Squire v. Whipple

Royce, J. delivered the opinion of the court. The general question presented by this record, is upon the validity of a parol agreement in die terms of that here set forth. And this requires the consideration of two objections which are made by the defendant’s counsel. The first is, that this contract is evidently designed [72] †0 create the relation of master and apprentice between the plaintiff and the defendant’s son, that such purpose can be effected only by deed, and therefore that die present parol agreement is ineffectual and void. The " second is, that as the contract could not, according to its terms, be fully executed within one year from the malting, it is rendered void by the statute of frauds for want of a memorandum or note thereof in writing. * Upon the first question there seems to be little if any doubt, that by the common law an apprentice cannot be bound as such except by deed. And an infant apprentice was no more able, at common law, to bind himself by deed in this case than in any other. The statute 5 Eliz. enabled infants under certain circum_ stances, to bind themselves by indentures of apprenticeship; and it has been inferred from this that the necessity of a deed originated in that statute. But it is laid down in the time of H. VI. “ that an apprentice must be by deed, a servant may be by parol contract.” It is true that, for the purpose of avoiding the penalties of the 5 Eliz. a service without indentures has been permitted to avail the party ; but this has little influence upon the present question. Again it is said,that the mere relation of master and servant confers the necessary right of government, and imposes the duty of protection. Hence arises the difficulty of deciding, to what particular thing the necessity of a deed attaches. It is not to bind the infant by his contract, for at.common law he is not bound by his own deed of apprenticeship ; nor is it to enable the master to correct and govern the apprentice, for this authority may equally belong to the relation of master and servant. The necessity of a deed then, consists in the effectual renunciation of the natural rights of the parent and the substitution of the master in his place,^ so as to draw after it all corresponding rights and duties. In thi^B view the transaction is highly solemn and important, and fully vin||» dicates the wisdom of that peculiar care with which the commof W law has guarded it. We are all prepared to say, that the relation of master and apprentice in its original and legal sense cannot exist except by deed. An enquiry still remains, whether this agreement, though void for the purpose of creating an apprenticeship, may not still be good between these parties by way of contract. A difference of opin73 Son on this subject existing with the 'tnembers of the court, no decision is pronounced upon the question. Blackman and Hall, for the plaintiff. lsham, for the defendant. The second objection remains to be considered. Though the «execution of the contract was to commence immediately, its complete accomplishment could not take place within One year. This brings the case within the letter of the statute, since the word “ performed,” as there used is held to mean a full performance or complete execution. And the spirit of the act, in its application to this case, would seem to admit of as little doubt as the words of it. Most, if not all the evils which the statute was intended to prevent, are to fee apprehended in cases of this description. But the operation of the statute is said to fee avoided in this case because the contract has been in part performed. Those acts of part performance which have been held to entitle a party to the full execution of the contract have little bearing in principle or analogy upon this case.— There has been no more execution of this agreement by one party than the other, and hence they stand on equal ground in respect to fraud or hardship. The reason of the case and the authorities cited concur in showing that this answer to the statute is unavailing ; and besides a doubt may well be entertained whether part performance is not exclusively a ground of equitable jurisdiction. The court are not at liberty to construe this as a contract for a single year, when it professes to be for a longer period. Nor would such a construction benefit the plaintiff in this action, since he has declared upon the contract as one for four years. The result is that the judgment of the county court must be affirmed.