Ballard v. St. Albans Advertiser Co.

52 Vt. 325 | Vt. | 1880

The opinion of the court was delivered by

Veazey, J.

The auditor finds that the defendant by its authorized agent contracted with the plaintiff for the services of her minor son, at a stipulated price per week for an indefinite time. The son began work for the defendant under this contract, May 1, 1876, and continued work until December 9, 1877. It does not appear that the defendant ever notified the plaintiff of any change in this contract, or attempted change, with her son. Therefore the notice to the son of a reduction of price could not affect the plaintiff. The principles governing such a contract are fully stated in McDonald v. Montague, 30 Vt. 357, and that case is decisive of this one on this point. The fact that the contract in that case was for a definite period affords no ground for applying a different rule in this case.

But the defendant contends that as the report does not expressly find that the plaintiff, who is set up in the writ as Mrs. Sarah Ballard, is not under disability to sue, she cannot maintain the action. We do not think there is any such legal presumption now against the female sex, — whatever it may have been nearly one hundred years ago, when the case of Burk v. Phips, 1 Root, 487, to which we are cited, was decided. The legal status of the sex has undergone great changes since then. There are several instances under our statutes where a married woman having a husband living may sue alone. Add to these the large class who are entitled to be called “ Mrs.,” yet have no husbands by reason of death or divorce, and they make too large a number to warrant us in holding that the title of “ Mrs.” placed before the plaintiff’s name in a writ, raises a general legal presumption of disaabilitv to sue, even if it appears that the suit is brought to recover for the services of a minor son. We think this case should not be an exception to the general rule of pleading which requires disability of plaintiff to sue, to be pleaded.

In this case, if the rule was as the defendant claims, the question not having been raised in the County Court, cannot be raised here. This court revises only such questions as were raised below.

Judgment reversed, and judgment for the plaintiff for the largest sum.