Conant v. Raymond , 2 Aik. 243 ( 1827 )

Hutchinson, J.

delivered the follo"Hpnion of the Court.

The charge of the court to the jury, anothe refusal to charge as requested by the plaintiff’s counsel, present one and the same question for the decision of this court. They are counterparts of each other, or nearly so.

But the counsel are not perfectly agreed upon a preliminary question, which ought first to be disposed of, to wit: whether this be an action to recover the wages of the apprentice while in the employ of the defendant 1 Upon this point the plaintiff’s counsel are correct in their premises, but not so in their conclusion. They are correct, when they say, that a recovery by the plaintiff in this action would be a bar to any action he might afterwards bring for wages of the boy, during the same period of service; but it does not hence follow, that this is an action for the wages, in á legal sense of the expression. The two actions are founded upon entirely different principles, and the rule of damages differs also. In assumpsit, for work and labour done, a man may recover for the value of the labour of his apprentice, although the employer were ignorant that he was apprentice to any person, till after the services were performed. And by bringing such an action, he waives all complaint of any wrong act done by the man he sues, and must content himself with recovering, as upon contract, the fair value of the services performed, just as if he had let the apprentice, without agreeing upon a price. And this recovery is had upon the ground of the benefit the defendant received from the services.

But the present action sounds in tort, and the ground of recovery is the injury the plaintiff sustained by the loss of the service, that is, what the service would have been worth to the plaintiff, not what it was worth to the defendant; and all the circumstances of the injury to the plaintiff should be considered in assessing the damages. Furthermore, this action, sounding in tort, cannot be maintained, merely by showing that the defendant has had the services of the plaintiff’s apprentice,.but it must also be shown, that he enticed him away, or harboured him, knowing him to be such apprentice. In the present action, if the plaintiff could recover at all, upon the facts stated in the case, he could only recover for the injury he sustained by the harbouring of his apprentice, after the notice served the seventh of August. But, had he brought assumpsit for the services, if he supported his action at all, he would recover for his services from the beginning.

Such being the nature of the present action, we proceed to examine whether the plaintiff has established, against the defendant, the wrong of which he complains ? The proof upon this point is, that the defendant harboured the boy during the period complained of, and that the articles of apprenticeship, during the same period, bound the boy to the plaintiff. There is no proof, that the defendant knew of the apprenticeship till the service of the notice, on the seventh of August. There was proof, introduced by%h*e defendant, that, before the seventh of August, the plaintiff had refused to receive back the apprentice, unless he would take back certain reports he had circulated, tending to injure the plaintiff. And on the seventh of August, a notice was served upon the defendant, signed by the plaintiff, informing that the boy was an indented apprentice of the plaintiff, and had left him without his consent, and telling the defendant not to harbour or detain him.

The charge of the court attaches importance to these facts, if the jury should find them proved. The plaintiff having refused, before the seventh of August, to receive back the apprentice, unless on terms as above, this notice, served on that day, contains no intimation of any willingness on the part of the plaintiff, to receive him. The charge, then, virtually treats all this as a refusal by the plaintiff to let the boy return, or to let the defendant employ him. And the plaintiff affirms he had a right thus to do; he says this was his mode of punishment, for the transgressions of the boy.

The position would not be tenable, nor do we understand it contended for, that the plaintiff would have a right to turn his apprentice away without cause, and yet retain his power over him, and prevent others employing him. The argument assumed is, that if the refusal to receive back the boy was conditional, and the condition was reasonable, that is, as applied to the case in question, if the boy had made and circulated such reports as he ought to take back, and would not, then the defendant would not be justified in detaining the boy, after the notice given by the plaintiff. Now, if the plaintiff would support this argument in derogation of the charge of the court, it must be supported by facts not in the case. What the reports were, whether injurious as complained of, whether true or false, were important matters to be presented, before the reasonableness of the course pursued by the plaintiff could be judged of by the court; and without testimony upon these points to be left to the jury, the charge requested could not be proper.

The question, then, is presented, whether the defendant-might employ the apprentice, while the indentures were in full force, and after the plaintiff had refused to let him return to his serv; ice, and before he had made known any change of resolution in this respect, and when it does not appear definitely to the court what were the reasons of such refusal ? We consider the defendant justified in such employment. And we go farther; we consider, if the boy deserved punishment, the plaintiff had no right to crowd him upon the world as a punishment, out of his own protection, and forbid the protection of friends, and doom him to remain an idle outcast until reformation, or till he would submit to the requisitions of the master. Reformation is not to be expected in this way; he may not fall among the best advisers ; and the veto against harbouring, may, with as good right, be extended to parents as to other friends. And thus the master may excuse himself from all the duties enjoined by the indentures, and yet hold the indentures lifting against those who should extend to the apprentice those charities which arc the dictate of humanity. If the apprentice has broken the inden-|.ureg on jjjs part, the master may be off, if he chooses; but he musj; n0£ select such a punishment as is a virtual renunciation of his own duties of protection and instruction, and exclude the protection and employment of others. The views thus expressed, necessarily result in the affirmance of the decision of the county court.

Horace Everett, for the plaintiff. Isaac N. Cushman, for the defendant.

The plaintiff takes nothing by his motion, and the judgment of the county court is affirmed.