#### William Austin *versus*Charles Foster.

Under *St,*1827, *c,*118, providing ((that all contracts on account of the state-prisoi shall be made with the warden, and, when approved by the inspectors, shall be binding in law,” the contracts are not required to be in writing.

The approval by the inspectors may be by implication from their acts, as well as fcy an express vote, and is not required to appear on their records.

In an action to recover payment for labor performed, if the benefit of the labor is lost by causes for which the plaintiff would be answerable in a cross action, the same matter which would support the cross action may be given in evidence in de* fence of the suit to recover payment. But if the loss is occasioned by persons for , whose acts the plaintiff is not responsible, he will be entitled to recover the price of the labor.

Thus where the defendant made a contract with the warden of the state-prison for the labor of some of the convicts, and his shop, within the prison yard, was wilfully set on fire by convicts, whereby materials belonging to the defendant were injured more than the services of the hired convicts were worth, it was *held,*that the defendant was liable to pay for the labor at the price stipulated, the loss not being occasioned by the fault or negligence of the officers of the prison.

Assumpsit to recover the sum of $457'58, for the labot of certain convicts in the state-prison, from July 1st to August 20th, 1828. Their services were charged at thirty cents a day, according to a *parol*contract. A trial was had before *Putnam*J.

The action was brought in the plaintiff’s capacity of warden of the state-prison, according to *St.*1827, c. 118. The 4th section provides, that “ all contracts on account of the prison shall be made with the warden, and, when approved by the inspectors, shall be binding in law ; and the warden, or his successor in office, may sue or be sued thereon,” &c.

The defendant objected, that the statute refers to contracts in writing and express contracts, and not to parol or implied contracts ; but for the purposes of the trial this objection was overruled, and the plaintiff was permitted to prove the parol contract, and that it was approved by the inspectors. There was no evidence of any approbation of it in writing, on the part of the inspectors.

It was,proved, that the convicts so hired of the warden, were employed by the defendant in his shop within the walls of the prison, as cabinet-makers, and that cabinet work upon which they had labored for the defendant, of more value than the amount *347now claimed for their services, was burnt up by a fire set to the shop by some of the convicts in the prison, who had the liberty of the yard, upon a Sunday. Whether any of the convicts employed by the defendant participated in this criminal act, did not appear. It was proved that there was no negligence on the part of the officers of the prison, in guarding the conx'icts.

The records of the inspectors were admitted in evidence, notwithstanding they were objected to by the plaintiff; also the written proposals of the defendant in 1827, and the record of the directors showing the qualified acceptance of them.

Thomas Harris, who was warden when the parol contract was made, testified that he and the defendant referred to the written contracts of 1826 and 1825, in regard to the rate of wages. In those contracts there is no provision subjecting the defendant to bear the risk of fire or other damage to be done by the convict laborers ; and Harris said he told the defendant that he must bear such risk, and that the Commonwealth were not to bear it; but he added, that the defendant utterly refused to take that risk. In consequence of this, or for some other reason, no written contract was made. And there was no proof of any agreement on the part of the defendant, that he would run the risk of losses by fire, unless it can be inferred from the evidence above stated, together with the fact of his employing the convicts under the parol agreement.

The jury were instructed, that if they believed from the evidence, that the defendant did agree to take the risk of fire, he must be held to bear it; if not, then if the convict laborers had by their misconduct or negligence done as much injury as benefit upon their work for the defendant, their verdict should be for the defendant.

The jury found a verdict for the plaintiff; and the defendant moved for a new trial, for misdirection, and because the evidence was not sufficient to warrant the jury to find an agreement or assent on the part of the defendant to bear the risk of fire.

*Shaw,*for the defendant.

The provision in *St.*1827, c. 118, § 3, that contracts on account of the prison shall be sub*348mitted to the inspectors for approval, shows that the contract? must be in writing.

And a memorandum of the approval should be entered on the record.

But the substantial defence is, that the defendant has received no benefit from the labor of the convicts. As the warden sues for the use of the Commonwealth, the same defence should be allowed as if the action were in the name of the Commonwealth. The Commonwealth ought to be responsible for the conduct of prisoners working for their benefit, and entirely within their control. It is found that there was no negligence on the part of the officers of the prison ; that is, they performed the duties prescribed to them ; but when the question is between the Commonwealth and a third person, he has a right to say, that the officers ought to have been so numerous and under such rules, as to prevent the convicts from doing mischief. From the nature of the case, extraordinary care was required. *Templar*v. M'Lachlan, 5 Bos. & Pul. (Day’s ed.) 140 ; *Lane*v. Cotton, Com. Rep. 100.

*Leland,*contra,

said that even if the defendant did not agree to take the risk of fire, still he must bear the loss, and on this point the instruction to the jury was erroneous. The convicts are not servants of the warden ; and besides, a master is not liable for the malicious acts of his servant. *M'Manus*v. *Crickett,*1 East, 106 ; *2*Dane’s Abr. *c.*59, *art.*4, and *art .*10, § 3; *Croft v.*Alison, 4 Barn. & Ald. 590 ; *Nicholson*v. Mounsey, 15 East, 334.

*Shaw,*in reply,

said the question was not whether the Commonwealth was to be answerable in damages for the acts of the prisoners, but whether the defendant shall be held to pay, when, in consequence of the acts of the servants of the Commonwealth, he has received no benefit.

Parker C. J.

delivered the opinion of the Court. The objection to this verdict is threefold.

First, that the plaintiff, in his capacity of warden of the state-prison, had no right to sue, because the authority given by.the statute is to sue only on written, or at most, express contracts ; whereas the contract proved is not in writing, nor, in fact, express, but only implied, and therefore, if it exists at all, it is *349with the Commonwealth, and not with the warden, he not representing the Commonwealth in such contracts.

But we think this objection is not sustained. The *St.*1827, c. 118, which authorizes the warden to make contracts and sue on them, does not require that they should be in writing, and we cannot add to the requisitions of the statute.1 And as te the other branch of the objection, we think the contract is express, and not left to implication ; for Harris testified that the defendant agreed to take the men at thirty cents a day, by reference to contracts of the like kind, which had been made in preceding years.

Another objection is, that by the statute, the contracts made by the warden, to have any legal validity, must be approved by the inspectors ; and that there was no legal evidence of such approbation.

There was no evidence that the contract had been laid before the inspectors at any formal meeting, before it was begun to be executed, or that at any time that body passed any vote of approbation ; but it was proved that afterward they recognized its existence, and provided for its termination at the ensuing September. This is sufficient to warrant the jury in finding an approbation by the inspectors. The statute does not require that this approbation should appear of record. The inspectors are to make report to the executive, of the concerns of the prison, semi-annually, and their report is probably to include an account of the contracts subsisting; but there is no reason to suppose that a report made from such records as they may make, or from their knowledge, without referring to any record, would be insufficient.

The third objection is of a more general nature, and involves some principles of importance. Property of the defendant, on which his hired convicts had been working, while in the shop within the prison yard, was destroyed by fire, to a greater amount in value than the worth of the services of the hired convicts, the shop having been wilfully set fire to by the convicts. It would seem by the report, that the convicts who had *350worked for the defendant were those who did the mischief; ^ut judge who tried the cause, upon the examination of his minutes of the evidence, is satisfied that this is a mistake ; that the convicts who set the building on fire, were not designated by the evidence. Some of those might have been concerned, but there was no particular proof of it.

The position taken by the defendant’s counsel is, that as the defendant derived no nenefit from the labor and services of those men, he ought not to be held to pay ; and they refer to the case in 5 Bos. & Pul. 141, in a note, in support of this position. The case referred to appears to have settled definitively a principle which had before been questionable, and the decision is sound and useful, as it has a tendency to settle, in one trial, what would otherwise be the subject of two. The rule is this : “ if there has been no beneficial service, there shall be no pay ; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence.” *Farnsworth*v. *Garrard,*1 Campb. 39. This rule having been adopted and applied in an action of *assumpsit*upon a quantum meruit, may not be applicable to the case before us, which is on a special contract for an agreed price, but we will not determine the case upon that distinction, as there is broader ground involved in the argument.

The proposition contained in the English case cited, though extensive enough to embrace this case and all others in which, from any cause, he who is called on to pay for services performed, may defend himself by showing that he gained nothing by the services, must, from its very generality, be subject to qualification and restriction. It is an essential ingredient, that the loss should be occasioned by the fault or negligence of the party claiming pay, or of those for whose acts or omissions he is accountable. And that was the case which gave birth to the proposition. It was a case of work imperfectly executed by reason of the negligence or unskilfulness of the workman ; losses occasioned by acts for which he is not accountable, do not come within the reason of the rule. We take the sense of the proposition to be this, —that when the whole benefit of the labor is lost, by causes for which the plaintiff in the action *351would be answerable in a cross action, the same matter which would support the cross action may be given in evidence in defence of the suit for pay. 1

This defence therefore must be tested by the question, whether the facts reported would support an action against the warden, or would give a reasonable demand against the Commonwealth, provided it were liable to an action, for the acts of the convicts which occasioned the destruction of the property. And we think it clear, that no such case is made out by the facts relied on in the defence. It does not appear that the work was imperfectly done, or that there was any unskilfulness in the convicts hired by the defendant. The loss was occasioned by a separate independent act of wanton and malignant mischief, not in the course of their employment, but during a season of relaxation from labor.

The rule of law, after considerable vacillation, has been se* tied in the case of *M'Manus*v. Crickett, that where injury done by a servant, results from a wanton, malicious act, not in the course of his duty, the master is not answerable.1 So that if the fire had been set by the very convicts who were employed by the defendant, neither the warden nor the Commonwealth would be responsible. And this takes away all ground of defence, unless, in virtue of the contract and the peculiar relation which the convicts in the state-prison bear to the Commonwealth, there is an implied undertaking to insure against incendiary attempts and other destructive practices of the convicts ; which we think cannot be pretended.

Undoubtedly, if there were any negligence, or unusual relaxation of discipline, which gave the opportunity to do the mischief, the Commonwealth would be bound in equity to repair the loss ; but even this would not be a good defence to a suit upon the contract: certainly not, unless the men hired by the defendant were the authors or instruments. But it is found in this case, that there was no negligence on the part of the officers, the regulations of the prison having been duly enforced. *352It was a case of lawless violence, for which no redress can ne bad except by the application of mercy by the government.

We lay no stress upon the supposed finding of the jury, that the defendant took upon himself the risk of fire ; that however is the effect of his contract. He must have been aware that he was exposed to loss from sedition or rebellion. He bad no right to' be indemnified by the government, for its agent disa vowed any such liability.

We think, therefore, that there is no legal gro.ind of defence.

*Judgment according to verdict.*

1

 Contracts on account of the prison are now required to be made by the warden *in*writing, and when approved *in writing*by the inspector, they are to be binding in law. Revised Stat. c. 144, § 19.

1

 See *Dodge*v. *Tileston,*12 Pick. 328 ; *Harrington*v. *Stratton,*22 Pick. 510; *Parker v.*Brancker, 22 Pick. 44, 45.

1

 See Story’s Comm. Agency, 474 *et seq.*and notes; 2 Kent’s Comm. (3d ed.) 259, 260; *Sinclair*v. *Pearson, 7*N. Hamp. R. 221, 222.