Abigail W. Farnsworth vs. Horace P. Wakefield, 12 Cush. 514

By the Court. The contract of the defendant to take the plaintiff’s daughter, and support and educate her as his own, was made with the father of the child, and according to the spirit of the statute, respecting the binding out of minors, as of parties or servants, all the benefits of the contract, by way of compensation for services, were to enure to the minor herself. There being an express contract by the defendant, to make compensation for the services of the child, there was no implied contract to pay either father or mother for the same services. Stone v. Dennison, 13 Pick. 1.

This state of things continued till 1848, when the mother, the plaintiff in this suit, obtained a divorce á mensa et thoro, and the custody of the daughter was assigned to her. Supposing, and this is the most favorable view of the case for the plaintiff, that by force of this decree she might have taken the actual control and custody of the daughter, and providing for her support, would be entitled to her earnings from that time, she did not do so. She permitted the daughter to remain with the defendant, under the old agreement, till he sent her home, when, of course, the service ended.

There was, therefore, no implied promise by the defendant, for services performed after the divorce and assignment of the custody of the daughter, to the plaintiff. If, as the plaintiff alleged, the defendant had grossly failed to perform his contract or furnish support and education to the daughter according to his agreement, whether Imown or unknown to the plaintiff, whatever remedy, either the mother or daughter might have, such failure would raise no implied promise, on the part of the defendant, to the mother for past services, performed under an express and different contract.

We think the direction was right, and that the verdict must stand. Exceptions overruled.