THIS was an action of indebitatus assumpsit for work and labor performed by a minor son of the plaintiff in the service and employment of the defendants. According to the proof he had entered their service on the 23d day of November, 1858, under a verbal agreement between the parties to the action, for the term of five years to work for them in their wheelwright establishment in the city of Wilmington and learn the art and trade in which they were engaged. He continued in their employment and worked very well for them in their blacksmith shop for three years and eight months, when they discharged him for leaving their service on two occasions, and for a day each time, against their orders and commands. They were to pay nothing for his services during the first year, until the expiration of the term, but after that they paid $2.25 per week to the plaintiff for the residue of the time he remained with them. That during the last two years or more of the time he was with them, he did full work as a helper in the shop, and as such, his services during that time were worth from $5.50 to $6.00 per week. Under the plea of set-off, the counsel for the defendants put in evidence an account of *Page 582 $69.00, for clothing furnished him by them from April 1860, to August 1862.
For the defendants it was contended in the trial of the case that it was a special contract between the parties to the action, to continue five years, the obligations of which were that the defendants were to receive the son of the plaintiff into their employment for that period of time and to teach him the art and trade referred to, and the son was to continue in their service and obey all proper orders and directions from them with regard to it, for the same time; and as they were mutual and dependent obligations or promises, and that of the defendants was entirely dependent upon the due performance of the promise on the part of the plaintiff, if the misconduct and disobedience of his son justified them in discharging him from their service before the expiration of the term, it would be neither just nor lawful to require them to pay the plaintiff for any portion of the time he had. been in their employment and had worked for them, and that therefore the plaintiff was not entitled to recover anything in the action. Also, that as by the terms of it, the agreement was not to have been performed within the period prescribed by the statute of frauds, and there was no note, nor memorandum, nor evidence of it in writing, no action would lie upon it; but if the law of the case should be ruled otherwise, then, as the statute of limitations had been pleaded by the defendants, the plaintiff was not entitled to recover anything for the first year's service, because the action had not been commenced within three years after the service of that year had been rendered. That the action was not, and could not be, on the special contract or agreement of the parties, if any had been proved, because it had not been entirely performed on either side; but it was an action ofindebitatus assumpsit simply with the *Page 583 common counts for work and labor, without any reference, as it stood upon the record, to any special contract whatever. None of the terms, therefore, of such a contract could be taken into consideration in determining, the present case, which was now before them precisely the same as if the services referred to had been performed without any special, or express agreement between the parties in regard to the matter. And viewed in that light, as a promise implied by law merely on the part of the defendants to pay the plaintiff for the three years and eight months' service rendered them by the son of the latter, whilst he was yet a minor, whatever such services may have been proved to have been reasonably worth to the defendants, they could only consider that reasonable compensation now demanded for them, as one continuous claim and as an account open and current between them for the time being; and therefore any credit entered, or any payment made by the defendants on such account, or for such services, within three years next preceding the commencement of the action, would have the effect to take the case out of the operation of the statute of limitations, which had been pleaded by the defendants, and to remove the bar of it, as against the whole, or any part of the demand for such services, as was now presented by the plaintiff; because such a credit entered, or such a payment made in the meanwhile by the defendants on such account, would import and imply in law an acknowledgment on their part, that the plaintiff then had a valid and subsisting claim against them for such services. But discarding, as they should in the present case, all the special terms of the express contract referred to, they could not now distinguish, or discriminate in their consideration of the case, between the first and subsequent years of the son's service, as a separate and distinct service rendered or performed by him on terms in any manner differing from those on which the subsequent services in the last two years and eight months were rendered by him. Because the present action was not upon *Page 584 any such special contract as would warrant the division of the plaintiff's claim or demand in any such manner. On the contrary, it was one continuous and indivisible demand for three years and eight months' service of his son, upon a quantum meruit count merely, and altogether outside and independent of any special agreement whatever between the parties in regard to the matter. And considered in that light, as the whole demand of the plaintiff had not accrued until within less than three years before the commencement of the action, even without any such credit, payment, or acknowledgment by the defendants, the statute of limitations could constitute no defence to it.
But notwithstanding the special agreement referred to was entirely out of view and out of question, as the basis on which the present action was proceeding, it would nevertheless be allowable for the jury in estimating the value of such services, with a view to ascertain the compensation, or damages to which the plaintiff might be entitled, to consider what would have been their value to the defendants, if the special contract, or agreement had been entirely performed and executed, according to the estimate and valuation placed upon them by the parties themselves at the time the same was entered into between them so far as it might be practicable under the circumstances for the jury to do so from the evidence before them in regard to it, and the loss which they had thereby sustained by reason of the abandonment of their service by the plaintiff's son.
The defendants had a verdict.