Chilson v. Philips , 1 Vt. 41 ( 1827 )

Royce, J.

delivered the opinion of the Court.

The plaintiff below declared in general indebitatus assumpsit for wbrk and labor performed by his infant son. The proof of ike .service' .established -an -apparent .right (to -recover ¿ ,the earnings -of the son being ¡the property >of the father.. ;It is now to be determined whether the -evidence -offered ,and rejected in the=court below ¡had a -legal ¡tendency <to tdefeat .the -right .of.recovery,For .the present purpose ithe facts offered;to -be .ehow-n-must-be - taken to-exist.Weare.there-feane to underslandthat .the - service sued for was in -factperformed -undera special agreement,by-the-t'eimsof which no -right/of action aliad aecrued.The-question then is,.to what -extent is tire-father-affected .by thaf-agreement.-? No-sufficient reason appears.-for saying, that he was bound to see the contract .executed; ¡for there .was no offer to show .that-he had-everrecognised .any suduobligation. The contractis-no.t to be regarded .as -his. fctr the purpose-of imposing responsibility. But there is a sense in which we think he was , precluded from wholly renounoing this agreement. His previous practice in permitting the son to make and perform, contracts of service, and to adjust and settle claims arising therefrom, afford- • ed to the-employer innhis‘instance a reasonable ground of belief, ihat 'he wodld not come'forward to claim the wages in disaffirmance.and.viólation of .the contract. . It has been argued for .the defendant in error,as if his right to recover depended on the privilege •idf-the-infant-to avoidthe-contract. And if-the action brought was in -contemplation-of law for the benefit-of the infant,the argumentmight be well founded. But the privilege of the infant has-in -reality no "concern «with the present-question ; unless-it had been shown that •byprevious emancipation, or other means,-the fruits of his lábour «were :his .own property. And even in that case, an action in -the ®ame and right of .the ¡father .would not lie to collect them. The .¡son--must be .-supposed ¡to stand-indifferent in point, of interest, ¡whether this -suit of the father, succeeded or failed. The -employer probably - knew that" the person hired was an infant not compella-ble ..to fulfil his agreement, and trusted to his pleasure -or choice ¡whether-;to fulfil it or not. He -entered upon the service, and af■;ter-a time refused to complete it, so as to acquire any claim to re-, -.-ward-in.virtue-of the contract. '.Under such circumstances,for the .father-to say-that a.refusal to make compensation-for-the service performed is an injury to the son, is at the same-time saying in ef.fect that this-town 'action for the wages is .unfounded. Had the infant been emancipated, he might doubtless have recovered for the service performed, notwithstanding his avoidance of the contract. But when it is considered that the service was received under a special slipular- • tion, without which it would probably have been refused, and that ■ this stipulation was induced by a seeming authority with which the father had invested the son, we think that the right of the father, to interfere for his own benefit between the parties to the contract, was justly forfeited by the indiscretion of his previous conduct. The evidence offered on trial should have been received. The judgment complained of is therefore reversed.

Phelps and Bradley, for the plaintiff in error. Holley and Needham, for the defendant in error.