McDonald v. Montague

The opinion of the court was delivered by Aldis, J. The plaintiff sent his minor son to one Martin, in Bennington, with direction for Martin to hire him out at discretion. Martin hired the son to the defendant for nine months, at five dollars per month, and the defendant was to school the boy the three remaining months of the year. The defendant might discharge the boy if he did not like him. It is claimed on the part of the defendant, first, that the report finds that the defendant discharged the boy, and made a new contract with him to work for one year for forty dollars; and that as the terms of this new contract were not performed by the boy, the plaintiff can not recover. The report says, “ the defendant told the boy he could not keep him under the contract with Martin, and made a new contract with the boy to work for him one year for forty dollars but this was not communicated either to the- plaintiff or Martin. [359] From these facts it is plain, first, that there was no binding force in the new contract. The son had no authority to make such, or any bargain. Authority for that purpose had been conferred upon Martin, and the fact that the defendant made the original contract with Martin, was no+ice to the defendant that he was not to contract with the minor. The new contract, which wholly dispensed with the provision for the hoy’s schooling, and left him to work a year at a less price than was to have been paid for the nine months service, itself illustrates the evils that would flow from inferring upon slight evidence the assent of the parent to the contracts o^ the minor, and thus impairing that salutary authority over the minor’s acts and contracts which the law has so wisely confided in the father. It is plain, secondly, that the defendant did not discharge the minor according to the spirit of the contract made with Martin. To do that he should have actually discharged him. So long as he kept him, the plaintiff and Martin must-have understood he was keeping him under the original contract. To tell the boy he could not keep him under the contract with Martin, and thus obtain from him a consent to stay upon terms much less favorable, and which deprived him for the year of the means of education, (an object in the eye of a parent, as well as in reason and law, of no slight value,) and then to keep this secret from his father and Martin till the boy’s service under the original contract was ended, and the time for his going to school had arrived, is a course of conduct not justified by any acts of the plaintiff seeming to authorize it, and plainly inconsistent with those obligations to both the father and the son which the defendant incurred in his agreement with Martin. It can not be regarded as either making a new contract, or discharging the old one. The question then arises, can the plaintiff recover under the first contract ? The report of the referee says, “ the boy stayed the nine months and lost during the time nine days“ the defendant 'refused to send the boy to school according to the contract, and the boy .quit the defendant’s employment.” It is claimed by the defendant, that as íhe performance m he service for the, whole period slated in the contract is a condition [360] precedent to the right of recovery, the son should have worked nine days more to make up the lost time, and that the omission to do so bars the plaintiff from recovering any part of his wages. We are to presume that this loss of the nine days was necessary and reasonable, and had been so acquiesced in by the defendant; for the report shows nothing to the contrary, and it seems the boy continued to work for the defendant to the end of the nine months. When we say the loss of time had been acquiesced in by the defendant, we do not mean that he had acquiesced in it so that he was bound to pay for the service of the boy during such lost time; but only that he had acquiesced so that he could not say he would on account of it put an end to the contract or refuse to pay for the service. Now we think a hiring of this kind must be construed to be for a specific and limited period of time •— like the term in a lease, from such a day to such a day,— and that when the term ends, when the last day of the specific period has expired, the laborer is not bound to make up for time necessarily and reasonably lost and in the loss of which the employer has acquiesced, by continuing on in the service of the employer for a length of time equal to the time so lost. Neither is the employer bound to receive labor for such length of time as compensation for the time lost. Such a construction of the contract might work injustice, both to the employer and the laborer. Suppose a laborer is hired for one year, beginning, as is very common, with the first of March. He loses three or four weeks in haying and havesting by sickness, would it be reasonable for him to insist upon making up for the loss by continuing to work three or four weeks in March ? So on the other hand, laborers, who in the spring hire out for a few months, expect their time to end about the time haying and harvesting begin, and that then they will get higher wages; how obviously unjust it would be to require them to make up for time necessarily lost in the early spring, by working an equal length of time in haying and harvesting. We are well aware that there is a very common practice for laborers to make up in this manner for lost time; and in the exercise of that good sense and spirit of justice which usually governs the dealings of our farmers and farm laborers, such practice is [361] wholesome and works no wrong. But the loss of time is often regulated by special agreement, is often compensated by deduction for it on settlement, is rarely a matter of much amount, and is easily settled hy agreement of the parties. We do not think that there is any such general custom of the country in making up for lost time by continuing in the service a length of time equal to the time lost, as requires that contracts for labor should he governed and regulated by it, and the custom be deemed to be incorporated as a part of the contract. In the present case, the hiring was substantially for a year, the hoy to work for nine months, and then to go to school for three months. As the time for going to school had arrived, and the defendant refused to let him go to school, the boy was justified in quitting his employment. We think, therefore, the plaintiff is entitled to recover, and the judgment of the county court is affirmed.