Wodell v. Coggeshall , 43 Mass. 89 ( 1840 )

Putnam, J.

A father, without doubt, has a right to the services of his children, during their minority, while they are under his care and are maintained by him. But he may emancipate them, and permit them to receive payment for their services for their own use. And in such case, he cannot recover for the value of those services. 2 Kent Com. (3d ed.) 192, 193. 11 Verm. 260. 480. Jenney v. Alden, 12 Mass. 378 Nightingale v. Withington, 15 Mass. 275. So far as the father has emancipated, or waived hi's right to the services of his minor children, so far he is precluded from enforcing any legal claim for their services. If the minor, while thus permitted by his father to live away from him, under the care and protection of another, should make any reasonable contract for his services, it would not be competent for. the father to avoid or annul it. But the law would, in such a case, presume that such contract was made with his assent. This would result from the principles before stated. Whiting v. Earle, 3 Pick. 202. Morse v. Welton, 6 Connect. 547.

Now in the case at bar, the plaintiff was bound to prove that, at the time when the defendants shipped his minor son, he was in his (the father’s) care and custody. But the jury have negatived that fact. And well they might. For there was evidence to prove, that for several years prior to the time when the defendants shipped the son, he had not lived with or been supported by his father ; that the father and the mother lived separate and apart from each other ; that the mother and some of her children were employed in a factory ; that the son in question had made it his home with his mother ; and that it was at her urgent solicitation, that the agent for the defendants’ brig took him to go upon a whaling voyage.

The plaintiff offered evidence to contradict these facts, but it did not satisfy the jury. And the facts, which are above recited abundantly disproved the allegation in the plaintiff’s writ, that his son was in the plaintiff’s care and custody when the defendants shipped him. The son was in a forlorn condition at that time ; and he was rescued, by that employment, from a state of vagrancy, and put in the way of gaining an honest livelihood. But it was not obtained for him by the watchfulness and care of his father. It was the mother who cared for him in that extremity ; the mother, to whose custody and protection the plaintiff had surrendered his son, for years before.

The instruction of the chief justice, that if the father actually suffered his son to remain under the custody of the mother, to be supported and employed by her, he cannot aver that he has been enticed from his care and custody, was entirely correct. And so the position, that if the father allowed his son to go from him and employ himself as he pleased, and take his wages, it was a qualified emancipation, and that the defendants were not liable to this action for employing him, is in our opinion well supported. The jury have affirmed the facts, thus put hypothetically for their consideration, as established by the evidence in the case. The law will infer, from those facts, that the contract for the employment, so obtained by the mother, while the son was in her care, was by the consent of the father, and so, of course, not revocable by hun. The notice of the plaintiff to the defendants of his relation to the boy, and the forbidding of the defendants to take him, were merely void. The contract had then been made. The boy had entered upon the service, and had received some clothes from the captain or owners of the ship, in advance ; his own clothes being then in a bad condition. If the shipping contract had been made by the father himself, he could not then have lawfully rescinded it, without the consent of the defendants. And it was equally valid when made at the solicitation of the mother, under the circum stances of the case, as it would have been if it had been made by the father himself. [See Steele v. Thacker, Ware, 91.]

The ruling of the chief justice having been correct, the judgment is to be rendered according to the verdict.