Haugh, Ketcham & Company Iron Works v. Duncan , 2 Ind. App. 264 ( 1891 )

Reinhard, J.

The appellee, an infant, brought this action by his next friend, against the appellant, for work and labor done for and at the request of the appellant, averring in the complaint that, though an infant, the appellee had been manumitted and set free by his father. There was a substituted and amended complaint filed, which was demurred to by the. defendant below, who is the appellant here. The demurrer was overruled, and the appellant answered in four paragraphs:

1. The general denial.

2. Payment.

3. That appellee is not the real party in interest, he being an infant, and his father, Robert Duncan, who is still living, being entitled to receive the earnings and wages of the appellee.

4. That the work claimed for was done under a special contract of apprenticeship, made by the appellee and his father, by which the appellee was to learn the art of moulding iron, and was not to receive his full wages until he had served out his term of apprenticeship, which he had not done; that he had received all his work was worth; that appellant, under the contract, had imparted certain instructions to appellee in the.art of moulding iron, for which appellee and his father had agreed to compensate appellant by the appellee’s serving out his full time, etc.

The appellee demurred to the third and fourth paragraphs of the answer.

The demurrer was overruled as to the third and sustained as to the fourth paragraph. There was a reply to the third paragraph of the answer, setting up:

1. The general denial.

2. Manumission by his father.

Upon the issues thus joined there was a trial by jury and a verdict and judgment in favor of the appellee.

The court overruled appellant’s motion for anew trial, and rendered judgment on the verdict. An appeal was taken to the general term, where the judgment was affirmed.

The errors assigned in the general term of the superior court were :

1. The overruling of the defendant’s demurrer to the substituted and amended complaint.

2. The sustaining of. the plaintiff’s demurrer to the fourth paragraph of the answer.

3. The overruling of the defendant’s motion for a new trial.

The only error assigned in this court is the affirming of the judgment of the court in special term by the court in general term.

The demurrer to the complaint was grouuded upon the following causes:

1. That the complaint does not state facts sufficient to constitute a cause of action.

2. That there is a defect of parties defendant, in'that the plaintiff’s father is a necessary party.

The complaint, among other things, contains the following averments in relation to the plaintiff’s minority and manumission :

“ That during the entire time said work was being done and labor performed by plaintiff for the defendant, the plaintiff resided with his father, Robert Duncan, who is still living, and was, by his said father, during the entire time said work was being done and labor performed, and for a long time prior thereto, fully and completely manumitted and permitted and allowed to collect and use his entire earnings for his own use and benefit.”

This is the only allegation contained in the complaint concerning the subject of the plaintiff’s infancy and emancipation.

It is argued by the counsel for appellant that as the complaint shows upon its face that the appellee is still living with his father, and was so living with him during the entire time the work was being performed, the averment of manumission is thereby contradicted and overcome, and the complaint is bad.

We think, however, that where the complaint avers, as it does in this case, that the son has been fully emancipated, the fact that it also appears he is still living with his father will not vitiate the other averment.

The appellant places the rights of the infant, growing out of his emancipation, upon the same footing with rights acquired by assignments of choses in action by delivery, and insists that the rule that the assignor must be made a party in such cases applies with equal force here.

We do not think, however, that there is any analogy of the kind claimed between the assignment by delivery of a chose in action and the act of manumission by a parent of his child so that the latter may collect his own earnings. In this case the complaint avers that the father never had any interest in the-subject of the action. The averment is, in effect, that from the beginning to the close of these services, the appellee was the sole party interested in them, having been completely emancipated before any of them were rendered. These averments the demurrer admits. The father, therefore, never had any interest in them, and he could not have transferred anything which he never owned.

The necessity of making an assignor of a chose in action, assigned by delivery, a party defendant, arises by force of the statute. Section 276, R. S. 1881. This statute can not be applied to persons not assignors. The appellee’s father can certainly not be said to be an assignor by the facts averred. It is true, under section 268, any person who claims or has an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved, may be made a defendant by the court. There was no answer or plea, nor any application to make appellee’s father a defendant. The question arises on demurrer to the complaint. There is no pretence that the father claims any interest or that he has any, nor is it shown by the facts averred, that the father is a necessary party to a complete determination of.the questions. In fact the complaint discloses the very opposite, for if the facts therein alleged are true, it is not easy to see how he could be a necessary party. If there are any facts which make it necessary that he should become a defendant they do not appear in the complaint, and should be set up in some pleading or application by the defendant. Strecker v. Conn, 90 Ind. 469. It can not be said, therefore, that the complaint is so defective in this regard that it does not disclose a cause of action in the plaintiff, and we do not think that it shows any defect of parties defendant.

The appellee either had or had not a right to bring and maintain this action. If he had that right the presence of his father in court would not help the matter or make the appellee’s right any greater or less; if he had not, by reason of his infancy, or want of interest, the right to bring and carry on such suit, the objection, unless it appears on the face of the complaint, must be taken by answer or plea. Edwards v. Beall, 75 Ind. 401.

The rights of the son, after emancipation by his parent, to demand and recover his earnings, are as complete as if he had reached the age of majority. When the father has once emancipated and set free his son he has no further pecuniary interest in his services and earnings, and can not afterwards reclaim the right to the same. See Wright v. Dean, 79 Ind. 407.

The demurrer was properly overruled. Did the court err in sustaining the demurrer to the fourth paragraph of the defendant’s answer ?

The substance of this paragraph is more fully set out in the appellant’s brief, as follows :

“ 4. That about the 4th of June, 1883, the plaintiff, an infant, with his father, Robert Duncan, applied to defendant to employ plaintiff as an apprentice in the moulder’s trade, and to teach plaintiff to become a skilled workman, and thus place him in a condition, when he had mastered the art of molding, to earn the wages that by universal custom are paid to such skilled workmen. That it had been ascertained, and found to be, and was the fact, that during the first year of apprenticeship, the apprentice is a detriment and an injury to his employer and to the manufacturing business, because of the fact that whilst learning his trade, by his inexperience,he injures and destroys tools, implements and work belonging to the employer, and that it is only during the latter portion of an apprentice’s term that his services are valuable, of which plaintiff and his father were informed upon applying for employment. The defendant thereupon agreed with the plaintiff and his father that it would employ plaintiff as an apprentice upon the following terms and conditions, viz.: That for the first six months he would be paid at the rate of $2.50 per week; during the second six months he would be paid at the rate of $3 per week; and for each succeeding six months an increase of wages of fifty cents per week; that the apprenticeship should continue for four years. It was also agreed that in case plaintiff should continue with the defendant for the full four years, the defendant would, at the expiration of the period, pay to the plaintiff as an additional compensation, by way of reward for continuing in its service for the full period of four years, a sum equal to fifty cents per week during the whole period; but it was expressly agreed between the plaintiff and his father that such additional compensation should not be payable unless plaintiff should continue to serve his entire apprenticeship; that the plaintiff did not do his work faithfully, nor obey the orders of defendant and its foreman, but was unruly, mischievous and troublesome, was not steady with his own work, interfered with and interrupted the work of the other employees ; that several times he voluntarily quit work and left defendant’s employment, but was frequently, upon his own and his father’s request, reinstated, and finally, about February 4th, 1885, was discharged by defendant’s foreman for misconduct and disobedience of orders, without fault or wrong on the part of the defendant; that during the active time of his continuance in defendant’s employ, he was paid the agreed price in full for his services, but was not paid the sum agreed to be paid in case he served the full time, and from week to week plaintiff accepted such pay as full payment of his services except in the contingency named, and the amount so paid to plaintiff was the full value of the servioes rendered.”

It is obvious that this is an attempt to hold the appellee, who was a minor during all the time the services were rendered, liable on a special contract entered into in his behalf by his father.

Such contracts as the one here pleaded have repeatedly been held voidable upon the part of the infant party. He has*a right, in all such cases, to abandon the contract and sue and recover on a quantum meruit. Dallas v. Hollingsworth, 3 Ind. 537; Wheatly v. Miscal, 5 Ind. 142; Van Pelt v. Corwine, 6 Ind. 363; Garner v. Board, etc., 27 Ind. 323 ; Meredith v. Crawford, 34 Ind. 399.

The facts set out in this paragraph are not in the nature of a set-off for necessaries furnished the appellee, as contended by appellant; the paragraph proceeds, as already stated, upon the theory of a special contract, and the infant plaintiff can not be held liable thereon. If the appellant had filed a set-off for the schooling he claims he furnished the appellee, in teaching him the art of moulding iron, possibly a different question might have arisen. See Meredith v. Crawford, supra.

Many of the facts pleaded in this paragraph, if not all, were provable under the general denial.

The court did not err in sustaining the demurrer to this paragraph.

Did the court correctly overrule the motion for a new trial ?

The appellant complains of some instructions given, and of the court’s refusal to give some which he had asked for.

In the instructions asked for by the appellant, counsel say it was their theory, and they sought to have the jury instructed, that, “ Before the son could be said to have been legally emancipated so that he could in his own name enforce as against his father and the party against whom the liability is claimed, his claim, there must have been a formal arrangement, contractual in its nature, entered into between father and son, by which the father thenceforth lost control over what the son might earn, and that the mere presumptive acquiescence by the father in his son’s receiving his wages, the father assisting in the support of the son, would not prevent the father from resuming control of his son’s services whenever he should see fit to do so ; ” and they say that “ The theory of the court was that nothing in the way of formality or contract was necessary, but the jury was authorized to ‘ infer ’ an emancipation from the fact that the father either permitted his son to contract for work and to receive his wages, or that he knew that this was being done by the son and made no objections thereto.”

It is insisted by counsel that “ The right of the parent to his son’s services is held by no such slender thread. The duty of the parent to support his child is an absolute one. He may temporarily abandon this duty, and refuse to perform it, but the obligation is still on him nevertheless, and whenever he sees fit to resume his duty of support, the correlative right returns to him, unless he has in some formal and effective manner conceded it to the son in such manner that he can not recoup it. Wright v. Dean, 79 Ind. 407.”

We do not think it was necessary for the appellee to prove any formal contract between him and his father upon the subject of the appellee’s manumission. That fact may be proved by circumstances the same as any other fact may be proved. We know of no reason why the acquiescence of the father in the acts of his son in drawing his own wages, and other acts tending to show that the father had emancipated him, may not be given in evidence to the jury; and, if they maybe introduced in evidence, it then becomes a question for the jury to determine the weight of the same. See 6 Am. and Eng. Encyc. of Law, 448, n. 3.

The appellant complains of the sixth instruction given by the court. The contention is, that the court in this instruction entirely ignored the element of education, by reason of which it was claimed that the minor had derived certain benefits the value of which should have been deducted from the amount found to be due the appellee.

There was no proper set-off or counter-claim pleaded as a basis for any testimony tending to prove the performance and value of such services by the appellant for the appellee. The sixth instruction, when taken as a whole, states the law fairly and correctly as applied to this case. The court committed no error with reference to the instructions.

The ruling of the court upon the admission and rejection of certain questions and answers in the testimony of appellee and other witnesses, is complained of by the appellant.

We have examined the testimony given and that excluded, and think that no substantial injustice was done the appellant in connection with this ruling upon the testimony. No particular benefit would be achieved by setting out these questions and answers at length in this opinion. No error was committed in the court’s ruling in the admission or rejection of testimony.

Filed Sept. 16, 1891.

No substantial ground is shown upon which a reversal of the judgment of the lower court could be properly based.

Judgment affirmed.