Tuckey v. Lovell , 8 Idaho 731 ( 1902 )

STOOKSLAGEE, J.,

Dissenting. — I am unwilling to concur with my associates in the final conclusion reached in this case. Eor the purposes of my views I will adopt the statement of facts as shown by the opinion of my associates, and I further agree that only two questions are involved, and they are correctly stated in the opinion. Our statute does not require any kind of a publication or notice from the parent that a minor has been emancipated, and we take it that, if the appellant knew from any source that this boy had been given his time, and permitted to work for himself, and that his earnings should be his, that was sufficient notice. Section 2533 of our statute provides! that “the wages of a minor employed in services may be paid him, unless within thirty days after the commencement of the service the parent or guardian entitled thereto gives the employer notice that he claims such wages.” It is not claimed that any such notice was ever given by the parents of this minor to appellant, and hence he was entirely safe in settling with the young man, had he so desired. At folio 85 of the transcript, Elias Tuekey, the father and guardian ad litem, of plaintiff, testified that: “About the last of March or first of April I was down to Lenville, at the blacksmith-shop, and Lovell asked me if Frank would come over and work for him, and I told him that any agreement he made with Frank was all right with me; Frank was his own boss, and he would make his own bargains. I had given him his time, and he could do as he was a mind to. That was in April, 1901. I had no further conversation with him regarding the matter. After this conversation I did not send my son over to see Lovell. The conversation which I have mentioned took place between myself and Mr. Lovell at the blacksmith-shop at Lenville, Idaho. This was a few days before my son undertook the work. During that conversation there was present Mr. Morning, Mr. Wéaleh, and •Mr. Thomberg.” On cross-examination he does not vary his statement, but at folio 95 says: “I gave my son his time a year ago last May. The reason I told him so was because Mr. Veatch was down there, and he wanted me to enter into a contract to drag some land or harrow it. He wanted to know if he could go; I says, fYou can do as you are a mind to. I will give you your time, and you can take the horses, and work them for their keep,’ as we had to buy grain, cand, as long as I don’t need them, you can work them, and whatever you earn is your own.’ I told this to Mr. Yeatch, of Moscow. I think I also told Mr. Spotswood that I had given Frank his time when he asked me if Frank was going to work for Mr. Yeatch. I think I told Mr. Yenigarholz a year ago last May. I presume I told several. First told the defendant that I had emancipated my son last March or April, when he came and asked me if Frank could come over.” Frank J. Thckey testified that it was finally agreed that he should have three dollars per day for himself and teams. “He agreed to pay cash — he said it would be cash. One day I asked Mr. Lovell for some money. He said he did not have any at present, but probably he could get some in a few days. He asked me to see Mr. Morning, if he had any money to loan him. I told him I didn’t like to ask Morning for the money, and that was all that was said that day. Mr. Lovell told me once more that maybe he could get some money-out of those pigs after a while. At the time he talked about paying me, when he said the pigs, was after I had worked possibly two weeks. This conversation, in which Lovell agreed to pay cash, was at Mr. Lovell’s place, the last of March or first of April. When I went to work, I asked him how the pay would be — cash, or have to wait. He said cash. This was in 1901. Before this I had done work for Lovell, myself and plow and team of five horses. I had not fixed the price before I had commenced the work. I had nothing to do with that ■deal.” C. E. Thomberg testfied that he was present, and heard the conversation between Tuckey and Lovell about the last of March or first of April, in regard to hiring Frank Tuckey, with certain horses, this year, at the blacksmith-shop at Lenville, Idaho. “At that time I heard Mr. Lovell ask Mr. Tuckey whether he could let Frank come over and work. Mr. Tuckey said that he had nothing to do with Frank; he could go over and work if he wanted to. Said he didn’t have anything to do with him. Tuckey said he would have to come up and see Frank about working. I know of nothing more.” On cross-examination he said: “What impresses my mind what that conversati on was, I was standing there by Mr. Tuckey’s hack— right by him. He had been in the shop, and I was watching the team, and when he came back I was standing there, and Lovell and Tuekey were talking. I overheard the conversation. Worked for Mr. Tuekey from May 7th until June 27th, and went back last fall, and have been there since. Have generally made that my headquarters the last year or so.” Elias Tuekey was recalled, and testified that the conversation at the blacksmith-shop took place about four or five days before Frank Tuekey entered into .the contract. Mr. Lovell testified: “Elias Tuekey purchased some wheat from me in October, 1897. He was to pay for it that fall, when he sold his wheat. He failed to do so. I spoke to him about it a time or two, and in the spring I told him I would give him the privilege of working it it out. He said he would like to do so; that he would let hishoy come and work for me. Mr. Tuekey sent his son, with his team, to work as long as I wanted him that spring; and he told me he would send him again; that he would like him to work out the account. The first time Mr. Tuekey told me that whatever I could agree with Frank upon the rate per day would be satisfactory with him. I agreed upon a rate of two dollar», and a half per day. He worked twelve days. Tuekey owed me eighty-eight dollars for the wheat in the first instance. All that Elias Tuekey said was that it would be applied on the? account. Have repeatedly since then asked Mr. Tuekey to send Frank to work for me to finish paying the account, but never succeeded in getting him, until last spring, to agree to' send Frank again. I spoke to him at the creamery meeting in the winter, and he said he didn’t have much work to do this spring, and he thought he could let Frank come. Afterward I met him at the blacksmith-shop, and asked him if he was going to send Frank over to help me. He said yes; that he hadn’t, anything else to do. I told him I could commence very early. He said that would suit him. I asked him what he would work for this spring with his team. Elias said, “Whatever arrangements you make with Frank will he satisfactory with me,’ the same as he did when he worked for me before. When Frank came over, he wanted to know what I was going to pay. I told him the same as before, two dollars and fifty cents per day. He didn’t have much to say. Said he would let me know whether he could come or not. When he came back he said he could get more wages than that. I asked him how much he wanted. He said three dollars per day. I told him I would allow him three dollars per day if his father would let him come over with his team. He asked me for money after he had worked there. One Sunday morning he asked me for two dollars. I told him that I didn’t have any money to give him. I settled up with Frank. He worked to the amount of sixty-three dollars and some cents. The first time I knew Frank was emancipated by .his father was when the summons was served on me. Prior to this trial they never made any such statement to me. At the time I had this conversation at the blacksmith-shop there were a number standing around. I think no one heard the conversation between Tuckey and myself. Mr. Thomberg was in the seat with Elias Tuckey. The buggy was standing about a rod or two from the shop. Mr. Morning and Mr. Wealeh was all I could recollect that were there in the courtroom. I have not subpoenaed them. After the work was done, the first demand for the new raise was made the next morning, after I settled with Frank and he went home. His father came to my place. Mr. Tuckey talked something about the work, and he says, ‘Frank, you demand your pay for your work.’ I asked Mr. Tuckey if he was not owing me yet. He said he was not. That was about all. I boarded Frank and his teams while he was at work.” We are in full accord with the rule that men should be just before they are generous, but we think solemn contracts should be carried out, and that Mr. Lovell should not be permitted to defeat the claim of this young man for his hard earnings. If Elias Tuckey is indebted to Lovell, he should pay it; but the only evidence we have on this question is the! evidence of Mr. Lovell, who says Mr. Tuckey denied any indebtedness to him. The father of Frank Tuckey had the right to allow his son to use his teams if he so desired, and he wasi entitled to his lien for his labor and the use of the teams.

I think this judgment should be affirmed.