Dickinson v. Talmage

Field, J. By the contract declared on, as we construe it, the defendant covenanted with the plaintiff to pay the monthly wages therein expressed for the services of the plaintiff’s minor son until he reached the age of twenty-one years. The stipulation, “ that all compensation shall be paid to the said Louis H. Dickinson,” does not prevent the plaintiff from maintaining the action, as the defendant’s covenant that he will make the payment in this manner is with the plaintiff. Caden v. Farwell, 98 Mass. 137. It is not clear that the indenture of apprenticeship put in evidence by the defendant has any relevancy to the case. It does not appear why the parties made the two different contracts, or why the plaintiff in the contract declared on bound himself in the sum of $300 to hold the defendant harmless from all obligations entered into by him in the indenture of apprenticeship. It may be that the latter was executed as a device to enable the minor to obtain the benefits provided by the will of Oliver Smith, while the former was intended to express the real understanding of the parties, but this we do not know. Whatever may have been the reason for executing the two instruments, the provisions of the indenture of apprenticeship 255 cannot be imported into the contract declared on so as to affect the liability of the defendant upon his covenants in the contract. It is immaterial, therefore, whether the facts found by the court as to the minor’s use of profane language and of ardent spirits, did or did not constitute a violation of the covenants of the plaintiff contained in the indenture of apprenticeship. The plaintiff had a right to make the contract declared on for the services of his son during his minority. Pub. Sts. c. 149, § 22. Gen. Sts. g. 111, § 23. Day v. Everett, 7 Mass. 144. Caden v. Farwell, ubi supra. The alleged emancipation of the son is not a defence to this action, for this reason, among others, that the contract was executed by the son as well as by the father. The remaining questions relate to the measure of damages. The court allowed in diminution of damages the wages earned by the son during his minority after he was discharged by the defendant; but apparently assessed damages upon the theory that the plaintiff was entitled to recover for his trouble and expenses in obtaining the new employment for his son. As the defendant has had the benefit of the new employment, he ought to bear the expenses incurred which were reasonably necessary to obtain it. The argument is, that the trouble and expenses were the father’s, and that the son received a larger sum in wages than if he had remained with the defendant. There is evidence enough recited in the exceptions to warrant the finding that the services were rendered and money paid by the father at the son’s request; but if this were not so, we are of opinion that, when a minor son, who has been given his time and his earnings by his father, returns to his father without employment, it is competent for the father to revoke the gift so far as it relates to future employment; and, even if this gift is not revoked, that it is the right of the father to obtain future employment for his son, if the son is willing to accept it. The gift of time and earnings by a father to his infant child does not establish a new status, but is in the nature of a license. The reasonable expenses incurred by the father in obtaining the new employment were therefore damages occasioned by the breach of the contract by the defendant. There is no exception to the amount of damages found by the court, if the rulings were correct. Exceptions overruled.