Beaver, Bare & Co. v. Bare

Mr. Justice Clark

delivered the opinion of the court, October 2d 1883.

The exercise of parental authority is not necessarily for the profit of the parent, but for the advantage of the child ; the duty of service by the child, being deemed necessary to the proper exercise of parental authority, for its own good. Although we still recognize the right of the father to the personal services of his children, that right is simply incidental to the duty of the father to discipline and direct them ; his right to personal custody and personal service are secured to him, therefore, in order that through them, prompted by natural affection, he may successfully impart to them habits of industry, methods of thrift and the means of personal success in life. Children are therefore not the mere servants of the father, nor is he bound to work them, as such, for the benefit of his creditors : McCloskey v. Cyphert, 3 Casey 220; he may let them go fine from his service, whenever he chooses, no matter whether he be solvent or insolvent: Holdship v. Patterson, 7 Watts 547 ; Brown’s Appeal, 5 Norris 524. The right to their service, being merely for their good, whenever the father finds their interest, or his own, better subserved by their emancipation, he can liberate them. This emancipation may be as perfect when they live together, under the same roof, as if they were separated; for although the father thus relinquishes his right to their services, as a means of discipline, the duty of discipline still remains, and this duty can be better exercised in the family than elsewhere: McCloskey v. Cyphert, supra; Rush v. Vought, 5 P. F. S. 437.

In Brown’s Appeal, 5 Norris 524, this principle was fully recognized, and.it was there held, that the services of a son, rendered during minority, under a contract previously made with his father, was a valid consideration for a judgment confessed, as similar services rendered under a contract made afterwards, and that both, or either, were sufficient to sustain the judgment even as against creditors. Thus then it appears, that a father may not only relinquish his x-ight to the wages of his minor son’s laboi', but he may, even as against his creditors, bind himself to pay his son for such services, pursuant to a coixtract previously made. If, however, the contract had not been made previous to the service, neither could the son recover for *63 his labor, nor would a voluntary judgment, given by an insolvent man, on such a consideration be of any validity as against creditors: Hack v. Stewart, 8 Barr 213.

Therefore, we infer, that whilst the right of a father to the actual custody and services of his minor children, is not, as such, an absolute or vested right, yet his right to wages for their labor is absolute and vested, if that labor has been performed without any previous act, agreement, or understanding otherwise. Of course he may, without intent to hinder, delay or defraud creditors, assign or relinquish this debt as any other. In the case of Kauffelt v. Moderwell, 9 Harris 222, we held, that when a minor is permitted by his father to make his own contract for services, it is fair to presume that he is allowed also to receive the wages for himself, and, so the law implies; the contract, until a contrary purpose appears; but it is not so when the father makes the contract. “ He has the right to command the services and receive the wages of his minor son, and when he makes a contract for them, there is no ground for the presumption that he is acting as an agent of his son, or that the other party knows it, and intends the contract to be with his son; and therefore the law cannot imply that such was the contract, as matter of fact, or impose it as a matter of duty. The private arrangement between the father and son,in this case, was a matter of their own, which constitutes no part of the transaction, and which is indeed revocable at the father’s pleasure. To allow the recovery by the son in such a case, might defeat just claims of Kauffelt against the father.”

Was there any relinquishment by John Bare of the services of his son, previous to his entering the employment of this firm, or at any time during its continuance, or afterwai’ds, pi’ior to the assignment? If not, then the father’s right to these wages was vested and absolute, at the assignment, and that x-ight, passing under invested in his assignee for ex-editors. The paper, dated 30th Octobex-, 1882, is of no avail, for the purpose intended; it came too late ; that which he released or relinquished to his son, he had previoxxsiy transfei-x-ed to his creditors. This case shoixld have been submitted to the jux-y, on the question of exnancipation, which was px-actically withdrawn from the jux-y in the trial below. “No evidence of that sort,” says the court, “ was offered, so far as his wages was concerned, that he was allowed to x-eceive his wages himself, I saw no evidence at all of that, in the case, the wages thex-efox-e at the time they were earned wei-e by law due to the father.”

This was a practical withdrawal fx-om the jury of that branch of the case ; there was, we think, some evidence for the jury on this question. The account for these services was in *64 the name of the son, not in the name of the father. No credit was given to the father for them, and the books were open to all the members of the firm. The plaintiff’s charge for labor embraces two years and nine months, in which time there was no proof that the father claimed the benefit of them, whilst the son received all that ever was paid; he continued to labor after the assignment was made during minority, and received to himself wages from the assignee. These circumstances, taken with the testimony of the son, were certainly proper matters for the consideration of the jury; their weight, when taken with the fact that the contract was made by the father, and with other circumstances in the cause, was for the jury. What effect they might have had upon the minds of the jury is not for us to say, hut we think tire court was in error in saying that there was no evidence on the subject.

The judgment is reversed and a venire facias de novo awarded.