Cahill v. Patterson , 30 Vt. 592 ( 1858 )

The opinion of the court was delivered by

Aldis, J.

The auditor’s report states the facts as to the defendant’s requiring the minor to work at making mortar in the rain, as to the minor’s disobedience in going a fishing without leave, of his return and offer to work for the defendant, and the defendant’s dismissal of him.

It then proceeds to state the settlement between the minor and the defendant, and the balance due, the plaintiff’s settlement with the defendant, and the defendant’s recognition of a balance of eighteen dollars, as due the plaintiff for his son’s labor; of his silence as to any claim for his breach of contract, and subsequent offer of twelve dollars, and claim of six dollars damages. It finds the defendant received no damage from the boy’s leaving his employment.

Now the report does not state whether the defendant was justified in turning the boy away, or the boy justified in refusing to work at the mortar; nor whether the subsequent conduct of the defendant was an assent to the boy’s leaving, and a parting by mutual consent, with a recognition on his part, of his liability for the boy’s wages, or the contrary.

But the report finds that upon the whole, the plaintiff is entitled to recover. It would have been more satisfactory if the auditor had stated what his findings were upon these points, and what the precise grounds of his decision. But as there was testimony tending to support the claims of the plaintiff upon both grounds, the auditor was justified in deciding either or both for the plaintiff. We can not say that the report should be set aside because the auditor states his conclusion generally, when upon either of the two grounds it was justifiable upon the evidence.

There are cases which deny that a subsequent agreement of the employer, to pay his servant his wages after he has been rightfully dismissed, is valid. It has been alleged void for want of consideration. But in Vermont, it has always been held that he could waive the forfeiture, and that his acts and declarations recognizing his continued liability for the wages due the servant, might amount to a waiver of the forfeiture. The case of Seaver v. Morse, 20 Vt. 620, is a decision on this very point. The fact that the defendant settled for the wages, and “assented to the said sum as the amount due the plaintiff, and said nothing about any _ damage on account of the son’s leaving,” was evidence tending to show that he had waived the forfeiture, and held himself still liable for the amount of the wages. The settlement with the son on the day lie left, and malting no objection to being liable for the wages, is testimony of a similar kind. It was for the auditor to say whether it was satisfactory.

There was no contract between the father and the son, by which the former would be prevented from recovering for the wages of the latter. The son was not free from his father’s control, nor entitled separately to his own earnings, till the one hundred dollars had been paid. As it had not been paid, this action was properly brought.

The judgment of the county court is affirmed.