12 Barb. 473 | N.Y. Sup. Ct. | 1852
By the Court,
The theory of the plaintiff’s action is, that the indenture of apprenticeship being void, the relation of the parties is the same as if no attempt had been made to bind the plaintiff as an apprentice; and that, this being the case, the defendants are liable upon a quantum meruit, for the plaintiff’s services.
It seems to have been assumed by the parties in their pleadings, and also upon the trial, that the plaintiff’s father was still living. It was because the father was living and had not consented to the binding of the plaintiff, in the manner prescribed by law, that the indenture was void. It was insisted upon the trial, that the father being alive, this action, if maintainable at all, could only be maintained by him. I think this is so. The father is entitled to the services of his minor child, and to all that such child earns by his labor. He has the same right, in this respect, that the master has to the services of his apprentice. (Reeve's Dom. Rel. 290. Nightingale v. Withington, 15 Mass. Rep. 272.) But the father may emancipate his child.
But, conceding that, if the action can be maintained at all, it may be brought in the name of the plaintiff, are the defendants, under the circumstances of this case, liable in an action for work, labor and services ? No person is to be made a debtor without a contract, express or implied. Where there is no express promise to pay, the law, moving upon the very justice of the
Thus, where a woman, upon the death of her husband, returned to her father’s house, and remained there for several years, rendering such services as are ordinarily performed by a child in the family of a parent, it was held that before she could maintain an action for such services, she must show that they were performed in the expectation of being paid therefor, and that the father so understood it, or had good reason to believe that she intended to make him her debtor for such services. (Fitch v. Peckham, 16 Verm. Rep. 150.)
In Griffin v. Potter, (14 Wend. 209,) Potter, the plaintiff in the original suit, was born a slave, and had been purchased by Griffin, the defendant. By the default of Griffin in complying with the provisions of the act for the gradual abolition of slavery in this state, Potter became entitled to his freedom when he was 18 years old. But he remained in the service of his master until he was nearly 21. The action was brought to recover wages after he was 18, and it was held that, under the circumstances, there was no ground upon which an implied promise to pay for his services could be maintained.
Livingston v. Ackeston (5 Cowen, 531,) was decided upon the same principle. Ackeston, though in fact a free man, had been purchased by Livingston as a slave. He worked for him supposing himself to be a slave. Afterwards, having ascer
In Williams v. Hutchinson, (3 Comst. 312,) a minor child, upon the re-marriage of his mother, went to live in the family of his step-father. There was no agreement" or understanding that he should receive wages or pay for his board and clothing. He left the family when he was 19 years old, and brought an action for his wages. It was held that having lived with the defendant as a member of his family, without any contract or understanding that he should be paid for his services, no promise would be implied. So, where a master, with the consent of his apprentice, assigned his indenture, and the apprentice went to live with the assignee and continued with him until he was 21 years old, in an action to recover for his services, it was held that, though the assignment might have been void, the voluntary continuance of the plaintiff with his new master, rebutted the presumption of a promise to pay for his labor. (Williams v. Finch, 2 Barb. S. C. Rep. 208.)
I cannot see why the principle which controlled the decision of these cases is not equally applicable to that under .consideration. The plaintiff went to reside with the defendants as an apprentice, and not for wages. He continued with them, during the period for which he now claims wages as such apprentice, and not for hire. 1STeither he nor his parents, could have expected any other compensation for his services than that stipulated for in the indenture. Though the indenture was invalid for want of the father’s written consent, the relation of master and apprentice subsisted de facto, so long as the plaintiff continued with the defendants. Both parties were acting under a mistake. They alike thought the plaintiff was bound as an apprentice. There is no reason to believe that the defendants would have kept the plaintiff for a single day, had they supposed that he was to receive wages for his services.
Had the plaintiff been compelled to render service for the defendants, when he was under no obligation to do so, perhaps the
So, in Higgins v. Breen, (9 Missouri Rep. 497,) cited by tho plaintiff’s counsel, the decision proceeded upon the principle that a party will not be allowed to show that he has himself committed a wrong, in order to defeat an implied promise. The plaintiff had been fraudulently induced to marry the defendant’s intestate, believing him to be unmarried, when in fact he had a wife living. She lived with him and managed his household affairs, until he died. In an action against the administrator for her services, the defendant was not permitted to defeat the action by showing the marriage. But, in the present case, no such element appears. It cannot be pretended that the plaintiff was under any constraint, or that he remained with the defendants against his will, or that the defendants were guilty of any wrong. The action can not, therefore, be sustained upon the principle of waiving a tort, in order to raise an implied promise.
The other cases upon which the plaintiff’s counsel relies depend upon principles equally inapplicable here. In Vent v. Osgood, (19 Pick. 572,) the plaintiff, a minor, with the consent of his mother, his father being dead, had shipped himself as a mariner upon the defendant’s ship, for a whaling voyage. Before
In any view I have been able to take of this case, the plaintiff must fail in sustaining his action. It is agreed that the contract of apprenticeship was void. Yet while the parties resided together, mutually performing the conditions of that contract, the relation of master and apprentice existed, as really as if the indenture had been binding. Upon the termination of that relation, neither party would have any claim upon the other, beyond the conditions of the contract. An agreement to pay the plaintiff wages, under such circumstances, could not be raised by implication. My conclusion, therefore, is that the judgment should be reversed and a new trial awarded.
Judgment accordingly.
Parker, Wright and Harris, Justices.]