the doctrine of criminal responsibility for the act of another quite too far to convict him by reason of an honest mistake on the part of his clerk, provided the jury should find that the master sincerely and honestly intended that his instructions should be followed in good faith, and that he was not negligent or careless in the selection of his clerks, or in the regulations and precautions which he prescribed for their guidance: See Mullins v. Collins, L. R. 9 Q. B. 292, per Quain, J., and also per Blackburn, J.

The testimony of Palmer as to the number of sales of intoxicating liquors registered on the defendant's books within a fortnight of the alleged sale was competent to be considered, as bearing upon the question of the reasonableness of the precautions taken by the defendant to prevent sales to minors. Exceptions sustained.

MASTER AND SERVANT-CRIMINAL LIABILITY OF MASTER FOR ACTS OF SERVANT. — A master is not punishable criminally for the offenses of his servant, unless they were committed by his command or with his assent: Hipp v. State, 2 Blackf. 149; 33 Am. Dec. 463; Golden v. Newbrand, 52 Iowa, 59; 35 Am. Rep. 257; Commonwealth v. Nichols, 10 Met. 259; 43 Am. Dec. 432, and note. A general authority by an employer to his clerk to sell unlawfully will render him answerable criminally for any sale in pursuance of such authority: Kinnebrew v. State, 80 Ga. 232.

HOWARD v. CITY OF WORCESTER.

[153 MASSACHUSETTS, 426.]

MUNICIPAL CORPORATION IS NOT ANSWERABLE FOR THE NEGLIGENT ACT OF ITS SERVANT while engaged in excavating for the foundation of a school-house, though such negligence caused an injury to a person on an adjacent highway not within the limits of the school-house lot. MUNICIPAL CORPORATION IS NOT ANSWERABLE FOR THE NEGLIGENCE OF ITS SERVANTS while they are engaged in a work purely for the benefit of the public.

ACTION of tort to recover compensation for injuries suffered by plaintiff from the negligence of defendant's servant in blasting rock while excavating for the foundation of a schoolhouse. The blast from which the injury was suffered was done under a contract between defendant and one Kenney and with the knowledge of the servant. The negligence complained of consisted in the omission of Kenney to give any notice of the blast to plaintiff, who was, in the exercise of due care, traveling along the public highway near the school

house lot. The trial judge ruled that the plaintiff was not entitled to recover, and he excepted.

F. P. Goulding, for the defendant.

F. A. Gaskill and E. H. Vaughan, for the plaintiff.

C. ALLEN, J. The city contends, that even assuming that Kenney was its servant in such a sense that ordinarily it might be responsible for his acts or his negligence, it is nevertheless exempt from responsibility to the plaintiff in the present case by reason of the nature of the work which it was carrying on, namely, the construction of a school-house for public use.

It was held in the familiar case of Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332, that a city is not responsible in damages to a child attending a public school in a school-house provided by the city, under the duty imposed upon it by general laws, for an injury sustained by the child by reason of the unsafe condition of a staircase in the building. In Bigelow v. Randolph, 14 Gray, 541, a similar doctrine was applied where a scholar received an injury from a dangerous excavation in the school-house yard. The doctrine was reiterated in Sullivan v. Boston, 126 Mass. 540. It has also been applied to other public grounds, like Boston Common: Oliver v. Worcester, 102 Mass. 489; 3 Am. Rep. 485; Steele v. Boston, 128 Mass. 583; Clark v. Waltham, 128 Mass. 567; Veale v. Boston, 135 Mass. 187. On the same principle, a city was declared to be exempt from responsibility for a personal injury received in consequence of the defective condition of a public hospital: Benton v. Boston City Hospital, 140 Mass. 13; 54 Am. Rep. 436. In other states a similar rule of exemption has been adopted in reference to school-houses and other public buildings maintained solely for public use and service: Wixon v. Newport, 13 R. I. 454, 43 Am. Rep. 35, school-house; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302, town-house; Hamilton Commissioners v. Mighels, 7 Ohio St. 109, courthouse; Freeholders of Sussex v. Strader, 18 N. J. L. 108, 121, 35 Am. Dec. 530, dictum of Hornblower, C. J., as to courthouses and jails.

The principle on which this exemption from responsibility rests is, that in the various instances referred to, the building was erected or the grounds were prepared solely for the public use, and with a sole view to the general benefit, and under the

requirement or authority of general laws. In such cases, in the absence of any statute which directly or by implication gives a private remedy, no action lies in favor of a person who has received an injury in consequence of a negligent or defective performance of the public service.

The cases heretofore cited relate to injuries received after the completion of the work. It makes no difference, however, if the injury is caused by a negligent act done in the direct performance of the service: Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87; 6 Am. Rep. 196; Tindley v. Salem, 137 Mass. 171; 50 Am. Rep. 289; Lincoln v. Boston, 148 Mass. 578; 12 Am. St. Rep. 601.

The plaintiff seeks to establish a distinction, on the ground that her injury was received outside of the limits of the public work, relying on an expression in the judgment in Hill v. Boston, above cited, at page 358, and on the various decisions. where cities and towns have been held responsible for injuries caused by or in the course of the construction of roads and bridges by blasting rocks, setting back water, etc.; for example, Lawrence v. Fairhaven, 5 Gray, 110; Deane v. Randolph, 132 Mass. 475; and Waldron v. Haverhill, 143 Mass. 582. These cases, however, rest on grounds which take them out of the general rule, and in the last resort it must probably be considered that, taking all the statutes together which relate to the construction of roads and bridges, it is to be inferred that the legislature intended to recognize the existence of a liability for the consequences of negligence in the performance of the work.

In the present case, the service in which the city was engaged was purely for the benefit of the public, and we think the case falls within the general rule which exonerates it from responsibility for the consequences of its servant's negligence. The servant himself may be responsible; the city is exempt. See also Neff v. Wellesley, 148 Mass. 487; Curran v. Boston, 151 Mass. 505; 21 Am. St. Rep. 465; Bates v. Westborough, 151 Mass. 174.

Exceptions sustained.

MUNICIPAL CORPORATIONS LIABILITY FOR NEGLIGENCE IN PERFORMING PUBLIC DUTY. — A municipal corporation cannot be held liable for the negligence of its servants or agents when it is performing a duty strictly for the benefit of the public: Curran v. Boston, 151 Mass. 505; 21 Am. St. Rep. 465, and note; Moffitt v. Asheville, 103 N. C. 237; 14 Am. St. Rep. 810, and note; Hill v. Boston, 122 Mass. 344; 23 Am. Rep. 332, and note; Richmond

v. Long, 17 Gratt. 375; 94 Am. Dec. 461, and note; Stewart v. New Orleans, 9 La. Ann. 461; 61 Am. Dec. 218; Hickox v. Cleveland, 8 Ohio, 543; 32 Am. Dec. 730, and note; McDade v. Chester, 117 Pa. St. 414; Follmann v. Mankato, 45 Minn. 457.

BUTTERFIELD v. BYRON.

[153 MASSACHUSETTS, 517.]

CONTRACT PARTLY PERFORMED THE FUTURE PERFORMANCE OF WHICH BECOMES IMPOSSIBLE. - If one contracts to furnish labor and material, and construct a chattel or build a house on the land of another, he will not ordinarily be excused from the performance of his contract by the destruction of the chattel or building, without his fault, before the time fixed for the delivery of it. On the other hand, when work is to be done under a contract on a chattel or building, which is not wholly the property of the contractor, or for which he is not solely accountable, as where repairs are to be made on the property of another, the agreement of both parties is upon an implied condition that the chattel or building shall continue in existence, and the destruction of it, without the fault of either of the parties, will excuse performance of the contract, and leave no right to recover damages in favor of either against the other for its non-performance.

CONTRACT TO PERFORM A PORTION OF A WORK AND TO FURNISH A PORTION OF THE MATERIALS required in the erection of a building is, upon upon the destruction of the building, after its partial completion, terminated, so that the contractor is under no obligation to perform the like work or furnish the like materials, should the person with whom he contracted conclude to re-erect the destroyed building. No damages can be recovered of the contractor for not completing the building, but he is entitled to recover for what he had done and furnished up to the time it was destroyed.

ACTION for breach of a building contract, whereby plaintiff agreed to do the grading, excavating, stone-work, and plumbing, and the defendant to do the remaining work, and furnish the other materials, for a certain building to be erected on the property of the plaintiff, and to be completed on or before May 29, 1889. The defendant was to receive eight thousand five hundred dollars, to be paid, seventy-five per cent of the value thereof at the end of each month, and the balance within thirty days after the building should be completed. The time for the performance of the contract had been extended by agreement to June 10, 1889. On May 25, 1889, the building, when almost complete, was struck by lightning and destroyed by fire. Up to that time defendant had been paid $5,652.30. The plaintiff had insured his interest in the building, and having been paid the amount of his insurance, he assigned any claims he had against the defendant to the in

surer, for whose benefit the action was brought.

No demand

was made on the defendant to rebuild. The trial court directed a verdict for the defendant.

G. D. Robinson, for the plaintiff.

G. M. Stearns and W. B. Stone, for the defendant.

KNOWLTON, J. It is well-established law, that where one contracts to furnish labor and materials, and construct a chattel or build a house on land of another, he will not ordinarily be excused from performance of his contract by the destruction of the chattel or building, without his fault, before the time fixed for the delivery of it: Adams v. Nichols, 19 Pick. 275; 31 Am. Dec. 137; Wells v. Calnan, 107 Mass. 514; 9 Am. Rep. 65; Dermott v. Jones, 2 Wall. 1; School Trustees of Trenton v. Bennett, 27 N. J. L. 513; 72 Am. Dec. 373; Tompkins v. Dudley, 25 N. Y. 272; 82 Am. Dec. 349. It is equally well settled, that when work is to be done under a contract on a chattel or building which is not wholly the property of the contractor, or for which he is not solely accountable, as where repairs are to be made on the property of another, the agreement on both sides is upon the implied condition that the chattel or building shall continue in existence, and the destruction of it without the fault of either of the parties will excuse performance of the contract, and leave no right of recovery of damages in favor of either against the other: Taylor v. Caldwell, 3 Best & S. 826; Lord v. Wheeler, 1 Gray, 282; Gilbert etc. Mfg. Co. v. Butler, 146 Mass. 82; Eliot Nat. Bank v. Beal, 141 Mass. 566, and cases cited; Dexter v. Norton, 47 N. Y. 62; 7 Am. Rep. 415; Walker v. Tucker, 70 Ill. 527. In such cases, from the very nature of the agreement as applied to the subject-matter, it is manifest that while nothing is expressly said about it, the parties contemplated the continued existence of that to which the contract relates. The implied condition is a part of the contract, as if it were written into it, and by its terms the contract is not to be performed if the subject-matter of it is destroyed, without the fault of either of the parties, before the time for complete performance has arrived.

The fundamental question in the present case is, What is the true interpretation of the contract? Was the house while in the process of erection to be in the control and at the sole risk of the defendant? or was the plaintiff to have a like interest, as the builder of a part of it? Was the defendant's