Pray v. Gorham

Sherley, C. J. By statute of 1821, c. 170, § 1, and as revised, c. 90, §, 1, children under the age of fourteen years may be bound as apprentices or servants until that age, by the mother, after the death of the father. But this power ceases on her subsequent marriage, c. 88, § 4. While the power exists, it can be exercised only according to the provisions of the stat [242] ute, by an indenture of two parts, signed by both parties, c. 90, § 3. While the mother, after the death of the father, remains unmarried, she is entitled to the care and education of her minor children, c. 110, § 5; but this does not authorize her to malee contracts with other persons for their services in a manner not authorized by statute, or to receive compensation for services rendered in consequence of an unauthorized contract. The contract proved in this case was entirely unauthorized and inoperative ; for it was not made by indentures signed by the parties, and it attempted to bind the infant until he was twenty-one years of age. The instructions were correct, that the minor was not bound by it. It is contended, that the plaintiff can maintain no action to recover compensation for his labor, because his mother was, after the death of his father, entitled to his earnings. The case of Nightingale v. Withington, 15 Mass. 272, is relied upon as authority, where Parker, C. J. says, “ generally the father, and in case of his death, the mother, is entitled to the earnings of their minor children.” A minor child may consent to become the servant of the mother, and she may make a contract with another person for his services, as she would for the services of any other person, who had for the time being become her servant, and may in such case recover for those services. Clapp v. Greene, 10 Metc. 439. If it be intended to declare, that the mother, after the death of the father, is entitled to the earnings of a minor child, in the same manner as the father while alive was entitled to them, the position cannot be sustained. 1 Bl. Com. 453; Commonwealth v. Murray, 4 Binn. 487; People v. Mercien, 3 Hill, 400; Morris v. Law, 4 Stew. & Port. 123. In this case the mother did not attempt to make a contract for her own benefit, but for the benefit of her child. It is further insisted, that the exclusion of the answer to the third interrogatory, in the deposition of Minerva W. Turner, was erroneous. That answer would prove a conversation between the mother of the plaintiff and the wife of the de [243] fondant, which would not contradict the testimony of the mother. And another conversation between the grandfather and grandmother of the plaintiff, and the defendant and his wife, which could have no effect upon the rights of the plaintiff. The answer was therefore properly excluded. Exceptions overruled.