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. (a)
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.