Jonathan Weeks vs. Nathaniel Holmes & others, 12 Cush. 215

Shaw, C. J. Supposing the defendants liable for the earnings of the plaintiff’s minor son, employed by them without his consent, which does not seem to be much contested, the question is still open on the facts agreed, what these earnings were. This is an action of contract on the implied promise by the defendants to the plaintiff, a promise implied from his relation of father entitled to the earnings of his son. Nothing can be claimed in this action, for any supposed wrong in seducing the plaintiff’s son, or employing him without his consent.

After the service was done, the father steps in with his legal claim, denies the authority of the son to receive his own earnings, and in effect says to the defendants, that which you would have been bound legally and equitably to pay him, had he been of age, or otherwise competent to contrae!, I require you to pay me. To this extent, his claim is recognized, and no further. In determining what that allowance shall be, the question is, not what the son would have earned for the plaintiff, but what the son earned of the defendants, in their service. Quantum meruit ?

In considering what he did in fact earn, it appears to us, that the universal custom of the business, to pay by a lay or share, instead of monthly or other wages, is competent and proper. It is not contrary to express contract, as in the case cited of Homer v. Dorr, 10 Mass. 26; nor in violation of duty and public policy, as in the cases of Hall v. Gardner, 1 Mass. 172, and Randall v. Rotch, 12 Pick. 107.

Upon the facts, the court are of opinion that the plaintiff is entitled to a fair share or lay ; and this, we think, must be fixed as a one hundredth part; not because the minor agreed for it, but because it is shown to be a reasonable and fair lay, and, therefore, a just measure of the value of the services sued for. From this is to be deducted the advances of the defendants, for outfit and necessaries on the voyage, warranted by the like universal usage of the business ; and as these exceed the lay, there are no net earnings to be recovered.

But, though the defendants had a right to charge these advances against the son’s earnings, because necessary to enable him to perform the voyage and earn any lay, yet in our judgment they were not chargeable to the father. There is nothing to show that the plaintiff had not made ample provision for everything necessary for his son’s support and comfort. These advances were not made on his credit express or implied ; on the contrary, they were made without his consent, to a son in a state of insubordination. There can be no judgment against the plaintiff, for the claim in set-off.

Judgment for the defendants for costs