59 Mass. 417 - Harper v. Gilbert — 59 Mass. 417

Edward Harper vs. Lemuel Gilbert. The insertion of the name of a minor above the age of fourteen years in the atiesta tian clause of an instrument purporting to be an indenture of apprenticeship, and the execution of the instrument by such minor, are not a sufficient expression of the consent of the minor to make the instrument a valid indenture of apprenticeship, under the Rev. Sts. c. 80, § 3. Evidence is inadmissible to show, that, when an instrument purporting to be an indenture of apprenticeship was executed, the minor and his father both declined signing such an indenture, and were told by the other party, that the instrument which they were about to sign was not such. This was an action of assumpsit to recover for the services of William R. Warren, a minor above the age of fourteen years, alleged to be the plaintiff’s apprentice. At the trial, before Mellen, J., in the court of common pleas, it was in evidence or admitted, that the services in question had been performed by the minor; that they were of the value of $5.50; that the defendant was previously notified that the plaintiff claimed the services of the minor as his apprentice, and that the minor had left the service of the plaintiff, and entered that of the defendant, with his father’s approbation. In order to prove the apprenticeship, the plaintiff gave in evidence a paper, purporting to be an indenture of apprenticeship, executed by the plaintiff, by Josiah Warren, the minor’s father, and by the minor himself; but the instrument contained no expression of the consent of the latter, as required by Rev. Sts. c. 80, § 3, unless it was to be found in the following clause : “ In testimonies whereof, we, Josiah Warren, Edward Harper, and William R. Warren, have hereunto set our hands and seals, on the day above written.” The defendant offered to prove, that when this writing was made, the minor and his father both declined to have the minor bound as an apprentice, or to sign an indenture of .apprenticeship ; and that when this paper was made, they were told by the plaintiff, that it was not an indenture of apprenticeship. The presiding judge ruled, that this evidence was inadmissible, and that the paper was an indenture of apprenticeship; whereupon the jury returned a verdict for the plaintiff, and the defendant excepted.' E. F. Hodges, for the defendant. J. Hall, for the plaintiff. — By the Court. (majority) By the Court. The evidence offered by the defendant in the court below, with respect to the intention of the parties to the supposed indenture of apprenticeship, and to the declaration of the plaintiff, that the instrument was not of that character, was properly rejected. If the instrument had been executed according to the requirements of the statute, the plaintiff might follow the apprentice, and claim payment for his services of any person, who should employ him, with notice that he was bound to the plaintiff as an apprentice. The Rev. Sts. c. 80, § 3, provide, that minors above the age of fourteen years may be bound, in the same manner with those who are under that age, “ provided, that when they are bound by their parent or guardian, the consent of the minor shall be expressed in the indenture, and testified by signing the same.” The question in this case is, whether the indenture contains such an expression of the consent of the minor. The court are of opinion, that it does not. The statute requires, that the consent should be expressed in the indenture, and testified by the minor’s signature. This indenture, although signed by the minor, contains no expression of his consent to its provisions. The true role, equally applicable to an indenture of apprenticeship, is laid down in the cases of Catlin v. Ware, 9 Mass. 218, and Lufkin v. Curtis, 13 Mass. 223, in which it was held, that the execution of a deed of land by a married woman is not sufficient to bar her of dower therein, without express words in the deed to that effect. In the present case, the instrument contains no words expressing the minor’s consent. • Exceptions sustained.