Mattoon v. Barnes.

of the estate of Messer against the firm, and that he should be paid $1500 out of the assets of the firm for his services and expenses and payments in behalf of the firm, and that if the firm. should fail to have assets sufficient for that purpose, Barnes and Phelps should pay him for making the settlement $1000 of their own money; and that then Barnes and he made and executed the paper above set forth, and that he had ever since retained both papers, and he produced them in court together as evidence of a binding contract between the parties.

The court excluded the evidence on the ground that the plaintiff by parol could not control or vary the terms of the agreement, and ruled that it was not binding upon Barnes or his representatives because it did not purport to be signed by Phelps, and that it could not be shown to have been executed by Phelps, by parol evidence, and directed a verdict for the defendant. The plaintiff excepted.

M. P. Knowlton, (G. M. Stearns with him,) for the plaintiff. A. L. Soule, (E. H. Lathrop with him,) for the representatives of James Barnes.

MORTON, J. In considering this case we must assume that all the facts which the plaintiff offered to prove are true. It appears that the plaintiff and James Barnes and Willis Phelps had been partners. After the partnership was dissolved and its affairs partially adjusted, the estate of Messer had an unsettled claim against the firm, and the plaintiff had a private claim against the estate of Messer. The three partners had some conversation about the settlement of this claim, but before any agreement on the subject was made Phelps was obliged to go West, and before going he orally authorized Barnes and the plaintiff to make for him and in his behalf, and for themselves any arrangement they should think best regarding the matter. Before leaving, Phelps signed a letter to the plaintiff in which he says, " Any arrangement you and Gen. Barnes make about the matter we were talking about will be satisfactory to me."

Soon after Phelps left, Barnes and the plaintiff agreed that the plaintiff should settle the Messer claim, that he should be paid therefor out of the assets of the firm $1500, and that, if the 80

VOL. XVI.

Mattoon v. Barnes.

assets should be insufficient for that purpose, the said Barnes and Phelps should pay the plaintiff $1000 out of their own moneys, and thereupon executed the paper dated November 25, 1867. This agreement was signed by Barnes and Mattoon, but was never signed by Phelps, and the executors of Barnes now contend that it cannot be enforced against his estate because it was not signed by Phelps.

The plaintiff has performed his part of the agreement, his claim is just and equitable, the objection to it is purely technical, and ought not to prevail unless we find in the established rules of law insuperable difficulties in the way of the plaintiff's right to In our opinion there are no such difficulties.

recover.

The case does not turn upon the question whether Phelps is bound by the written agreement signed by Barnes and Mattoon. He does not contest the suit, but admits that by his contract with the plaintiff he is liable according to the terms set out in the agreement. If it be assumed that Phelps is not bound by the agreement itself, the question is whether that fact discharges and releases Barnes from his promises contained therein.

There is a class of cases in which it has been held that where an instrument has been executed only by a part of the parties between whom it purports to be made, it is not binding upon those who have executed it. Bean v. Parker, 17 Mass. 591. Wood v. Washburn, 2 Pick. 24. Howe v. Peabody, 2 Gray, 556. Russell v. Annable, 109 Mass. 72. Most, if not all, of the cases of this class, are cases where the parties executing the instrument would have a remedy, by way of indemnity or contribution, against the other parties named, which remedy is lost by the failure of such other parties to execute the instrument. The reasons for holding the instrument void are that it was intended that all the parties should execute it, that each executes it upon the implied condition that it is to be executed by the others, and therefore that until executed by all it is inchoate and incomplete, and never takes effect as a valid contract.

On the other hand, where these reasons do not apply, it is held that a party who signs and delivers an instrument is bound by the obligations he therein assumes, although it is not executed by

McGrath v. Merwin.

all the parties named in it. Adams v. Bean, 12 Mass. 137. Herrick v. Johnson, 11 Met. 502. In the case at bar, the estate of Barnes does not lose any right or remedy against Phelps by reason of the fact that he did not sign the agreement. He admits that he is jointly liable for the amount named in it, and the estate of Barnes has the same remedy for a contribution against him as if he had signed the agreement in form. Upon this point the case of Herrick v. Johnson goes farther than the case at bar.

Cutter v. Whittemore, 10 Mass. 442. Warring v. Williams, 8 Pick. 322. 26. Yale v. Wheelock, 109 Mass.

In the case at bar, it also appears that Barnes executed and delivered the agreement with a full knowledge of all the facts. Both parties knew that Phelps was absent; there was no condition, express or implied, that Phelps was to sign it; neither party intended or understood that it should be deemed inchoate or incomplete; but Barnes delivered it in its present form "as and for a binding contract between the parties." We are of opinion that, under the circumstances of this case, Barnes was bound by his execution and delivery of this contract, and that the learned judge who presided at the trial erred in directing a verdict for the defendant. Exceptions sustained.

TIMOTHY MCGRATH vs. JAMES J. MERWIN & another.

The clearing out of a wheel-pit on the Lord's day, for the purpose of preventing the stoppage, on a week day, of mills which employed many hands, is not a work of necessity or charity under Gen. Sts. c. 84, § 1.

The plaintiff gratuitously and as a matter of kindness assisted the defendants in clearing out a wheel-pit on the Lord's day, for the purpose of preventing the stoppage, on a week day, of the defendants' mills. In an action for personal damage caused by the defendants' negligence, Held, that the fact that the plaintiff worked gratuitously and as a matter of kindness, did not make his work a work of charity under Gen. Sts. c. 84, § 1. The plaintiff sustained personal damage from the negligence of the defendants while assisting them in their work on the Lord's day in an action to recover for such damage, Held, that the plaintiff's illegal act in working upon the Lord's day was so inseparably connected with the cause of action as to prevent his maintaining the suit.

TORT for personal damage caused by the defendants' negligence.

McGrath v. Merwin.

At the trial in the Superior Court, the plaintiff offered to prove that on Sunday, June 24, 1871, while he was at work in a wheelpit, used by the defendants, in connection with the machinery of extensive paper mills, and while he was in the exercise of due care he was hurt, by the negligence and carelessness of the defendants in setting the machinery and wheel in motion; that he was engaged in the work at the request of the defendants, gratuitously, and as a matter of kindness to them, it being unconnected with his ordinary work, and of no interest to him in any way, he not being an employee of the defendants; that the work he was doing consisted in digging the sand from the wheel-pit so as to enable a pump to be used to clear it of water, which frequently settled into the pit so as to impede the action of the wheel and of the machinery of the defendants' mills, it being necessary, whenever such impediments occurred, for the defendants to stop their work at a very large loss, and remove the water; that the defendants were doing a large business, which employed many hands and required the running of their mills from twelve o'clock Monday morning to twelve o'clock Saturday night, and that the work done on this occasion would obviate the necessity of stopping the machinery in future; that the defendants were present on this occasion with the plaintiff, directing how the work should be done, and that their meeting was by the previous arrangement of the parties.

Upon this offer of proof, Bacon, J., ruled that the action could not be maintained, and by consent of parties, before verdict, reported the questions of law to this court. If the ruling was correct, the plaintiff is to become nonsuit; otherwise, the case is to stand for trial.

E. B. Gillett & H. B. Stevens, for the plaintiff.

G. M. Stearns, (W. B. C. Pearsons & M. P. Knowlton with him,) for the defendants.

MORTON, J. The statute makes it unlawful to do "any manner of labor, business or work, except works of necessity and charity," on the Lord's day. Gen. Sts. c. 84, § 1. The plaintiff's offer of proof discloses that he was at work in the defendants wheel pit, digging out the sand so as to enable a pump to be used

McGrath v. Merwin.

to clear it of water which frequently settled into the pit, so as to impede the action of the wheel, and that while so at work he was injured by the carelessness of the defendants in setting the wheel in motion. The only reason for doing the work on the Lord's day was, that the defendants were doing a large business, employing many hands, and "the work done on the occasion would obviate the necessity of stopping the machinery in future." The whole import of this is that it was more convenient and profitable to repair the wheel-pit on the Lord's day than it would be to do it on any secular day. This does not make it a work of necessity or charity within the exception of the statute. Commonwealth v. Sampson, 97 Mass. 407. Commonwealth v. Josselyn, 97 Mass. 411. The fact that the plaintiff was doing the work gratui tously, at the request of the defendants, does not take the case out of the letter or the spirit of the statute.

The decisions in this Commonwealth are numerous and uniform to the effect that the plaintiff, being engaged in a violation of law, cannot recover, if his own illegal act was an essential element of his case as disclosed upon all the evidence. The cases upon this subject are reviewed in Myers v. Meinrath, 101 Mass. 366; Hall v. Corcoran, 107 Mass. 251, and Cranson v. Goss, 107 Mass. 439.

The rules of law, as applied to actions of tort for injuries, like the case at bar, are, that if the illegal act of the plaintiff contributed to his injury, he cannot recover; but though the plaintiff at the time of the injury was acting in violation of law, if his illegal act did not contribute to the injury but was independent of it, he is not precluded thereby from recovering. Of the latter class are the cases, cited by the plaintiff, of Spofford v. Harlow, 3 Allen, 176; Steele v. Burkhardt, 104 Mass. 59, and Kearns v. Sowden, 104 Mass. 63. But the case at bar falls within the first named class of cases. The illegal act of the plaintiff was inseparably connected with the cause of action and contributed to his injury. The difference between the two rules may be illustrated by supposing the plaintiff, while engaged in his work, to have been assaulted by a stranger; he could maintain an action therefor, because his violation of law had no connection with the trespass.