¶1The opinion of the court was delivered by
¶2On the plea in abatement it is sufficient to remark, that the right of an infant to sue by prochein ami, although first given by statute, seems to have been recognized as a part of the common law in most of the states. In this state it has never been doubted that he may sue by prochein ami. It is sufficient that .the guardian does not dissent, and although he may dissent, yet if it is necessary, and for the benefit of the infant, he may sue by prochein ami, *276notwithstanding such dissent. The decision of tiie county court on this point was correct.
¶3On the other question it is contended that there were two separate contracts. If so, the argument of the counsel for the plaintiff is irresistible, that what was earned under the first contract could not be merged in damages for failing to perform the second. A minor would not be liable for damages in such a case. We think, however, there was but one contract or undertaking, and what is called the second contract was only making an election agreeably to the terms of the contract, and giving up the right of determining the time of service at pleasure. The question then arises, what is the effect of the contract, ami the consequences of its being abandoned in the manner stated ? If the plaintiff was of full age there could be no doubt. But inasmuch as the plaintiff was an infant, not bound by his contracts, but at liberty to rescind them, except in certain cases, it presents a very serious question whether he should not recover a compensation for his services without any regard to his contract. — * This cannot be considered a contract for necessaries and therefore binding, as an infant cannot judge for himself as to the value of his services, the time suitable to b^d himself, or the nature of the employment. An express contract to pay for necessaries to be thereafter furnished for a length of time would not be valid. Nor can the contract be considered as binding, as contended for in the argument, because he might be compelled to go out to work by his guardian or the overseer of the poor. The infant could not have been compelled to make a contract of this nature. The infant was not bound by this contract so as to be liable to damages for the nonperformance of it, but was entitled to recover what he reasonably deserved to have for his services. In a similar case in the state of Massachusetts it was held that a minor could recover no more than, under all ,the circumstances, the services were worth, taking into consideration any disappointment, amounting to an injury, which the other party would sustain by the avoiding of the contract. Moses v. Stevens, 2 Pick. R. 322. The court are inclined to adopt, this rule, and although I have great doubt, whether it is not infringing the general rule of law on the subject of contracts with infants, *277yet I.more readily yield my assent to this course, on principles of policy, when I reflect that so many minors are emancipated by their parents by giving them their time, as it is called, — a practice which, though sanctioned by judicial decisions, I regret has prevailed, — and become adults for the purpose of making contracts, and remain infants to avoid them. It would be unsafe for community, unless some such princiciple were adopted. The case under consideration must be decided on this ground. The plaintiff ^ade a contract for service and avoided it. It is found that his services were of no value, and many such cases will happen when a person abandons his contract, so that the other party is injured more than the services were' worth. He ought not, therefore, to recover any thing. The judgment of the county court, which was in favor of the defendant, must be affirmed.