Opinion
(June Term, 1848.)
1. A master of an apprentice cannot assign or transfer his right over the apprentice to another person.
2. It being unlawful to remove a colored apprentice from one county to another, no action, founded on a contract for such removal, can be supported.
APPEAL from the Superior Court of Law of HERTFORD, at Fall Term, 1847, Dick, J., presiding.
No counsel for plaintiff.
W. N. H. Smith for defendant.
The plaintiff lived in the county of Northampton. A colored boy by the name of Joe Walker was bound to him for a term of years by the court of that county. Before the expiration of the term of service the plaintiff sold the unexpired residue to the defendant, who lived in the county of Hertford, and where the contract was made. By the contract it was stipulated, "if the boy did not serve the whole of the unexpired period, then the defendant should pay for the time the boy did serve, at the rate he was to give for the whole of the time for which he had contracted." The defendant had the boy in his possession in Hertford County, where he was carried by the plaintiff. Before the expiration of the time for which the boy was indentured, he returned to the possession of the plaintiff. The action is brought to recover the compensation for the services of the boy, Walker, for the time he was in the actual employment of the defendant. The plaintiff proved that his account was presented to the defendant, who objected that he was entitled to a credit for some clothing furnished the boy, and he promised, if the plaintiff would allow him that credit the account would be correct and he would pay it. The (403) credit was allowed by the plaintiff.
The defendant objected to the plaintiff's recovery, first, because the contract was a specific one for the whole remaining portion of the term of apprenticeship, and that he had deprived the defendant of the benefit of his contract by receiving the boy before the term expired; second, because the consideration upon which the contract rested was illegal, as, by the terms of indenture, it was unlawful for the plaintiff to remove the boy out of the county of Northampton, and that, under the contract, the boy had lived with and served him, in the county of Hertford, about fourteen months.
His Honor, the presiding judge, instructed the jury that if the contract was that the boy should serve the defendant the whole of the unexpired portion of the time for which he was bound to the plaintiff, and that contract had not been modified or altered by the parties, the plaintiff could not recover. But if, at the time it was made, it was agreed that the defendant should only pay for the time the boy served him at the rate he was to pay for the whole time, or if the contract was subsequently altered or modified by the parties so as to make the defendant liable only for the time the boy served him, then the plaintiff would be entitled to recover for the services of the boy for the time he actually served the defendant.
There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.
We see no just ground of complaint, on the part of the defendant, of the charge. The law, we think, has been properly administered, and we agree entirely with the presiding judge. His Honor has not given us the reason upon (404) which his decision rests, nor could he, indeed, with any propriety so do, as they properly constitute no part of the case. Our only inquiry is whether there is error in the law as charged by him. In this case the charge is precise, lucid and unencumbered with extraneous matter.
If the original contract had been, as it is treated by the defendant, one for the unqualified transfer to the defendant of the unexpired term of the apprentice, the first objection raised by the defendant would unquestionably be sound, and the plaintiff could not recover. The binding out of an apprentice to a particular person is from confidence in the party to whom he is committed that he will not only instruct him in his trade or business, but will also be careful of his health and safety. It is, therefore, such a personal trust that the master cannot assign or transfer it to another. 4 Bac. Abr., Tit. Master and Servant, Letter Ec. page 577; Hall v. Gardener, 1 Mass. 177; Davis v. __________, 8 Mass. 299; Coventry v. Goodall, Hobarts, 134.
The second objection on the part of the defendant is equally true in principle. By the act of 1801, Rev. St., ch. 5, sec. 7, "when the County Court shall bind out any orphan child of color, they shall take bond with sufficient security in the sum of $500, from the master or mistress, that they shall not remove said child out of the county, etc." It is therefore illegal for any master or mistress to remove such apprentice out of the county wherein he was indentured; and, such removal being illegal, no action can be founded on a contract for such removal. Sharp v. Farmer, 20 N.C. 255, and Blythe v. Lovinggood, 24 N.C. 20, cited at the bar by the defendant's counsel, fully sustain his proposition. But, we thank, the case before us steers clear of each of those objections. The action is not brought to enforce the contract originally made; that was illegal and could not sustain an action. But it is brought upon the assumpsit of the defendant, made after the original contract was rescinded, as it appears, by mutual or tacit consent and (405) upon a sufficient legal consideration.
From the terms of the original contract the parties seem to have been fearful they were doing what the law would not sanction, and therefore it is provided that if the boy did not serve out his full term the defendant should pay only for the time he did serve. A locus penitentiae is therefore provided for the plaintiff. He availed himself of it, and the contract was put an end to. But the defendant has enjoyed the services of the plaintiff's servant, and in consideration thereof the defendant agreed to pay him for those services an ascertained sum, to wit, the amount of the account presented by the plaintiff. The case of Sharp v. Farmer, above cited, was where the action was directly upon the original contract. The next of kin of one _________ Farmer agreed that the defendant, without administering, should sell the property and pay the debts and divide the residue among those entitled, the plaintiff being one. The action was brought for his distributive share. The Court declared the correct void, because in violation of a public law. So in Blythe v. Lovinggood, supra. At a sale of public lands, where the terms were if the highest bidder did not comply with his bid the next highest should have the land, the plaintiff was the highest and the defendant and the next highest bidder. It was agreed between them that the plaintiff should refuse to comply with his bid, and in consideration thereof the defendant should give him $120, for the payment of which he executed his note; and the conveyance of the land being made to the defendant, the action was brought upon the note, and the Court decided that the agreement was a fraud upon the State and the note was void. In each of these cases the action was upon the original contract. Here the original contract was put an end (406) to by the parties themselves, and the action is brought upon one made subsequently, and, as we think, upon a sufficient consideration.
In his first objection, in addition to the ground that the assignment was void, the defendant insists that the plaintiff received the boy back into his care before the time had expired for which he had contracted, and that thereby the plaintiff had deprived him of the benefit of his contract. The answer is that by the terms of the contract he was to pay only for the time he had the boy. As before remarked, the parties had provided locus penitentiae. They contracted in view of the fact that the boy might not serve out his time with the defendant, and the contract was by mutual consent rescinded.
PER CURIAM. Judgment affirmed.
Cited: Ownes v. Chaplain, 48 N.C. 324; Musgrove v. Kornegay, 52 N.C. 75; Biggs v. Harris, 64 N.C. 417.