Majority
p. 274James against Le Roy, Bayard, and M'Evers. ALBANY, August, 1810.
Headnote
Where an ployed,* without or^onsen't ofiSa ter^entitied to all his earnmgs, whether the person who era-ploys him, did, or did not know apprentice. But s’hired servant! roust have*°notice of his being the servant of another,to make him answerable.Where A. an away^from h’is ro*er’an(iA'entered on board of a ship, and signed articles, by which he engaged to perform, the whole voyage, and to in fcase1Sefadebezziement; during the voyage, he deserted, having been guilty of embezziement; it was held, that the master was entitled to recover his whole earnings, from the shipowners, during the time he was on board, without any deduction for wages advanced to the apprentice, though neither the owners nor captain knew that he was an apprentice.
THIS was an action of assumpsit, for work and labour of the plaintiff, performed by his apprentice, in navigating a ship, called the Maryland, belonging to the defend-ants? on a voyage from New-York, round Cape Horn, whence to Canton, and back to New-York. ’
The cause was tried before Mr. Justice Yates, on the 14 th day of December, 1809, at the New-York Sittings, The apprentice, Thomas Shea, was bound to the plaintiff, by indentures, for a term, of which about two years were unexpired, at the commencement of the voyao-e ai30ve mentioned, Shea being then of the age of ° . nineteen years. Shea shipped on board the vessel, for the . . , voyage, as an ordinary seaman, m August, 180S, and the wages were about twelve dollars per month. The ship sailed on her voyage, in September, and Shea continued board, until some time in the winter of the year 1807, ’ . wben the ship, being on the coast of California, and he 1 . having been sent on shore, with the carpenter, to repair . , , , . , , , a boat, belonging to the people with whom they were trading, after working on shore two or three days, they disappeared, and did not, afterwards, return to the ,0™, *
The defendants then produced the shipping articles , ' _ , r of the vessel, for the above described voyage, and ot
p. 275
íered to prove that the same had been duly subscribed by Shea, as an ordinary seaman; that they were in the form prescribed by the act of- congress; that the seamen thereby bound themselves to perform the whole voyage, and agreed, in case of desertion or embezzlement, to forfeit all their wages.
The defendants also offered to prove, by the ship’s logbook, which was produced, and by oral testimony, that Shea deserted the ship, on the coast of California, taking with him all the carpenter’s tools, belonging to the ship, and that he had coinmitted various acts of embezzlenient during the voyage ; but the evidence was objected to by the plaintiff’s counsel, and overruled by the judge, on the ground, that Shea, being an infant, could not bind himself by the shipping articles, nor by any act of his, defeat the plaintiff’s right to recover a reasonable compensation for his actual services.
The defendants also offered to prove the payment of divers sums of money to Shea, in advance, and on account of wages, whilst on board the vessel; but this evidence was also objected to, and overruled, upon the same prineipleo
The plaintiff’s counsel produced a newspaper, printed in New-Tork, on the 3lst day of August, 1805,by which Shea was advertised by the plaintiff, as a runaway apprentice, and one cent was offered for his apprehension ¿ but no evidence was offered of any knowledge in the defendants, of the advertisement, or of the fact oí Sheds being an apprentice. The mate, and other persons ón board, being interrogated to this point, declared that they had no such knowledge ; but two of the seamen declared, that there had been something said among the crew, respecting Sheds apprenticeship, after he had been some time at sea.
It appeared that Shea was shipped on the 17th day o£ August/ and that for three weeks previous to the ship’s sailing, he was daily on shore, being one of the crew a/- >
p. 276
tached to the jolly-boat, which was going backward and forward from the ship to the wharf; that the ship lay in the Hudson river, and the plaintiff resided on the East River.
It further appeared, that Shears services, whilst he continued on board the ship, were worth about six dollars per month, and that he remained on board about 17 months.
Upon this evidence, the judge directed the jury, that the plaintiff was entitled to recover for the actual services of the apprentice, according to their fair value, without refereee to the contract, and without deduction, on account of any payments made to him j and that 17 months appearing to be the time, and six dollars j&ermonthj the value of those services, the plaintiff was entitled to recover at that rate. The jury, accordingly, found a verdict for the plaintiff, for 102 dollars.
A motion was made, on the part of the defendants, for a new trial, which was submitted to the court, on the above case, without argument.
This is the case of an apprentice, employed by the defendants, without the consent or knowledge of his master. The master is entitled to his earnings, whether the defendants did, or did not know that he was an apprentice. (1 Vez. sen. 83. 48. 1 Salk. 68. 1 Comyn on Contracts, 224, 225.) In case of a hired servant, the employer must have notice, to make himself answerable; (2 Lev. 63. 1 Black. Comm. 429.) The decision, at the circuit, was correct, and the motion for a new trial is denied.
Rule refused.[1]
(a) (a) See Hurg. note (1). Co. Litt. 117. a.