Baker v. Lauterbach
68 Md. 64
Md.
1887
Check Treatment
Bryan, J.,

delivered the opinion of the Court.

John Lauterbach entered the service of Baker Brothers '& Co. on the first day of March, 1880, and remained in their employment until August, 1883, when he was killed by an accident. He was twenty years of age on the twenty-ninth of March, 1880. His father died some years previously to his entering this service. But it appears that his mother signed a written contract with Baker Brothers & Co., by which she undertook to bind him to them as an apprentice for five years to learn the art and trade of glassblowing. The contract stipulated that if the boy was considered competent to learn and be instructed, be was to receive for his services one-half of the rate of wages paid journeymen for similar work for the first four years, and two-thirds of such wages for the fifth year, and it was further stipulated that two hundred dollars should be held by the employers out of his wages, as security, to be paid at the expiration of the term of the apprenticeship; or forfeited if he should leave their employment for any cause whatsoever, before the expiration of the term of five years. All the wages were paid with the exception of two hundred dollars, and the present suit was brought by the administratrix of the deceased apprentice against Baker Brothers & Co. to recover this amount. The verdict was for one hundred and sixty dollars.

The contract was not signed by the employers, but only by the mother of the boy. In the view which we have *69taken of the case, this circumstance is immaterial. A father may bind out bis son as an apprentice until he reaches the age of twenty-one years, provided he pursues the mode authorized by the twentieth section of Article six of the Code; but a contract of apprenticeship executed by the mother is simply void. The boy would not be obliged to serve according to the terms of such an instrument; nor would the employer, by force of it, acquire any control over him. He did, however, serve for three years and five months with a full knowledge of the terms of this contract. He knew therefore the rate of compensation which his employers expected to pay for his work; it would not then be just that he should receive more. The law would imply a contract on the part of his employers to pay him what his services were reasonably worth. It would not, however, imply a contract on the part of the boy to servo for five years, nor to pay a forfeiture in case he should leave the service before the expiration of that time. A contract of this kind is required, by the fourth section of the Statute of Frauds, to be in writing. The terms of the Statute are, that no action shall be brought “upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to he charged therewith or by some person thereunto by him lawfully authorized.” If, therefore, the boy had in express terms made a verbal contract to serve for five years it could not have been enforced against him by the other party. And if after serving a portion of the time he should refuse to carry out his contract, and bring suit to recover the value of the services rendered, the verbal contract would not avail the employer as a defence. It could not be set up as a contract at all; the breach of it would impose no liability which the law could enforce; the obligation to perform it could not be maintained in an *70action at law. In Browne on the Statute of Frauds, the law is thus stated: “As a general proposition, however, we shall hereafter see that a verbal contract within the Statute cannot be enforced in any way, directly or indirectly, whether by action or in defence.” Section 122. “The Supreme Court of Connecticut, in a case where the plaintiff by oral agreement bound himself to serve the defendant for a term longer than one year, for a consideration to be paid at the end of that time, and having repudiated the contract and quitted his employer at the end of six months, brought his action to recover the value of the services so-rendered, held that he could recover, and that the defendant could not set up the existing verbal agreement to defeat his claim.” Sec. 122a. “The clear rule of law is, that such a contract cannot be made the ground of defence, any more than of a demand; the obligation of the plaintiff to perform it is no more available to the defendant in the former case, than the obligation of the defendant to-perform it would be to the plaintiff in the latter case.” Sec. 131. It appears to us therefore upon the uncontested facts in the case that the plaintiff is entitled to recover the full value of the boy’s services, less such sums as have-been paid. It seems to be unnecessary to notice in detail the rulings of the Court below. It is sufficient to say that they accord with the views which we have expressed.

It must be observed that although contracts within the Statute of Frauds are void unless they are in writing, yet the voluntary performance of them is in no respect unlawful. If services be rendered in pursuance of a contract of this kind by one party, and be accepted by the other, they must be compensated. Ellicott vs. Peterson's Executors, 4 Md., 491. And if an action be brought against a defendant for acts done, which were in performance of such a contract, or authorized by its terms, no recovery can be had against him. Crane vs. Gough, 4 Md., 333; Browne on Statute of Frauds, sec. 133. It is said that the contract. *71operates as a license to do these acts, although it cannot be set up as conferring any right of action. As said by Lord Abinger in Carrington vs. Roots, 2 Meeson & Welsby, 248, in speaking of a case within the Statute: “I think the contract cannot be available as a contract at all, unless an action can be brought upon it. What is done under the contract may admit of apology or excuse, diverso intuitu, if I may so speak; as where under a contract by parol, the party is put in possession, that possession may be set up as an excuse for a trespass alleged to have been committed by him.” * * * “The agreement might have been available in answer to a trespass by setting up a license; not setting up the contract itself as a contract, but only showing matter of excuse for the trespass.”

(Decided 13th December, 1887.)

Judgment affirmed.