Powers v. Allen

Birch, J., delivered the opinion of the court. The evidence in the case as prescribed in the bill of exceptions, is substantially as follows: William Powers, a brother of the defendant, had been placed by his Father with Allen, the plaintiff, to learn the trade of a tailor. The testimony is somewhat conflicting and doubtful as to the length of time he was to remain and consequently the portion unfulfilled at the time he absconded, but it was proven that the defendant knew what the understanding was about the time it was originally entered into, and it is at least inferable from the correspondence between him and the plaintiff, which resulted in giving the note in suit, that they did not materially disagree as to the value of the time, to cover which the note was executed. It was proven that William, the apprentice, was persuaded, by letters from the defendant, who was his brother, to leave the service of the plaintiff, and that he procured him a situation in another town, where the defendant resided. There was conflicting testimony as to whether the apprentice was properly instructed and advanced during bis stay with the plaintiff; and testimony was also admitted that he yras [369] occasionally put to the performance of other business, about the tavern and stable of his master, going to mill, &c. Immediately after the apprentice absconded, the plaintiff wrote a letter to the defendant, in which he charged him with having enticed away his brother — represented that his services for the remainder of his term were worth $30ü, but that if defendant would enclose his note for $100 at twelve months, the matter should be dropped, but that if he did not do so he would publish him in the newspapers. The defendant answered this letter before the arúval of his brother, signifying the probability that if his brother came on to him, and did not (as he might then already have done) conclude to go back to the plaintiff, he would send his note for the $100, and also, in a second letter, explain the reasons why he had acted as he had done. No such second letter appears in the record, but it is proven, that his brother did arrive at his house, a few days afterwards, and that thereupon he did make and forward to the plaintiff the note in suit. The action was petition in debt, and the plea the statutory one. The jury were instructed by the court, for the plaintiff, as follows : 1. The note sued on, purporting on its face to be for value received, the jury are bound to believe it for a valuable consideration, and the defendant is bound to prove no consideration, to avoid the payment. 2. If the jury believe from the evidence that the father of William H. Powers placed him with Allen for a definite period of time, to learn the tailoring business, by mutual agreement, verbal or written, said H. Powers had no right to leave Allen without the consent of Allen and his father; and if they further find that it was in consequence of the interference, connivance, or at the instance of John A. Powers he left the employment of Allen, and afterwards John A. powers gave his bond to Allen, to indemnify, in consequence of the injury received by his brother leaving the employ of Allen, they must find for the plaintiff. 3. The father of William H. Powers, he being a minor, had the entire control of him; and if the jury believe he placed him with Allen, as an apprentice ior a definite period of time, and John A. Powers in any way interfered with the control of Allen over said W. H. Powers during his apprenticeship, so as to cause the plaintiff to sustain an injury, and they shall also believe the note here sued on was given in consideration of that injury, they are bound to find for the plaintiff the entire note and interest. These instructions being unobjected to, at the time they were given, no point could be raised upon them, as was attempted in the motion for [370] a new trial in the court below, and of course none can be raised or entertained in this court. Several other instructions were given at the instance of the defendant and some which he asked were refused. We deem it unnecessary, however, to copy a comment upon them, further than to state that had all been given which were asked, they could in no sense have changed the finding of the jury, under the first instruction which was given at the instance of the plaintiff, and which (as before remarked) was unob-jected to by the defendant. The judgment of the Circuit Court is therefore affirmed.