71 P. 122 | Idaho | 1902
Lead Opinion
— This action was commenced by respondent, Frank J. Tuekey, a minor, by his guardian ad litem, Elias Tuckey, his father, to enforce a lien upon a certain crop raised by the appellant, in the cultivation of which it is claimed that said respondent, Frank J. Tuekey, performed work and labor with himself and with four horses at the agreed price of three dollars per day, amounting to the sum of sixty-three dollars and seventy-five cents, and for attorney’s fees for enforcing said hen in the sum of forty-five dollars. The statement of said laborer’s Hen in writing was executed by said Elias Tuckey, as guardian ad litem of said Frank J. Tuckey, and duly verified by said guardian ad litem, and recorded in the office of the county recorder of Latah county on the eleventh day of May,
There are two questions in this case: 1. Was said work and labor performed by said minor, Frank J. Tuckey, for and on-behalf of his father’s account, or for and on behalf of his own-account, working for his own benefit; and was that the understanding between the parties in this regard? 2. Even though it be held that said Frank J. Tuckey was entitled to compensation for the value of his own personal services, yet, under the circumstances, his father being indebted to appellant, and having agreed to pay appellant with the services of his son and horses, could the father donate the services of his horses to his infant son, and thus defeat the payment of the debt due from him to the appellant, his creditor?
It is shown in the evidence by both the father and mother of said minor, Frank J. Tuckey, that before performing the labor-in question for appellant the said father informed the boy that he might have whatever he earned in the way of services performed; but a careful review of the evidence convinces us that notice to this effect was not published to the world, and that appellant did not understand that he was to pay the boy for such services. On the other hand, that it was the understanding beween the parties that the services of the said minor and of said horses should be credited upon the account which the father of said minor owed to the appellant, and in this respect the findings of the court are not supported by the evidence. But going beyond that question, it is a well-established rule of law, as well as of equity and justice, that men must be just before they are generous. Being indebted to appellant, said Elias Tuckey cannot, in law, be permitted to clandestinely donate the time and services of his horses, which is property, to his infant son, for the purpose of defeating the payment of his debts; hence it is palpable that no lien existed as against appellant for the value of the services of the said four horses performed in plowing for the appellant, but the same should be credited upon
If it be a fact that Elias Tuckey had emancipated his said son, Frank J. Tuckey, and that the latter was entitled to his personal earnings, and that these facts were known to the appellant, then said Frank J. Tuckey would have a lien for the value of his personal services, but not the services of said horses. But if said facts were unknown to appellant, and he received the said services of said Frank J. Tuckey with the understanding between him and the father of said Frank J. Tuckey that the latter, with said horses, was to work in payment of said account, then said Frank J. Tuckey would have no lien upon said crop, except as to any excess that may remain after payment of such account to appellant if same was due and owing to him.
Inasmuch as the judgment must be reversed on account of the errors herein pointed out, the case should be retried in the district court. Judgment reversed, and cause remanded to the district court for further proceedings consistent with the views expressed in this opinion. Costs of appeal awarded to the appellant.
Dissenting Opinion
Dissenting. — I am unwilling to concur with my associates in the final conclusion reached in this case. Eor the purposes of my views I will adopt the statement of facts as shown by the opinion of my associates, and I further agree that only two questions are involved, and they are correctly stated in the opinion. Our statute does not require any kind of a publication or notice from the parent that a minor has been emancipated, and we take it that, if the appellant knew from any source that this boy had been given his time, and permitted to work for himself, and that his earnings should be his, that was sufficient notice. Section 2533 of our statute provides! that “the wages of a minor employed in services may be paid him, unless within thirty days after the commencement of the service the parent or guardian entitled thereto gives the employer notice that he claims such wages.” It is not claimed that any such notice was ever given by the parents of this minor to appellant, and hence he was entirely safe in settling with the young man, had he so desired. At folio 85 of the transcript, Elias Tuekey, the father and guardian ad litem, of plaintiff, testified that: “About the last of March or first of April I was down to Lenville, at the blacksmith-shop, and Lovell asked me if Frank would come over and work for him, and I told him that any agreement he made with Frank was all right with me; Frank was his own boss, and he would make his own bargains. I had given him his time, and he could do as he was a mind to. That was in April, 1901. I had no further conversation with him regarding the matter. After this conversation I did not send my son over to see Lovell. The conversation which I have mentioned took place between myself and Mr. Lovell at the blacksmith-shop at Lenville, Idaho. This was a few days before my son undertook the work. During that conversation there was present Mr. Morning, Mr. Wéaleh, and •Mr. Thomberg.” On cross-examination he does not vary his statement, but at folio 95 says: “I gave my son his time a year ago last May. The reason I told him so was because Mr. Veatch was down there, and he wanted me to enter into a contract to drag some land or harrow it. He wanted to know if he could go; I says, fYou can do as you are a mind to. I will
I think this judgment should be affirmed.