
    Addison County,
    January Term, 1827.
    
      Daniel Chilson vs. Solomon Philips.
    
    in an action brought to lecovet for work and labor performed by the minor son of the plaintiff, it ie competent for the defendant to prove, That the services claimed for were performed by the plaintiff's eon under a special contract mad© by the defendant with the son, and that the terms of the contract had not been •complied with by the son.
    ' In order to show that the minor son was authorised by the father to make contracts in relation to his services, it is also competent for the defendant to prove, That the father previous to the hiring of the son to the defendant, had permitted his son to hire himself out (to service to divers persons, to perform the services stipulated for in such contracts, and to settle and adjust the claimsarising out of such contracts; and that such had been the practice of the father respecting his son’s services.
    This was a writ of error to reverse a judgment of the County Court in an action of assumpsit in favor oí Philips against Chilson, declaring for work and labor performed by a minor son of the plaintiff. The general issue was pleaded and tried by the court by consent of parties. The issue being found in favor of the plaintiff below, the defendant tendered and was allowed to file his bill of exceptions upon which this writ of error was brought.— The exceptions were as follows :
    “ In this cause after issue joined the plaintiff in support of the is- “ sue on his part,gave in evidence in substance,that in the year 1822 “ the plaintiff’s son, a minor,served the defendant as a hired man “ on the defendant’s farm for a certain period, and rested his case.
    “ The defendant then offered in evidence the following facts, to “ wit: — That the services claimed for were’performed by the plain- “ tiff’s son, under a special contract made by the defendant with “the plaintiff’s son, both as to the time of service and the mode of “ paymentjand that the terms of the contract had not been perform- “ ed by the plaintiff’s son, in such manner as to entitle either the “plaintiff or his sonto recover for his services. And further, in “ order to show that the son was authorised by the plaintiff to make “ contracts in relation to bis services, the defendant offered evi- “ dence tending to show, that the plaintiff had in divers instances, .“previous to the hiring'of said son to the defendant, permitted his “ said son to hire himself out to service to divers persons,ito make £ccciíilfracstfá inrdktiorptoMs.sem;c'<?s',to perform “the services stipulated.for in,such contracts, '“and to settle and adjust the claims arising out of such contracts; “ and that such had'been the practice of the plaintiff’relative to the “ services of his son.
    “To this- evidence the plaintiff objected, and the court- rejected “ the same, and decided that it was incumbent on tins defendant “to prove tire assent of the plaintiff to this particular contract.. To “ whidl decision the defendant excepts,” &e.. The errors assigned were the exclusion of tire evidence offered, and the eontr mon erfor.
    
      Phelps and Bradley, for the plaintiff in error.
    The evidence offered ánd rejected was pertinent to. prove an authority in the son to make contracts relative to his services.— When a servant is permitted by the master to make contracts generally in relation to any particular subject, the law implies an authority; and the general practice of the master is always admitted for this purpose. — Stra. 605, hazard vs. Treadwell. — Reeve’s D. R. 368. tí the son in this case was permitted to make Contracts from time to time relative to his services, and such contracts were sanctioned by the father,it was holding out to the world such evidence of a previous authority, as would render it fraudulent itl die father to avoid the contract in question.
    
      Holley and Needham, for the defendant in error.
    To avoid tile claim of the father it was necessary to prove his assent to the particular contract in question. The privilege of minors is such, that they cannot make contracts which have a binding force,except such as grow out of the necessity of the case. Swift’s Dig. 51. — Reeve’s D. R. 227. — 6 Johns. 274.
    Tlie right of the parent ol‘ guardian to recover for the services of his child or ward is among tile number of well settled principles ; and the fact, that the father had recognised other contracts of his son, can have no effect upon his rights in this case, nor deprive the minor of his privilege. — Reeve’sD. R. 290.— Swift’s Dig. 42. — 1 Sal7c. 68.
   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.  