Ziegler v. Fallon

• Decision Date: 20 December 1887
• Citation: 28 Mo.App. 295
• Parties: NICHOLAS ZIEGLER, Appellant, v. JOHN F. FALLON, Respondent.
• Court: Missouri Court of Appeals

28 Mo.App. 295

NICHOLAS ZIEGLER, Appellant, v. JOHN F. FALLON, Respondent.

Court of Appeals of Missouri, St. Louis.

December 20, 1887

APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Affirmed.

A. A PAXSON, for the appellant: The defendant, having disclosed an irresponsible and impossible principal (if any) his liability was not that of agent, but was personal. Blakely v Bennecke, 59 Mo. 193; Heath v. Goslin, 80 Mo. 316; Story on Agency, secs. 281, 282; Hovey v. Pitcher, 13 Mo. 191; Thompson v. McCullough, 31 Mo. 224; McClellan v. Parker, 27 Mo. 162; Lapsley v. McKinstry, 38 Mo. 245; Schnell v. Stephens, 50 Mo. 375; Einstein v. Holt, 52 Mo. 340; Ferris v. Shaw, 72 Mo. 445. Our statutes provide that there must be a living master, and no indenture of apprenticeship, or service made in pursuance thereof, shall bind the minor after the death of his master, but the apprenticeship or service shall be henceforth discharged and the minor may be bound out anew. Rev. Stat., sec. 4085.

T. J. ROWE, for the respondent.

OPINION

THOMPSON J.

This action is brought to recover a balance due upon a written contract, not under seal, by which the plaintiff hired his minor son to the defendant for the term of three years, at stipulated wages, to learn the trade of a painter. The contract appears to have been drawn upon a printed mercantile bill-head used by the defendant, and is in the following language:

" St. Louis, Mo., ...... 188..

M ...............................

To Wesley Fallon, Dr.

Builder of

All kinds of carriages and buggies.

Repairing neatly done to order.

Terms cash. Tenth and St. Charles Streets.

St. Louis, May 1, 1882.

This indenture, made this first day of May, in the year of our Lord, 1882, by and between Nicholas Ziegler, of St. Louis, and Wesley Fallon, or John F. Fallon, manager, of St. Louis, witnesseth, that the said Nicholas Ziegler, in accordance with the consent and wishes of his son, Otto Ziegler, aged about sixteen years, who hereby signifies his assent by this indenture, does bind and intrust said Otto Ziegler to the said Wesley Fallon, or John F. Fallon, manager, to learn the art and trade of painting in the carriage-shop of said Wesley Fallon, and with him as an apprentice to serve from the day of the date of this indenture for a term of three years; and that said Otto Ziegler shall truly and faithfully serve him during the term aforesaid, and shall give and devote to him his time and labor, and shall conduct himself in a temperate and industrious manner; and that said Wesley Fallon, or John F. Fallon, manager, shall pay said Otto Ziegler, three dollars and fifty cents each week for three years; that he shall truly and faithfully instruct him in the art and trade of painting, to the best of his knowledge and skill, and as far and as fast as said Otto Ziegler will show himself capable of learning the same; and the said Otto Ziegler shall leave as a deposit one dollar per week for the first year of his apprenticeship, fifty cents per week for the second year, and the third year to be paid the full amount each week and at the expiration of his apprenticeship; that he shall not forfeit any of said deposit, unless he wilfully violates this contract. That in case of discontinuation of business or removal from state, he shall be paid as far as due; and in case of any failure on the part of Wesley Fallon to fulfill this contract, he is to pay to Otto Ziegler the amount due him from weekly deposits. And it is further agreed to by Nicholas Ziegler, and his son, Otto Ziegler, that any time lost by said Otto Ziegler during the time that he is serving his apprenticeship shall be made up by said Otto Ziegler after he has served his apprenticeship and at his apprenticeship wages.

JOHN F. FALLON, Manager.

NICHOLAS ZIEGLER."

It appears that, at the time when this contract was made, Wesley Fallon was dead. The plaintiff proved performance of the contract on his son's part, by the labor of his son during the entire term, and the nonpayment of the balance sued for. The court thereupon gave an instruction that the plaintiff could not recover.

It will be perceived that, by the terms of this contract, the earnings of Otto Ziegler, the minor, which John F. Fallon, manager, agrees to pay, are to be paid to the minor himself, and that the contract contains no stipulation that such earnings shall be paid to the father, Nicholas Ziegler, who is the plaintiff in the present action. A father may emancipate his minor child, so as to estop himself, as against a third person, from recovering the wages of the child. Soldanels v. Railroad, 23 Mo.App. 516. Where the father gives his minor child his time, as it is sometimes called, or allows such minor child to retain the wages of his labor, such wages become in law the property of the child, and not the property of the father. Dierker v. Hess, 54 Mo. 246. By the terms of this contract the father, in the most distinct and unequivocal manner, relinquished all right to the earnings of his son, Otto, in favor of the son; and the right to sue for and recover the same, if such a right exists at all, is in the son and not in the father. This action should, therefore, have been brought by the son, and is not properly brought by the father, he having no title to the wages sued for. On this ground the peremptory instruction that the plaintiff could not recover was properly granted.

But as the entire argument presented in the case on behalf of the appellant has been directed to the question whether, under the contract, the defendant, John F. Fallon, is liable at all, we may possibly suppose that this may have been the ground on which the instruction for a non-suit was granted and in view of the possibility of...