SUPREME JUDICIAL COURT

The indenture was produced, by which it appeared that the plaintiff, being then a minor, was bound, with the consent of his mother, his only surviving parent, an apprentice to Easton, who was "to instruct or cause him to be instructed" in the trade of a cooper. The instrument contained other stipulations usually inserted in indentures of apprenticeship. The plaintiff's mother consented to his performing the voyage in question, and his outfit was furnished by Easton. Easton did not accompany him on the voyage. He became of age in April 1828.

      Easton offered to prove a custom for master coopers to send their apprentices to sea in whaling ships, with the consent of the apprentice, and that the instruction thus obtained in the business of a cooper was highly beneficial. This testimony was objected to, and was ruled out.

      The jury were instructed, that the indenture created a personal trust, which could not be delegated; that the master had no right to send the apprentice on a voyage to sea, and the moment he left the master the contract was dissolved and the indenture was no defence.

      The jury returned a verdict for the plaintiff. If the evidence of the custom was improperly rejected, or if the jury were erroneously instructed, a new trial was to be granted.

      Coffin, for the defendants, insisted that the evidence of the custom ought to have been received; that this custom did not impair the rights of the apprentice, but resulted to his benefit; and that under this custom there is no assignment of the contract or of the services of the apprentice, but he goes to sea, with the consent of all parties, for better instruction in his trade. A master cooper is indispensable on board a whaling ship. Rex v. Stockland, Doug. 70.

      The permission granted to the apprentice to perform this voyage, did not dissolve the indenture. A parol leave of absence merely permits the apprentice to depart and remain absent until he shall be recalled by the master; it cannot dissolve the indenture; and so long as the relation created by the indenture subsists, the master is entitled to the earnings of the apprentice. If the contract has been violated by Easton, the remedy is on his covenants. – He cited the following authori-

ties, from some of which he distinguished the case at bar. Reeve's Dom. Rel. 344, 345; St. 1794, c. 63; Hall v. Gardner, 1 Mass. R. 172; Davis v. Coburn, 8 Mass. R. 299; Commonwealth y. Hamilton, 6 Mass. R. 273; Coffin v. Bassett, 2 Pick. 357; Co. Lit. 117 a, Hargr. note, 161.

      L. Williams, for the plaintiff, cited against the right to assign an apprentice, Hall v. Gardner, Davis v. Coburn, and Coffin v. Bassett, above referred to; and against the supposed custom, Todd v. Reid, 4 Barn. & Ald. 210; Coventry v. Woodhall, Hob. 134; 2 Stark. Ev. 454, 455.

      1. The Court are of opinion, that by force of the contract of apprenticeship, as regulated by the laws of this commonwealth, it is not competent for the master, with whom the apprentice is placed to learn the trade of the master, to send him abroad on a whaling voyage, and receive his earnings. It would be alike contrary to many of the terms and stipulations of the contract itself, and to the nature and purposes of the relation of master and apprentice. It has been repeatedly decided, that in the contract of apprenticeship, whether made by the minor himself, in the cases allowed by law, or by his parent or guardian, or by persons clothed with public authority, a special regard shall be presumed to have been had to the personal character, capacity and qualifications of the master. He is, for the time being and for a considerable period of time, and a most important one to the development of the character of the apprentice, to stand in loco parentis. A high trust and confidence are reposed in the person of the master. All the considerations which go to support the rule that an apprentice cannot be assigned over, are arguments against the

right of the master to place the apprentice out of his own control and instruction, for the long period of a whaling voyage, averaging from two to four years, a large portion of the usual period of apprenticeship. It is directly repugnant to the leading stipulation on the part of the master, to instruct the apprentice in his trade. Hall v. Gardner, 1 Mass. R. 172; Davis v. Coburn, 8 . Mass. R. 299; Coffin v. Bassett, 2 Pick. 357.

      2. The Court are of opinion that the evidence of custom was rightly rejected. In many cases evidence of custom would be competent, even under such an indenture, to show what the nature of a particular trade is, of what branches and particulars it consists, and how it is usually learned and taught. But here the custom was relied upon, to establish rights and duties directly repugnant to the objects and terms of the contract.

Hiram Nickerson versus John G. Easton.

      A written agreement not under seal, signed by a minor, his mother and step-father, of the one part, and by the defendant, of the other part, recites that the minor has been living with the defendant as an apprentice to learn the trade of a cooper, but that no indenture has been executed, and stipulates that the minor shall go on a whaling voyage, and shall do "the duty he ships to perform," and that the defendant shall furnish him outfits, and shall receive all his earnings on the voyage, and that at the end of the voyage the minor shall be free from his apprenticeship. It was held, that so far as the relation of master and apprentice subsisted de facto by the actual residence of the minor with the defendant, it was waived and terminated by the written agreement; that the written agreement itself did not constitute a contract of apprenticeship; that independently of the supposed relation of master and apprentice, the contract was not reasonable and beneficial to the minor, and not binding upon him; and that be was entitled to recover his earnings on the voyage to his own use.

      Assumpsit to recover the amount of the plaintiff's earnings as cooper of the ship Alliance, on a whaling voyage from Newport to the Pacific Ocean.

      At the trial before Morton J. the defendant produced a written agreement, not under seal, dated December 31, 1824, between

Christopher Hammond, his wife Lovey Hammond, and the plaintiff, her minor son, of the one part, and the defendant, of the other part, in which it is recited, that the plaintiff had for some time past lived with the defendant as an apprentice to learn the trade of a cooper, and that indentures have been made, but not signed, by the parties, and it is stipulated that the plaintiff shall perform a voyage round Cape Horn in the ship Alliance, and shall "perform the duty he ships to perform," according to the best of his skill and judgment, and that on the return of the ship the defendant shall receive the plaintiff's earnings on the voyage; and the defendant agrees to relinquish to the plaintiff all demands which he now has against him, and to furnish him with suitable outfits, which are to belong to the plaintiff; and should the ship return before the plaintiff arrives at the age of twenty-one, he is to be free from his apprenticeship. The ship returned in June 1828, the plaintiff being then a little over twenty years of age. It was admitted that the defendant received the amount of the plaintiff's earnings on the voyage, viz. $576.60, and that he furnished the plaintiff his outfit.

      Evidence of a custom, as stated in the preceding case of Randall v. Rotch, was offered and rejected.

      A default was entered by consent, subject to the opinion of the whole Court.

      A. Basset and Coffin for the defendant.

      L. Williams, for the plaintiff, cited Freto v. Brown, 4 Mass. R. 676.

      Shaw C. J. delivered the opinion of the Court. The defendant received the amount due for the plaintiff's services, under a claim of right to take and hold the same to his own use; and if the defendant has not the right claimed, it has not been questioned that the plaintiff is entitled to recover in this action, the sum agreed on as the net amount of these earnings.

      The ground upon which the defendant claims the lay or share of the plaintiff is, that the plaintiff was his apprentice to learn the trade of a cooper, that the defendant shipped the plaintiff, procured his outfits under the agreement stated in the case, and in this capacity was entitled to these earnings.

      But the defendant fails in the first step of his case, and does not show that the relation of master and apprentice existed. The Court are of opinion, that so far as the relation of master and apprentice subsisted between the parties de facto, by the actual residence of the plaintiff with the defendant as an apprentice, it was waived and terminated by the written agreement, which stipulated that the plaintiff should go on the voyage, and that at the end of it, whether the plaintiff were twenty-one or not, that relation should cease. We are also of opinion, that the instrument itself did not constitute a contract of apprenticeship. There is no stipulation for the instruction of the apprentice in his trade, nor even that be shall be employed as a cooper, no stipulation for the care and maintenance of him during the term of his service, and no provision for him at its termination. It was a contract for a separate and independent service and purpose, and as such contract, it was not binding upon the plaintiff, because he was a minor and not competent to bind himself by such contract.

      This agreement cannot be relied upon, as a contract which a minor has authority to make as one beneficial to himself, independently of the supposed relation of master and apprentice; it has not been put upon that ground by the counsel, nor is there any thing in the case to warrant us so to consider it. The Court do not mean to say, that it is not competent for a minor over fourteen years of age, with the consent of his parents, and under many circumstances by himself alone, to make a contract for his employment, and if such contract is reasonable, and beneficial to the minor, it may be held to be valid and binding in law, on the ground that it is within a well known exception to the general rule, under which minors are held incompetent to bind themselves by their contracts. But in all such cases the question will be, whether the particular contract, at the time and under the circumstances in which it was made, and in the stipulations and provisions of the contract itself, was reasonable and beneficial to the minor, and the contract will be supported or vacated accordingly.