A preliminary exception is taken by the plaintiffs in their argument, that three trustees are summoned, and one only has answered.
In examining the case, it appears, that the plaintiff seeks to charge the three trustees on a joint liability from them to the principal defendants; that one has answered for himself and the other two, jointly, and stated the joint account. We think this is prima facie sufficient; especially when no exception appears to have been made to the sufficiency of the answer before it was submitted to the court for adjudication. If, for any cause, the plaintiff desired to -have the sworn answers of all the trustees, he should have excepted at the time, and appealed to the court, to require of the trustees a better answei.
It is argued for the plaintiffs, that the trustees admit a certain sum named as a debt due to the defendants, but claim it as a forfeiture. We do not so understand their answer; on the contrary, the facts stated by them show that nothing was due from them, at the time of the service; and by force of the contract, under which the wcuk was done by the principal defendants, nothing would be due now. What they do admit is, that they were under a contract with the principal defendants, by which, had it been performed, the defendants would have been entitled to the sum named) but they deny that it was so fulfilled. Upon the facts stated, the court are of opinion that there was nothing due.
As to part of a month’s work, not completed, nothing had been earned. By the terms of the contract, it was entire for each month, and unless the work was continued to the end of the month, the defendants were not entitled to have an estimate made by the engineer.
As to the one quarter part of the nominal amount earned in former months, it was payable only Upon the completion of the entire work contracted to be done, and as this never was done, this quarter part therefore never became a debt due, which could be charged by the trustee process.
Trustees discharged.