he could not after it was performed claim payment therefor. The defendant believing Button was1 under somó obligation to repair the well, and acting in good faith, told him that it would furnish the tubes and he must make the repairs at his own expense. He could not then do the work, apparently acquiescing in the claim of the defendant, and still hold it liable for the work by secretly intending all the time to charge it for the work. He was bound to do the work upon the terms proposed by it or not to do it at all He was at least bound to tell the defendant that if he did the work he would do it at its expense, and not otherwise. This is not like the case of one doing work for another merely upon his request, or even without any request or arrangement, where the one for whom the work is rendered acquiesces and receives the benefit of it But this work was done under the arrangement that he was to do it at his own expense. He was not compelled to do the work. A gift can undoubtedly be repudiated and reclaimed when it has been obtained by duress. He was under no legal duress or compulsion. The defendant simply refused to pay him what it undoubtedly owed him unless he would do the work. The courts were open to him as to every other citizen. He could have compelled payment of his claim by suit, and no reason is perceived'why he did not compel payment in that way. The defendant did not deprive or threaten to deprive him of access to the courts, or to bar his way to the enforcement of his rights by legal process. Amere refusal to pay a debt, without more, certainly does not constitute legal duress which will avoid a consummated gift. If one agrees to work for another for nothing, he may afterward refuse to work. But if he voluntarily performs his promise and does the work he cannot afterward compel payment for it.

So upon the findings of the referee we see no reason to doubt that the judgment below is free from error, and that it should be affirmed, with costs.

All concur.  