Campbell v. Cooper, 34 N.H. 49 (N.H.)

Sawyer, J.

The claim of the plaintiff is for damages on account of the alleged unlawful acts of the defendant, in enticing away from the service of the plaintiff the two minors, Mary Cooper and John B. Cooper, and receiving and harboring them, while owing service to him. It is well settled that to entice away from the service of the master one to whose services he is entitled, is in law an injury for which he may have redress hi damages.

Two positions have been taken by the counsel for the plaintiff in the argument. 1. That the plaintiff had the legal right to the services of the minors as against them at the time they were enticed from him; and, second, that if he had no such legal right as against them, nevertheless the relation of master and servant in fact existed between them and him at the time they were enticed from him, and that constitutes a sufficient ground upon which to claim redress as against the defendant.

The first enquiry then is, had the plaintiff a legal right to the services of the minors, or either of them, at the time they were enticed from his service. The claim to the services of John B. Cooper rests upon the indentures of apprenticeship entered into between’his father and Oliver Shepard, when John was about nine years of age, and similar indentures subsequently entered into between Shepard and the plaintiff before the minor became fourteen years of age, and the assent of the minor in both cases endorsed upon the indentures, or otherwise given in writing. We understand the indenture between the father and Shepard to have been entered into subsequently to March, 1843, when the Revised Statutes took effect. By the provisions of chap. 151 of those statutes, in force when the indenture was executed, and remaining ever since unchanged, children under the age of four

teen years may be bound as apprentices or servants until that age, without their consent. Minors, above the age of fourteen years, may be bound, males until 21, and females until 18, or marriage, with their consent distinctly expressed in the indenture, signified by their signing it. The chapter further provides that no minor shall be bound except by an indenture of two parts, signed, sealed and delivered by both parties.

It is clear that no right was acquired by Shepard himself to the services of the minor under this instrument from the father, as an indenture of apprenticeship under the statute. As such, it failed to bind the minor to the service, because the statute expressly declares that no minor shall be so bound without an indenture of two parts, and the case finds that this was not in two parts.

But, considered not as a statute indenture, but as a common law contract, it may give to the party with whom the father contracts a right for the time to the services of the minor. It may be regarded as a license, given by the father to take the custody of his minor son, and employ him in the manner stipulated in the indenture. If the father thus places his minor child in the custody of another, under an agreement that the child shall labor for him, it would constitute for the time the relation of master and servant, entitling the master to the remedy for enticing the minor from his service. Such agreement would give the legal right to the services of the minor for the time being.

But the further question arises, would such agreement give the legal right to the services of the minor for a stipulated time, •extending beyond the life of the father. At common law the father is entitled to the services and earnings of his minor children, because he is bound to support and educate them. The right grows out of the obligation, and is correlative to it. When one ceases the other ceases also. The helplessness of the infant, demanding the tutelage and support of the father, in contemplation of law terminates in ordinary cases at twenty-one, and the child becomes emancipated from parental control and entitled to his own earnings. If, by reason of continued helplessness, aris

ing from physical or mental infirmity, the emancipation does not then take place, and the burthen of the support continues, the corresponding right to the services continues with it. If, anticipating the period of emancipation, fixed by law at the age of twenty-one, the father surrenders to the son the right to his earnings at an earlier age, and permits him to go into the business of life as his own master, while he thus continues independent of parental control the obligation to support him remains suspended. So, too, if the father drives his minor son from his home, and refuses to contribute to his support, the right to his earnings is also suspended so long as this dereliction of duty continues.

But this obligation to support the child continues only during the lifetime of the father. However large may be the estate which the father leaves at his death, the common law gives no claim to the child upon it which may not be defeated at the pleasure of the father. By the civil law the father is not at liberty totally to disinherit his child at his death, without good and sufficient reason expressed in the will. Without such reason assigned in the will it may be set aside by the child thus disinherited, as a testament contrary to the natural duty of the parent. But the common law leaves every man at liberty to dispose of his estate as he pleases, even to the extent of devising all his property to strangers or otherwise, as caprice may dictate, and leaving his infant children to be supported at the public charge. In 5 Vesey 444, Lord Alvanley said he was afraid that such was the common law of England. It is certain that such is the law of this State, except so far as the common law has been modified by the statute provision, that the solvent estates of persons deceased shall be chargeable with the support of the infant children until they shall arrive at the age of seven years.

The common law, then, while it imposes upon the father no obligation to make provision for the support or education of his infant children after his decease, does not confer upon him the right correlative to it, to bind them to service after his decease.

The father is not to be considered as having an absolute right

of property in the labor and services of his offspring until twenty-one. Whatever right he has, it is but a qualified and contingent interest, depending on their living with him and berng maintained by him, and arising out of the personal trust under which he holds them for their protection and tutelage. While he continues to furnish them support, he may appropriate their earnings to his own use, but he has no present property in their future earnings, except as coupled with the condition that he shall be burthened with their support when the earnings accrue. These views are abundantly sustained by the authorities.

In the case of the People v. Mercein, 3 Hill. N. Y. *399, Cowen, J., in an opinion marked throughout with great ability, denies the power of a father to alienate or dispose of his children during their minority, except for the specific and temporary purposes recognized by statute, such as apprenticeship in the lifetime of the father, and testamentary guardianship at his decease. “ These,” his children, he says, “ the father holds under a personal trust, inalienable to any other person. Those countries,” he adds, “ in which the father has the general power to dispose of his children, have always been considered barbarous. Our own law has never allowed the exercise of such power, except for those specific and temporary purposes.” In New-Jersey it has been decided, in accordance with these views, that a father may recover back the possession of his infant child in disregard of his agreement to commit the infant to the care and custody of another till twenty-one, and under which agreement the child had been adopted and treated as a son by the person to whom it was thus committed. Mayne v. Budwin, 1 Halstead Ch. R. 454. In England, also, in the recent case of Queen v. Smith,* in the court of Queen’s Bench, 16 Eng. L. and Eq. R. 221, it was decided that where the father had agreed with his infant child’s uncle to permit the infant to live with the uncle as his child, to be brought up and educated until the infant was grown up and able to take care of herself, and the uncle had agreed to bring her up and educate her as his daughter, and the custody of the child was committed to the uncle in pursuance of the agreement,

the father, notwithstanding the agreement, might revoke his consent, and that the court, on a writ of habeas corpus obtained by the father, was bound to order the child to be restored to the father’s custody. In Day v. Everett, 7 Mass. 145, Ch. J. Parsons says, the father may contract that his minor son shall labor in the service of others for a day, a month, or any longer time, so that the time do not exceed the period of the child’s emancipation from the father, which may take place as well on the father’s death as on the son’s arriving at the age of tw'enty-one years.

In Jenness v. Emerson, 15 N. H. 486, which was an action by a minor to recover for his labor and services — the father being dead and the mother insane and a pauper — it was decided that the mother was not entitled to the earnings of the son, she not maintaining him; and the doctrine was fully recognized that it is only when parents are bound to support and do actually support their children, that they are entitled to their earnings. In delivering the opinion of the court, 'Wood, J., after a careful review of many of the leading American cases on the subject of the common law principles regulating the correlative rights and duties of parents and children, says, “ it seems entirely clear, upon the principles maintained in all the authorities, that the mother has no right or claim to the services of a minor child in a case where she is not bound or liable for its support. When no such duty exists, no such right exists. The right to the services arises directly out of the duty and liability for support.”

It is clear, then, that all power on the part of the father over the labor and services of his minor child ceases at his death, except so far as such power may be conferred by statute. That an apprenticeship created in conformity to the requirements of the statute may continue to bind the child after the death of the father, is not doubted, but this power, like that which the father may exercise under the statute of Charles II., chap. 24, of appointing testamentary guardians of his minor children, is derived, not from any common law principles, but from the express declaration of the statute. Whatever view may be taken of the

character of the contract between the father in this case, and Shepard, it, not constituting a statute apprenticeship binding the son to the service, ceased to have any validity at the death of the father, and consequently gave to Shepard no right to the services of the son, to be transferred by him to the plaintiff. Besides, if it constituted a statute apprenticeship, it would seem that it was upon such personal trust that the master could not permanently transfer the services of the apprentice to another upon the 'condition of his giving the instructions to the apprentice which the indentures stipulated for from him. King v. Stockland, Doug. 70; Caister v. Hades, 1 Ld. Raymd. 683; Nickerson v. Howard, 19 Johns. 113. In Coventry v. Woodhull, Hobart 134, it is said, “ the matter of putting an apprentice is a matter of great trust; wherefore, I will by choice commit him to one and not to another.” And in Bacon’s Abridgement, Tit. Master and Servant, E., it is said, “ the placing out an apprentice to a particular person arises from an esteem and good opinion of the party to whom he is so committed. The law makes it such a personal trust and confidence that the master cannot assign or transfer it over to another.” This view is recognized by the statute of this State relative to apprentices, sec. 6, chap. 160 of Compiled Statutes, which provides that no indenture shall be binding after the death of the master.

The plaintiff, then, acquired no legal right to the services of the minor, John B. Cooper, as against the minor himself, in virtue of the indentures executed by the father. The written assent of the minor to the contract between Shepard and the plaintiff may, however, be considered as an agreement by the minor himself to labor for the plaintiff, upon the terms stipulated, until he became twenty-one. Such a contract on the part of the infant is not void except at his election. Until avoided by him it is valid as between the parties and as to third persons, in the same manner as if made by an adult. The minor having entered upon its fulfilment, thereby created the relation of master and servant between the plaintiff and himself; and until he chose to disaffirm the contract the master may properly be said to have a

legal right to the services rendered. Any act done by the minor, clearly indicative of his intention not to be bound bf it, would avoid it, and from the time of the avoidance it becomes a nullity for all purposes. It is even held thereby to be made a nullity ah initio, whenever it is necessary so to consider it for the purpose of preventing injustice to the minor. Lufkin v. Mayall, 5 Foster 83. But it is clear that, from the time of the disaffirmance at least, the master could in no sense be said to have a legal right to services which by the terms of the contract were thereafter to be rendered.

Considering the written assent of the minor, then, as a contract with the plaintiff to render the service, it was in law a contract to which the minor had the right to put an end at any moment. It was in substance as though it had contained a stipulation to the effect that the minor was at liberty to leave the service of the plaintiff at his pleasure. By leaving it he clearly manifested his intention not to be bound by it, and it became null and void, and the plaintiff could have no claim under it to any future service.

The claim of the plaintiff to the services of the other minor, Mary Cooper, rests upon a parol gift of the child to him by her parents a short time previous to their death.

The views which have already been suggested are decisive of such claim as a legal right against the minor. The gift during the lifetime of the father, upon the authority cited, would merely amount to a delegation of the parental power for the time, subject to be revoked at the pleasure of the father. It is unnecessary, however, to hold this doctrine in the present case, because, whether it could or not be revoked by the father in his lifetime, it is clear, both upon principle and authority, that it was valid only to the time of his death. At the time when the minors were enticed away from the plaintiff, then, neither of them was owing him a service arising from any contract made by their father, or by themselves, binding them to render such service, and consequently, as against the minors, he was not legally entitled to their future services for any period subsequent to the time when they left his employment.

But it is said that the relation of master and servant in fact subsisted at the time between the plaintiff and them, and that this is sufficient to entitle the plaintiff to the redress which he seeks. But upon this point we think the distinction suggested by the counsel for the defendant in the argument may well be sustained. That the relation of servant defacto is sufficient to give to the master a right of action against one who deprives the master of the services by violence done to the servant, as by an assault or a forcible abduction of the servant; or, if a female, by seducing her, the relation not being terminated as between the master and servant by the acts complained of, cannot be doubted. The gist of the action in all such cases is the loss of the service while the relation of master and servant continues, and the service is recognized by the servant as due, in virtue of a contract by which he is bound in law, or which, being voidable, he elects to consider as binding, and had not avoided when the lost service was owing. In such case it is not the right of a third party to deprive the master of the services, even if they were due and owing to the master, only because the servant elected to consider them so due and owing. It is enough to subject him to liability, that the relation of master and servant, which they had established between themselves, and which they were content to treat as requiring th.e service, had not been terminated when the loss of service occurred.

But in this case the grievance of which the plaintiff complains in fact, is the loss of service after the period when the relation of master and servant was terminated by the lawful act of the servant, in leaving the master and repudiating the contract. The alleged unlawful act of the defendant consists in his persuading the minors to put an end to the period of service, as by the character of their contract, if it is to be considered a contract, or by the nature of the arrangement, whatever it was, under which their services were rendered, they had a legal right to do. For doing this the law gives no right of .action to the plaintiff, for the reason that by it no legal right of his has been invaded.

The principle involved in the decision of the case of the Glass Manufactory v. Binney & al., 4 Pick. 425, is applicable here. That was an action for enticing away from the employment of the plaintiffs certain workmen skilled in the manufacture of glass. The workmen were in the plaintiffs’ employ down to the day when they went into the defendants’, under an agreement that they would not leave the service of the plaintiffs without giving two weeks previous notice. Inducements were held out to them by the defendants to quit the plaintiffs and engage in the service of the defendants. Having given the notice, they continued to work for the plaintiffs for the two weeks following, and then entered into the service of the defendants. In delivering the opinion of the court, Wilde, J., says, the defendants had a legal right to make a contract with the plaintiffs’ laborers, to take effect after the expiration of their time of service with the plaintiffs; and he then refers to the case of Nichols & al. v. Martyn, 2 Esp. 732, in which he says the law is laid down correctly by Ld. Kenyon, that to induce a servant to leave his master’s service at the expiration of the term for which the servant had hired himself, although the servant had no intention at the time of quitting his master’s service, is not actionable. To hold out inducements to the servant to terminate the period of service, where, by reason of the voidable character of the contract under which the service is rendered, this may lawfully be done by him at his pleasure, may deprive the master of services which, but for the inducements so held out, he would probably have received; but this is not a loss of services to which he had right or even the color of right. It is, therefore, a loss to the master only in the' sense that the benefit of the service has not been continued to him by the servant having the right to -withhold it, to the extent that it otherwise might have been.

There is no recognized principle upon which a third person can be held liable in law as a wrong-doer for holding out inducements to the servant thus to exercise his legal rights ; and we are not aware of any ground for extending to cases of this character the principles of law applicable to the case of the loss of

service rightfully owing to the plaintiff through the wrongful act of a third person.

It is not improbable that instances often occur of injudicious intermeddling with minors, situated as were these, to the prejudice not only of the party acting the part of a parent to the minor, but also of the minors themselves. This may possibly be such a case. But if it be, it cannot change the principles by which the right of the plaintiff to the services of the minors, and the legal liability of the defendant in connection with them, are to be tested. The true remedy for such ill-judged intermeddling is not to furnish ground for a new class of lawsuits, seeking for damages on account of it, by holding it to be an invasion of the legal rights of the master when his proceedings in attempting to secure to himself the services of the minors have been of so loose a character as to give him in law no right to their services, but rather to hold strictly to the established principles applicable to such cases, and thus compel parties who would guard against such intermeddling, in making their arrangements, to secure to themselves the labor and services of the children of other parents, to resort to the plain and safe mode prescribed by the statute — indentures, executed with the formalities required to constitute a statute apprenticeship, by which the just rights of both minor and master are fully secured.