
    HIATT AND JEAN vs. J. A GILMER & AL. EX’RS. OF JAMES McNAIRY.
    Where a boy was bound by his father as an apprentice to a co-partnership, to be taught a mechanical trade, and the father took away the boy before his time had expired, and soon afterwards the copartnership was dissolved, the period of apprenticeship being still unexpired, Held, by a majority of the Court, Ruffin, C. J. dissenting, that the persons composing the co-partnership could only recover damages for the loss of the boy’s services during the time the copartnership continued, and not afterwards.
    Appeal from the Superior Coui’t of Law of Guilford County, at the Spring Term, 1846, his- Honor Judge Settle presiding.
    This was an action of assumpsit, brought by the plaintiffs against the defendants, as executors of James Mc-Nairy deceased. The plaintiffs proved that they were partners in carrying'on the business of harness and saddle-making in the town of Greensboroughthat the defendant’s testator contracted with the plaintiffs to take, as an apprentice, one of his sons, and to teach him the art and mystery of harness and saddle-making; and that he was to remain with the plaintiffs five years ; that, in pursuance of the said agreement, the testator’s son went into the employment of the plaintiffs about the month of March 1837, and remained there until the latter part of December 1839, when his father took him home and sent him to school.
    The defendants offered evidence to prove that the plaintiffs dissolved partnership, sometime early in the year 1840, the precise time not distinctly established.
    The defendants’ counsel insisted, that, although the father might have taken away his son before the term of apprenticeship had expired, yet, if the plaintiffs dissolved partnership before the expiration of that term, they could only recover damages up to the period of dissolution. The Court entertained a different opinion, and charged the j ury, that, if they should be of opinion that the father made the contract, as proven, with the plaintiffs, and took his son away from the plaintiffs contrary to their wishes and before the partnership was dissolved, they were entitled to recover damages for the loss of the services of the son, for the unexpired time for which he had been bound by his father, although the partnership between the plaintiffs had been dissolved before the end of the term of service. There was a verdiet according to these instructions, and from the judgment thereon the defendants appealed.
    No counsel in this Court for the plaintiffs.
    
      Morehead, for the defendants.
   Daniel, J.

This was an action of assumpsit, brought to recover damages, for the breach of the special contract stated in the case. The plaintiffs’ declaration avers, that they had taught the boy, and were at all times ready and

willing to teach the said boy according to the terms of the contract; but that the defendants’ intestate, in breach of his said contract, had taken his son from the plaintiffs’ service, to their damage, &c. The evidence on the trial showed, that the plaintiffs were partners in the business of saddle and harness making. The partnership was by them dissolved, but a very short time after the boy left the shop. And there was no evidence in the case to support the allegation in the declaration, that they were at all times, during the time of the contract, ready and willing to teach the boy in the business of harness and saddle making. The contract had certainly been broken by the defendants’ intestate. Then what did the plaintiffs offer to shew in evidence? That they had been injured beyond the loss of the services of the boy up to the dissolution of the firm. The boy was not partnership effects to be divided. The plaintiffs offered no evidence, that they jointly were in a situation to instruct the boy, after the dissolution of the firm. They failed to prove an essential part of their declaration, to-wit, that they were at all times ready and willing to instruct the boy. This was a condition precedent in the special contract, which, it behooved the plaintiffs to make out satisfactorily to the jury, had been by them performed, or that they had been always ready to perform. Where was the quid pro quo, for damages ulterior to the dissolution? There was no consideration for such ulterior damages. And the1 jury would not probably have given them, if the Court had left them uninstructed on this point. There is no rule of law or ethics, that we know of, that could authorize the Court to tell the jury, that the plaintiffs were entitled to recover damages for the loss of the services of the hoy, during the time they, the plaintiffs, were unable by their own act to teach and instruct him in the business of saddle and harness making. If the plaintiffs had produced evidence, that they jointly were at all times ready and willing to instruct the boy, notwithstanding the dissolution of the firm, the verdict might then be right. Bat no evidence was produced by the plaintiffs, on whom the onus lay, to shew, that the condition precedent, mentioned in the contract, had been performed in extenso, nor was any readiness by them to perform it shown. We think that there must be a new trial.

IIuffln, C. J.

The conduct of the defendants’ intestate was a wanton and gross injury to the plaintiffs, who had received his son and faithfully maintained and taught him for two years. After they had incurred that expense and trouble with him, until he had, probably, learnt enough to make his services of use and value, the father took him away, without finding the least fault with the plaintiffs. If any conduct can be inexcusable, it appears to me that such as that is, and that it ought to be left to the jury to give, for such a breach of contract, all the damages the plaintiffs really sustained: if not the full value of the boy’s services for the residue of the period of apprenticeship, at all events to reimburse the plaintiffs for their expenditure of money, diet, lodging and apparel upon him, and instruction to him. Surely nothing less than that can be just. But I do not see any reason why the plaintiffs should not recover the value of their apprentice’s labor for the unexpired term. It is opposed by the technical reason, that the contract was made with the plaintiffs as partners, and that they cannot recover for the period after they ceased to be partners ; and in support of the position, the counsel cited the case of Weston v. Barton, 4 Taunt. 673. But that case is really the other way. It decides, that a bond, given to a banking-house bearing a particular name, ceases to be obligatory as to transactions with the house after an old partner goes out, or a new partner comes in, though the name of the firm continues the same, and the old assets and responsibilities were to be turned over to the new concern. And the reason, given by Sir James Mansfield, is, that though it is generally considered that sucb contracts are made with the firm, as a kind of political body, yet in law they are made with the individuals composing the house. That case is an authority for the plaintiffs. The truth is, that the unincorporated partnerships are mere associations of individuals, and their contracts are made jointly by and to the partnérs, as natural persons; and, hence, if a note be made payable to a firm, it is to be sued on, not in the name of the firm, but precisely as if it were payable to A, B, C, the individuals composing the firm. Therefore, this bargain was made with Joab Iiiatt and William F. Jean, the plaintiffs, and not “Hiatt and Jean,” as an ideal being. If the latter were the case, the plaintiffs could not recover at all, any more than a corporation, after the expiration of the charter. Such being the law, I am at a loss to discover why the plaintiffs may not recover the whole value of the lad’s services. For the contract being with these as natural persons, and to be so stated in pleading, those two men were just as capable of teaching the apprentice the trade of a saddler, and profiting by his labor, after they ceased to be partners, as before. Suppose the one to have carried on a shop, and the other to have attended to instructing the apprentice — they would have complied as literally with their engagement, as if they had continued to be partners. But why should they shew any readiness in that respect ? The defendant’s intestate had taken away his son and broken the lohole contract, before they dissolved. After he did so, he had no right to insist on the plaintiffs to renew it, or to execute it specially for the residue of the terim By the waste of his time, the boy’s capacity for service might have been impaired; and, at all events, his obedience and submission to discipline were rendered more doubtful. Suppose the father had been sued in tort for enticing away the plaintiff’s servant: can there be any doubt, that the jury might give all that the plaintiffs could have been profited by the apprentice’s services. In Gunter v. Astor, 4 Moore, 12, such an action was brought 'by a piano forte maker, and it was proved that one of the defendants had invited the plaintiff’s workmen to dinner, and induced them to agree to -Work for the defendant at advanced wages; and, although the workmen of the plaintiff were hired, not for a term, but by the piece, yet upon its being proved that the plaintiff’s business yielded him, with those men in his employment, £800 a year, the jury gave £1600 damages, under instruction from the Judge to assess what damages the defendant’s conduct occasioned the plaintiff. Upon a motion in Bank for a new trial, it was refused ; and the Court remarked, that it had been said, the plaintiff only 'sustained damages for the value of half a day’s labor of his workmen, when they visited the defendant’s ; but it is not for the Court to ascertain the precise damages he is entitled to ; and that was most properly left to the jury. So I think, that here it should be left to the jury, to estimate the actual loss the plaintiffs, as natural persons, have sustained, and that, if the jury should give such a sum as would tend to induce men to observe their engagements with good faith, and not to violate them through mere self-will and wantonness, it would subserve the purposes of justice and morals; and the Court ought not to be disposed to disturb it. Wherefore I should think this judgment ought to be affirmed.

Pee Cueiam. Judgment reversed and a new trial awarded.  