It is clear that no contract or memorandum in writing, sufficient to satisfy the statute of frauds, was made before Sunday, the 2d of July. The despatches which passed by telegraph between the parties on the 27th and 28th of June were insufficient to constitute such a memorandum, because they showed, at most, the terms of payment in part, and a direction from the defendant to the plaintiffs to draw up a contract accordingly, but did not otherwise describe, mention or refer to the subject of the contract. Farwell v. Mather, 10 Allen, 322. Hodges v. Howard, 5 R. I. 149. The written contract drawn up by the plaintiffs and sent by them to the defendant on the 28th of June, and containing the defendant’s name at the beginning, if within the authority conferred upon them by him, was not prepared for a complete contract or memorandum, but as a form to be afterwards signed by him, and had no effect as a contract or memorandum until so signed. Sanborn v. Sanborn, 7 Gray, 142. Caton v. Caton, Law Rep. 2 H. L. 127.

On Sunday the 2d of July, the parties met by the defendant’s request at Newport in the State of Rhode Island, the defendant signed one part of the contract and delivered it, with the check sued on, to the plaintiffs, and the plaintiffs received the same, and delivered to the defendant the other part of the contract, which had been signed some days before by their principal, the owner of the estate. Early on Monday morning the defendant gave notice to the plaintiffs that he would not complete the contract, and should stop payment of the check, as he immediately did. The right of the plaintiffs to recover upon the check so given therefore depends upon the validity of the transactions on Sunday which were the only consideration for the check.

By the law of Rhode Island, as of England and of this commonwealth, a person who has made a contract in violation of the statutes for the observance of the Lord’s day cannot main tain an action upon it. Allen v. Gardiner, 7 R. I. 24, 25. Day v McAllister, 15 Gray, 433. Metcalf on Con. 255—258. The stat ute of Rhode Island, like our own earlier statutes, is taken from the English St. of 29 Car. II. c. 7, § 1, and does not, like our *495present statute, prohibit any one from doing on the Lord’s day, without necessity or' charity, “ any manner of labor, business or work,” but only “ any labor or business or work of his ordinary calling.” Bennett v. Brooks, 9 Allen, 119. Business not within one’s ordinary calling is not made unlawful by the statute of Rhode Island; and it was ruled by the judge presiding in the superior court, rightly, we have no doubt, that the purchase of a dwelling-house for the personal occupation of the defendant and his family, the signing of a contract therefor, and the making and delivery of a check in part payment, were not within the ordinary calling of the defendant, in the sense of this statute.

It has been argued for the plaintiffs that it is no part of the ordinary calling of a broker to receive payment for land sold by him, still less to receive such payment by check, and that the acts done by the plaintiffs on Sunday were not therefore within their ordinary calling. But this argument proceeds upon too narrow a construction of the words of the statute, as applied to the evidence in this case. It appeared that the plaintiffs were real estate brokers, and were employed as such by the owner of the estate in question, made the contract for the sale, and were intrusted, for the purpose of delivering it, with one part of the contract, signed by their principal, and stating the amount named in this check to have been duly paid. This evidence would warrant the inference of fact that they were authorized by their principal to deliver the contract and receive paymeñt. This court has no more power, upon a bill of exceptions, to revise in matter of fact the finding of the judge to whom by the waiver of a trial by jury the case has been submitted in the court below, than the verdict of a jury. Gen. Sts. c. 129, §§ 66, 67. It is as much a part of the ordinary calling of a broker to receive and caray out the special instructions of his principal in relation to property which he is employed to sell, as it is to do whatever is embraced in the general authority arising out of his employment as a broker. The special instructions and the general authority are both given to him as a broker and according to the ordinary mode of conducting his business. It is immaterial whether the plaintiffs had or had not authority to receive *496payment by check; for whether they sue upon the check itself, or for an equal amount of money as not having been paid according to the contract, the only consideration of the promise declared on is the delivery of a contract by an act within their ordinary calling, and so within the prohibition of the statute. To say, as suggested in behalf of the plaintiffs, that a contract should not be held void if made through an agent, which would have been valid if made by the owner of the estate in person, would leave professional agents free to pursue their ordinary callings on the Lord’s day. A broker or tactor is commonly employed to do something which is not within the ordinary calling of his principal, but is within his own ordinary calling. A man who follows his ordinary calling as agent for others is not less within the words of the statute, or the evils which it was intended to prevent, than one who follows his ordinary calling on his own account. The fact that the parties to this action met on the Lord’s day at the defendant’s request, does not estop him to set up this defence. The plaintiffs in meeting the defendant on that day were in equal fault with the defendant who requested them so to meet him; indeed more in fault, inasmuch as dealing in real estate was their ordinary calling, and was not his, and the plaintiffs were therefore acting in direct violation of the statute. Fennell v. Ridler, 8 D. & R. 204; S. C. 5 B. & C. 406. Smith v. Sparrow, 12 Moore, 266; & C. 4 Bing. 84; 2 C. & P. 544.

In the only reported case in Rhode Island upon this subject, the delivery of a release by a creditor to an assignee under a voluntary assignment was held not to be within the statute for the reason that it was, in the words of the court, “ an act out of and beyond the sphere of his ordinary business, as was the assignment itself which required it.” Allen v. Gardiner, 7 R. I 22. Exceptions overruled.