more fully in the second part of this work, in the chapter upon the statute of frauds. A nice distinction is taken in some cases between the presumptions which arise where service is rendered to a stranger, and where it is rendered to near relations. In general, wherever service is rendered and received, a contract of hiring, or an obligation to pay will be presumed. (j) But it is said not to be so well v. Getman, 2 Denio, 87, it was held, sation for which, he, A. G. B., was to have all the proceeds of said land three years, except the two acres first seeded down. A. G. B. assigned verbally his interest, to the extent of half the contract, to H., who verbally assigned said half to C. B.; said H. and C. B. respectively agreeing verbally to perform one-half of the contract. A. G. B. and C. B. commence the performance of the contract, but do not complete it. S. sues A. G. B., and recovers damages, for non-performance, which are paid by A. G. B. H. being called upon by A. G. B. for half of the damages so recovered and paid, pays the same to him, and then commences a suit for the same against C. B.—It was held, that the contract between them (H. and C. B.) was void by the statute of frauds, and that he was not entitled to recover. See also Roberts v. Tucker, 3 Exch. 632. (j) Phillips v. Jones, 1 A. & E. 333, Lord Denman. See Peacock v. Peacock, 2 Camp. 45; Waterman v. Gilson, 5 La. An. 672. In Newel v. Keith, 11 Vt. 214, it is said, that if personal services are rendered by A to B at the request of the latter, an action will lie for them, unless it appears from the whole evidence that they were designed to be gratuitous; and this is a question of fact. So where one person has by fraud induced another to labor for a third person, the latter may still be liable for the work. Lucas v. Godwin, 3 Bing. N. C. 737. In Peter v. Steel, 3 Yeates, 250, it was held, that assumpsit would lie in favor of a free negro, for work, labor, and service, against a person who held him in his service, claiming him Statute of Frauds on the ground that the law excluded fractions of a day from the computation. This dictum was followed by a decision in Dickson v. Frisbee, 52 Ala. 165. In Britain v. Rossiter, 11 Q. B. D. 123, the court held that such a contract made Saturday for a year beginning the following Monday was within the statute, and in referring to the dictum in Cawthorne v. Cordrey, Brett, L. J., said: “This view was founded upon a fiction, namely, that the law does not take notice of part of a day. I am not prepared to say, that under like circumstances one might not follow that dictum and carry it to the length of a decision." In Billington v. Cahill, 51 Hun, 132, the dictum in Cawthorne v. Cordrey was disapproved and a decision made at variance with it, Martin, J., saying, "It is not apparent to us how it can be fairly held that a contract for a full year's service can be performed within one year from the making thereof, when it was made on a day previous to the commencement of the year." 49 VOL. II. 4 where the service is rendered to the parent or uncle, or other near relative of the party, on the ground, that the law regards such services as acts of gratuitous kindness and affection. We find American authorities which recognize this distinction, and * 47 particularly where it grows out of the relation of parent * and child. (k) But if a destitute person is received from charity, as a slave. The court laid down the general principle that, where one by compulsion does work for another, whom he is under no legal or moral obligation to serve, the law will imply and raise a promise on the part of the person benefited thereby to make him a reasonable recompense. So in Higgins v. Breen, 9 Mo. 497, it was held, that when a married man represents himself to be a widower, and thus induces a woman to marry him, his wife being still alive, such woman may recover of him for her services during such time as she may live with him.And generally where labor is performed for the benefit of another without his express request, yet if he knows of the work, and tacitly assents to it, an implied promise will arise to pay a reasonable compensation. James v. Bixby, 11 Mass. 34; Farmington Academy v. Allen, 14 Mass. 172; Hart v. Hess, 41 Mo. 441; Lipe v. Eisenlerd, 32 N. Y. 229; McMillan v. Page, 71 Wis. 655. So where one employs the slave of another the law implies a promise to pay the master for the services of the slave. Cook v. Husted, 12 Johns. 188. So of an apprentice. Bowes v. Tibbetts, 7 Greenl. 457. But labor and service voluntarily done by one for another without his privity or consent, however meritorious or beneficial it may be to him, as in saving his property from destruction by fire, affords no grounds for an action. Bartholomew v. Jackson, 20 Johns. 28; Morris v. Barnes, 35 Mo. 412. So if a workman be employed to do a particular job, and he choose to perform some additional work without consulting his employer, he cannot recover for such additional work. Hort v. Norton, 1 McCord, 22. See also ante, vol. i. p. * 468, et seq. Even if it is agreed between the parties that certain work shall be done gratuitously, such contract is nudum pactum, and the party is not bound to perform it; although it is said that if he once enter upon the performance of such contract, he is bound to complete it. See Rutgers v. Lucet, 2 Johns. Cas. 92, n. (2d ed.) (k) In Andrus v. Foster, 17 Vt. 556, it was held, that where a daughter continues to reside in the family of her father after the age of majority, the same as before, the law implies no obligation on the part of her father to pay for her services. And the same rule applies to cases where the person from whom the compensation for services is claimed took the plaintiff into his family when she was a child, to live with him till she should become of age, and she continues after that time, to reside in his family, he standing in loco parentis to her. If she claim pay, it is incumbent on her to show that the services were performed under such circumstances as to justify an expectation on the part of both that pecuniary compensation would be required. The right to compensation for services in such cases must depend upon the circumstances of each particular case. See also Fitch v. Peckham, 16 Vt. 150; Weir v. Weir, 3 B. Mon. 647; Alfred v. Fitzjames, 3 Esp. 3. In Guild v. Guild, 15 Pick. 130, the law on this point is thus summed up by Shaw, C. J.: "The point is, whether, where a daughter, after arriving at twenty-one years of age, being unmarried, continues to reside in her father's family, performing such useful services as it is customary for a daughter to perform, and receiving such protection, subsistence, and supplies of necessaries and comforts, as is usual for a daughter to receive in a father's family, the law raises any presumption that she is entitled to a pecuniary compensation for such services, and whether, after proving these facts, the burden of proof is on the defendant to show that the services were performed without any view to pecuniary compensation. Some of the court are of opinion that, as it is the ordinary presumption, between strangers, that, upon the performance of useful and valuable services in the family of another, it is upon an implied promise to pay as much as such services are reasonably worth, so, after the legal period of emancipation, the law raises a similar implied promise from a father to a daughter. Other members of the court are of opinion (confining the opinion to the case of daughters, and expressing no opinion as to the case of sons, laboring on the 1 It is now well settled that services to one's family give rise to no inference that payment was to be made for them, and there can be no recovery on an implied con provided with necessaries and set to work, he is under no obligation to remain, nor has he any claim for wages, farm, or otherwise in the service of a father) that the prolonged residence of a daughter in her father's family, after twenty-one, performing her share in the ordinary labors of the family, and receiving the protection and supplies contemplated in the supposed case, may well be accounted for, upon considerations of mutual kindness and good-will, and mutual comfort and convenience, without presuming that there was any understanding, or any expectation, that pecuniary compensation was to be made; that proof of these facts alone, therefore, does not raise an implied promise to make any pecuniary compensation for such services, or throw on the defendant the burden of proof to show, affirmatively, that the daughter performed the services gratuitously, and withont any expectation of receiving wages or pecuniary compensation, but with a view to the share she might hope to receive in her father's estate or otherwise." The court were equally divided on this question, and did not decide it; but they were unanimous in the opinion, that in all such cases the question must be determined by the jury, on all the circumstances, whether there was an implied request for labor, and an implied promise of repayment or not. In King v. Sow, 1 B. & Ald. 179, a female natural child was hired for a year by the wife of its reputed father, and continued doing the household work for three years; but after the first year no wages were paid, nor was there any new contract of hiring. Held, that the sessions were warranted in finding that after that time she did not continue on the terms of the original contract. And Bailey, J., said: "Where the parties are not related, it may fairly be presumed, from a continuance in the service, that the terms on which they continue are the same as during the preceding year. But where the *48 See relation of father and child subsists, the ground for that presumption fails." to the same effect, Dye v. Kerr, 15 Barb. 444; Ridgway v. English, 2 N. J. 409; Swires v. Parsons, 5 W. & S. 357; Defrance v. Austin, 9 Penn. St. 309; Steel v. Steel, 12 id. 64; Lantz v. Frey, 14 id. 201; Zerbe v. Miller, 16 id. 488; Resor v. Johnson, 1 Cart. (Ind.) 100; Hussey r. Roundtree, 1 Busb. L. 110; Partlow v. Cooke, 2 R. I. 451; Davis v. Goodenow, 1 Williams, 715; Candors' Appeal, 5 W. & S. 513. So an action cannot be maintained for services performed with a view to a legacy, and not in expectation of a reward in the nature of a debt. See Osborn v. Governors of Guy's Hospital, Stra. 728; Le Sage v. Coussmaker, 1 Esp. 188; Little . Dawson, 4 Dallas, 111; Lee v. Lee, 6 G. & J. 309. Nor will an action for work and labor lie for services performed under a contract of apprenticeship which before expiration of the service turns out to be void. Maltby v. Harwood, 12 Barb. 473. But where one party has rendered services for another, and it is manifest from the circumstances of the case that it was understood by both parties that compensation should be made by will, and none is made, an action will lie to recover the value of such services. Martin v. Wright, 13 Wend. 460. See also Neal v. Gilmore, 79 Pa. 421. In Eaton v. Benton, 2 Hill (N. Y.), 576, it is said, that one who has served another in expectation of a testamentary provision, and to whom the latter subsequently devises a portion of his estate, cannot maintain a suit for such services against the executors. The general rule seems to be, that a legacy left by a debtor to his creditor, which in amount is equal to or greater than the debt, shall be presumed to be in satisfaction of it. tract. It has been so held where a daughter after becoming of age continued to do work in her father's or mother's family. McGarvy v. Roods, 73 Ia. 363; Smith v. Smith's Adm. 30 N. J. Eq. 564; Harshberger's Adm. v. Alger, 31 Gratt. 52. Or a son for his father, Zimmerman v. Zimmerman, 129 Pa. 229. Or a grandson for his grandfather, Moyer's Appeal, 112 Pa. 290. Or a son-in-law for his father or mother in law, Coe v. Wager, 42 Mich. 49; Bonney v. Haydock, 40 N. J. Eq. 513; Sawyer v. Hebard's Est. 58 Vt. 375. Or a niece for her uncle, Wall's Appeal, 111 Pa. 460. The rule is based not simply on the relationship between the parties, but on the fact that the claimant while rendering the services was a member of the family of the person to whom services were rendered, and it has been accordingly held that except by express contract stepchildren cannot recover for services rendered to a stepfather who had taken them into his family, Gerdes v. Weiser, 54 Ia. 591, 593; Brown's Appeal, 112 Pa. 18. Nor a girl taken from a charitable institution for services rendered to one who had taken her into his family and boarded, clothed, and educated her, Wright v. McLarinan, 92 Ind. 103. Nor a father for services rendered a son in whose family unless there be some express agreement, or one may be implied from the peculiar circumstances of the case. A person who seduces a servant away from the service of his master or employer, is liable in an action for damages. Although this principle has been less positively settled by adjudication in this country than in England, we have no doubt of it as a rule of law. (1) In some cases very liberal presumption of payment is made in favor of the master; as where the servant has left his master for a considerable period; and where it is usual to pay wages weekly. (m) As the contract of service is mutual, the employer has a claim (1) Lumley v. Gye, 20 E. L. & E. 168; s. c. 2 E. & B. 216; Keane v. Boycott, 2 H. Bl. 511; Hart v. Aldridge, Cowp. 54; Bowen v. Hall, 6 Q. B. D. 333; Jones v. Blocker, 43 Ga. 331; Dickson v. Dickson, 33 La. An. 1261; Bixby v. Dunlap, 50 N. H. 256; Haskins v. Royster, 70 N. C. 601. See also Peters v. Lord, 18 Conn. 337; Haight v. Badgeley, 15 Barb. 499; Walker v. Cronin, 107 Mass. 555; Jones v. Stanley, 76 N. C. 355. This doctrine was held at nisi prius by Morton, J., in an interesting case in Massachusetts, a few years since. So one is liable for continuing to employ the servant of another, after notice, although the defendant did not himself procure the servant to leave his former master, or know when he employed him that he was the servant of another. Blake v. Lanyon, 6 T. R. 221. Although a servant is hired by the piece, and not for any certain time, yet an action lies for enticing him away. Anon. Lofft, But an action will not lie for inducing a servant to leave his master's employ 493. at the expiration of the time for which he originally hired himself, although the servant had not at the time any intention of then quitting his master. Nichol v. Martyn, 2 Esp. 734. The contract of hiring between the servant and his former master must have been binding, in order to render one enticing him away liable therefor. Sykes v. Dixon, 9 A. & E. 693. The damages in this action are not such as the master sustained at the time, but such as he would naturally sustain from the leaving of his employment. Gunter v. Astor, 4 J. B. Moore, 12; Dixon v. Bell, 1 Stark. 287. See Hays v. Borders, 1 Gilman, 46; McKay r. Bryson, 5 Ired. L. 216. (m) See Sellen v. Norman, 4 C. & P. 81; Lucas v. Novosilieski, 1 Esp. 296; Evans v. Birch, 3 Camp. 10. But it is no evidence of payment for one servant's labor that other laborers employed by the party, on the same work, at the same time, were duly paid. Filer v. Peebles, 8 N. H. 226. he was living, Bostwick v. Bostwick's Est. 71 Wis. 273. Nevertheless the question is always a question of fact, and all the circumstances of each case may be looked at in order to find the intention of the parties. In Curry v. Curry, 114 Pa. 367, 371, it was said: “In all cases except that of parent and child there must be evidence beyond the relationship, that the creation of no debt was intended. Where the parties are brother and sister, the sister claiming compensation for her services, the burden of showing family relationship or other cause, to exclude the implication of his promise to pay for the services, is upon the brother. Because of the fact that they are brother and sister less evidence besides would be required to establish that they lived together as a family, than if they were strangers. If he shows that they so lived, the jury ought not to find an implied promise." If there is an express contract, of course, in any case an action upon it may be maintained, Price v. Jones, 105 Ind. 543; Collier v. French, 64 la. 577; Chadwick v. Devore, 69 Ia. 637; Howard v. Rynearson, 50 Mich. 307. But to prove an express contract to pay for services rendered by a son to a father, such as filial duty and common humanity required, loose declarations of gratitude and of an intention to compensate are insufficient. Zimmerman v. Zimmerman, 129 Pa. 229. See also as to the necessity of clear and convincing evidence in such cases, Burgess v. Burgess, 109 Pa. 312; Geary v. Geary, 67 Wis. 248; Bostwick v. Bostwick's Est. 71 Wis. 273. against the employed for his neglect of duty; and it is held that the employer does not waive this claim by paying the servant and continuing him in his service. (mm) 1 The English law of apprenticeship grew out of, and with nearly all its incidents rested upon, the ancient establishment of guilds, or companies for trade or for handicraft, which were once almost universal throughout Europe, and still generally subsist, although much modified in form and effect. No one could pursue a trade or mechanical occupation, on his own account, who was not a member of such guild or company. Nor could he become a member except by a regular apprenticeship. Hence, a change of trade became very difficult; and the several companies provided with great care against such increase of their numbers as should render it too difficult for all to find occupation. Under such circumstances, to enter upon an apprenticeship which led to such membership was to acquire a support for life, and it was usual to pay large fees to the master. This custom exists in England now very generally. In this country we suppose it to occur much less frequently; and the entire freedom of employment, and the absolute right which every person has to engage in what business he pleases, and to change his business as often as he pleases, has undoubtedly operated to make apprenticeships less common with us than in Europe. In some parts of our country they are comparatively infrequent, and perhaps in none are they so necessary or so universal an introduction to business as they still are in England. The contract of apprenticeship is generally in writing, and it has been said, that it could be made only by writing; (n) it is also most frequently by deed and is to be construed and enforced as to all the parties, by the common principles of the law of contracts. Usually the apprentice, who is himself a minor, and his 294. (mm) Stoddard v. Treadwell, 26 Cal. (n) Peters v. Lord, 18 Conn. 337. 1 But if an employer keeps a hired person through a term of service, he cannot deduct his wages for time lost, or compel him to make it good. Bast v. Byrne, 51 Wis. 531. See Pennsylvania R. R. Co. v. Bost, 104 Pa. 26. — - K. |