Lobdell v. Allen

Dewey, J. The indenture upon which this action is brought is an indenture at common law, and not one made under the provisions of Rev. Sts. c. 80. Such indentures at common law, although they may not have the benefit of the provisions of the statute to enforce their performance, are nevertheless good in law, and may subject the father, who thus stipulates for the services of a minor son, to respond in damages for the breach of his contract. Day v. Everett, 7 Mass. 149. Although it may not be obligatory on the minor, yet the father may be liable on his covenants. But it is said that this was an indenture of apprenticeship made in this commonwealth between parties living here, and that although no place was stated in the indenture in which the service was to be performed, yet, by intendment of law, it was a contract for services to be performed in this commonwealth. We have no doubt such would be the construction to be given to an indenture under the revised statutes. We apprehend the same would be true of an indenture at common law, of the character of the one now before us, in the absence of anything to control such presumption or waive the benefits of it. If it were not so held, the effect would be to authorize the party to whom such services were secured to require the minor to remove to California, or even Australia. In the present case, there is wanting not only any express stipulation looking to services elsewhere, but there are provisions in the indenture indicating quite the contrary. Such is the provision that the minor is to board with his father, as long as the father is disposed to board him for $100 dollars per annum, to be paid in equal proportions monthly. This seems to give a locality to the services to be rendered by the minor. But this was a condition or portion of the agreement that might be waived or modified by the consent of the parties. The case [382] presents such waiver, or modification, made under circumstances which estop the defendant from setting up as a defence that the plaintiff had removed from the State of Massachusetts into the adjoining State of Rhode Island. The bill of exceptions finds that the plaintiff offered evidence tending to show that the defendant and the minor consented to the removal of the plaintiff out of the Commonwealth, and that the minor should accompany him and complete his apprenticeship at Providence, and performed actual services there under this assent. In reference to such evidence the instructions given were unobjectionable and sufficiently favorable to the defendant. Exceptions overruled.