Fuller v. Blair , 104 Me. 469 ( 1908 )

Savage, J.

Exceptions to an order of nonsuit. The plaintiff is a minor and brings this suit in her own name by her father as next friend, to recover compensation for her services as a singer. The sole question presented by this exception is whether her earnings belong to her or to her father. If they belong to her, the order of nonsuit was erroneous. But if they belong to her father, she cannot maintain a suit for them in her own name, even if her father is. willing. The father might waive his right to her services, and permit her to labor on her own account for her own benefit, in which case she could recover in her own name; but, of course, he cannot change a liability of the defendant to himself into a liability to his daughter by simply waiving his claim.

The law upon this subject has been so recently discussed by the court in Merrill v. Hussey, 101 Maine, 439, that it will suffice to state briefly the rules involved in this case. It is the general rule that a father, since he is bound to support his minor child, is entitled to the child’s wages. They belong to him, just as his own wages do. He may relinquish this right to the child. He may .do so by a general emancipation, or he may relinquish his right pro tanto, or in a particular instance. If a minor earns wages with the consent of the father that they shall belong to the minor, the latter is entitled to them, and not the father. Boobier v. Boobier, 39 Maine, 406. If a minor makes a contract for his services on his own account, and the father knows of it and does not object, the law implies the father’s consent that the wages shall belong to the minor. Whiting v. Earle, 3 Pick. 201; Boynton v. Clay, 58 Maine, 236. So, when a minor makes contracts for himself with the knowledge of the father, this is evidence of the latter’s consent. Manchester v. Smith, 12 Pick. 113. So, when the father authorizes the minor to go into a particular service and have his earnings, the minor is entitled to recover them in his own name, to his own use. Merrill v. Hussey, supra.

It will be noticed that in these cases the right of the minor to his own wages, in the absence of a general emancipation, was recognized only when the wages were earned "with the consent of the father that they shall belong to the minor,” or when the minor, with his father’s consent, made a contract for his services "on his own account,” or when the minor, with like consent, made a contract "for himself,” or when the father authorized him to "have his earnings.”

In this case no general emancipation is claimed. The contrary appears. The plaintiff, a thirteen years old school girl, was permitted by her parents to sing in public for hire. In general the mother made the arrangements, with the consent of the father. The earnings were paid to the mother and put into the family purse, for family use. In the particular instance involved in this case, the mother made the contract, and the father knew of it and consented to it. But there is no evidence that he consented that the daughter’s wages should belong to her. It is plain, on the contrary, that he did not.

It follows that a nonsuit was properly ordered.

Mxceptions overruled.