Dwyer v. Rathbone, Sard & Co. — 5 N.Y.S. 505

Majority

p. 505

Dwyer v. Rathbone, Sard & Co.

(Supreme Court, General Term, Third Department.

May 27, 1889.)

Headnote

1. Master and Servant—Contract of Hiring—Apprentice.

A contract by which a mother agrees that her minor son shall labor for a fixed period at stipulated wages, the employer reserving the right to discharge him if he should be found incompetent or unsatisfactory, does not become an indenture of apprenticeship merely by being so styled by the parties.

3. Same—Compensation.

If the contract were void, and the mother should thus become entitled to receive whatever the services were worth, instead of the contract price, she could not recover full journeyman’s wages, though the boy’s work was equal to that journeyman’s work, if it appear that the boy had been rendered capable of doing such work by the instruction given him by his employer, at the cost of time and material.

3. Same.

After the boy’s discharge, before the termination of the agreed period, for cause, the mother cannot recover an additional 10 per cent, of the wages agreed upon, promised upon the condition that he should faithfully and satisfactorily perform his duties for the term fixed, as its payment depends on the employer’s decision at the end of the period fixed on the question of the boy’s faithfulness.

4. Signature.

The signature of an officer of a corporation to a contract made in its name, with his official designation attached, placed thereon before the contract was signed by the other parties, though written under the printed word “Witness, ”is evidently intended as a signature for the corporation, and will bind it.

Appeal from Albany county court.

Action by Deborah Dwyer against Rathbone, Sard & Co., a corporation, to recover for the services of her minor son. A contract between the parties was shown, fixing the length of service and amount of compensation, but the plaintiff alleged it to be void. Judgment for defendant, and plaintiff appeals. For opinion on an appeal from an order in the case, see 2 ÍT. Y. Supp. 170.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

Barnwell B. Heyward, for appellant. Stedman, Thompson & Andrews, for respondent.

The signature, “Robert Shaw Oliver, Superintendent, ” although placed under the printed word “Witness,” was plainly the signature of an officer of the defendants, and intended to bind them. It was put to the instrument before the plaintiff and her son had signed, and so was clearly not intended as a witness to their signature. We see no reason why it was not binding on the defendants. The instrument was a contract of hiring services, not an indenture of apprenticeship; and the indorsement did not change its character. That is to be determined by the contracts of the instrument, and those cannot be mistaken. It was acted upon by the parties; and, so far as they acted upon it, it would control their rights, even if it did not bind them to continue to act according to its terms. It is not disputed that the plaintiff was paid for the services of her son according to this contract for the time during which he worked for them. Such payments satisfied their obligations to her.

The plaintiff claims that the contract was void, and therefore that she is entitled to recover the value of the services; but such value is not shown. She was to receive, according to the contract, a certain proportion of the wages paid to journeymen; and she claims that as journeymen are paid according to the perfect work accomplished, the labor of her son, measured in that man

p. 506

ner, was worth as much as a journeyman’s work. But this is not correct. Her son was taught by an instructor; so that the perfect work accomplished by him was the result, not of his labor alone, but also of that of the instructor. Thus his work was not worth journeyman’s work, measured by this rule. Furthermore, the more imperfect work was done, the greater the loss of material to defendants. Therefore, even if the contract were void, and she were entitled to recover the value of her son’s labor, the evidence given in the case does not show it. That shows only the value of the perfect work done of her son, which we have seen was done by the aid of an instructor, and perhaps at the waste of considerable material, space, and time.

As to the 10 per cent, which was conditionally promised, she can make no just claim to .this. The payment of that was dependent upon the j udgment of the defendants as to thefaithf ulness of the labor done by her son. She trusted to them to decide whether at the end of the three years her son’s conduct would entitle her to receive this. The three years had not elapsed when this action was commenced; and the defendants have not decided that her son’s conduct •deserved this additional compensation. We do not see that there was any question of fraud to submit to the jury. There is no evidence that plaintiff was deceived; no evidence that she thought she was entering into an indenture of apprenticeship, or that the defendants so informed her. Her receipt of the money, and her boarding and caring for her son, are evidence to the contrary. The case was properly disposed of by the court, and the judgment is affirmed, with costs. All concur.