¶1By the Court,
¶2There is no reason for interfering with the report as to the amount of damages; in that respect it is fully warranted by the evidence. The only questions necessary to be considered are, 1. Whether the action can be sustained in the name of the father; and 2. Whether the plaintiff should not have declared upon the special contract.
¶3Parents are bound to maintain their children, and are entitled to their services until they are 21 years of age. The law considérs them as the servants of their parents, and as laboring for them, though not in their actual employment. Whatever they may earn, belongs to and is to.be recovered *206in the name of the parent. This is the genaral rule; but a parent may relinquish his right, and authorize his child to la-bar for himself, and to receive and appropriate to his own use whatever he may earn; and a special contract with a third person, authorizing him to employ and to pay the child himself, will bind the parent, and payment to the child will be a defence against any action brought by the father. The intention of the parent may also be inferred from circumstances ; and where the circumstances of any particular case warrant the conclusion that it was understood that the child might receive his earnings, payment to him will be good. 7 Cowen, 92. 2 Mass. R. 115. 8 Cowen, 84. But where there is no agreement, either express or implied, that payment may be made to the child, the parent alone is entitled to his earnings, and the action must be brought in his name. Such is this case.
¶42. The special agreement in this case was clearl^jgÜ within the fourth section of the statute of frauds. The contract, on the part of the defendant, was to pay $100 for the services of the plaintiff’s son, when he became of age. The young man was but 16 years of age when the agreement was made ; so that it could not have been performed on either side within a year. The son was to serve the defendant for five years, and then the defendant was to pay the $100. There was no contingency upon which it could have been performed' within a year. It should, therefore, in order to bind the parties, have been evidenced by writings. 1 Comyn on Contracts, 87. Boydell v. Drummond, 11 East 142. 1 R. L. 78, sect. 11.
¶5The evidence also shews that the special contract was abandoned by the mutual consent of both parties. It was a part of the original agreement, that if the young man was dissatisfied, he might at any time leave the defendant’s service. He did leave it, with the consent of the defendant. Upon the ground, therefore, either that the special contract was void under the statute of frauds, or that it had been terminated and abandoned by the parties, the plaintiff has a right to recover upon a quantum meruit for the services actually rendered by his son, without any reference to the special agree*207ment. 5 Johns. Rep. 85, and cases cited in note a, p. 87. 11 id. 441. 12 id. 274. 1 Term Rep. 133. 1 Bos. & Pull, n. s. 354. 7 Johns. R. 132. 7 Cowen, 93.
¶6The original contract provided, that if the young man left the defendant before his time was out, it should be left to two individuals, named by the parties, to decide what the defendant should pay for his services. The manner of ascertaining the amount having been specially agreed upon, it would probably have been necessary to have declared specially in this respect, and to have shewn an offer on the part of the plaintiff to submit the matter to the individuals named, if it had not appeared that this part of the contract, as well as the other, had been put an end to by the refusal of the defendant to comply with it. It is shewn that upon an application made to him to submit the settlement to the individuals agreed upon, he replied that he had nothing to settle. The whole contract was then at an end, and the general counts were all that it was necessary for the plaintiff to insert in his declaration.
¶7Motion to set aside report of referees denied.