It was evidently the intention of the parties, by the introductory clause in the contract, expressing that the parties bound themselves so far as it was in their power to see the contract fulfilled, to limit their respective Obligations to their legal ability to perform their several undertakings. Both parties doubtless understood that the contract would not be binding upon the minor son of the defendant; that he could not be compelled to work, or pursue a course of good conduct, or receive instruction, except so far as the parental authority of the defendant might be effectual for that purpose; and each appears to have been unwilling to contract beyond his own acts and authority. So far as it depended upon themselves, or their legal control over the minor, they would consent to be bound, but no further. Without such a limitation the defendant would have incurred a liability to respond in damages for an abandonment by the son of the plaintiff’s service,"or his ill conduct, notwithstanding it was entirely beyond the power of the defendant to prevent it. When a contract is absolute, if the thing to be done can by any means be accomplished, although it may be out of the power of the obligor to do it, he is liable in *295damages for its non-performance. (Beebe v. Johnson, 19 Wend. 500.) That clause was probably introduced mainly for the benefit of the defendant; whether it was necessary in respect to the plaintiff it is not important to consider. (Hughes v. Humphreys, 6 Barn. & Cress. 680.)
This construction of the contract, in regard to the extent of the obligations imposed by it, is in accordance with the position taken by the counsel for the defendant on that subject; and he contends that giving the contract such a construction, no breach of it by the defendant is shown by the complaint. The. breach alledged is, that the son, after having been in the service of the plaintiff, under the contract, about three years and a half, left and abandoned said service, and has not returned, and that the defendant “ has not used any or his best endeavors to have the said Henry serve the said plaintiff as such apprentice,” &c. “ but the defendant has neglected and refused to fulfill'said agreement,” &c.; that the plaintiff has repeatedly informed the defendant of the absence of the son from such service, and his neglect and refusal to return, &c. “ but the said defendant turned away from said plaintiff and refused to hear his complaints, or do any thing in the premises towards returning said Henry to such service and apprenticeship, or in any way to carry out or fulfill said agreement,” &c. It is not expressly alledged that the defendant had notice where his son was, after he left the plaintiff, or of his intention to leave; nor are any facts stated in reference to what might have been done by the" defendant ; but the court will take notice of his power as a parent, and cannot fail to see that he might have done something towards securing a return of his son, by making search for him, if ignorant of his residence, and on finding him exercising parental authority over him to effect his return. The defendant was bound to do what he had the legal power to do, in the premises. The allegations that he had not used any endeavors, and refused to do any thing, sufficiently show a breach of his obligation.
There is no force in the objection that the plaintiff has not alledged performance or readiness to perform on his part. The covenants are independent, and no such allegation was neces*296sary. (Powers v. Ware, 2 Pick. 451, 456.) Nor is there any want of mutuality in the obligations of the parties. (Eno v, Woodworth, 4 Comst. 249.)
The point mainly relied on by the defendant is that the contract was unauthorized by statute, or common law, and is void as contravening public policy. It certainly was not within the statute in relation to apprentices and servants, (2 R. S. 154,) and there is no statute expressly conferring the power to make such a contract. The contract never had any binding obligation upon the minor. (Id. 158, § 26. 2 Kent’s Com. 264, 4th ed. Matter of McDowles, 8 John. 329.) But is there any principle or authority which forbids a father’s binding himself that the services of his infant child shall be rendered to another, during the period for which he is by law entitled to them, without regard to the length of time, for instruction to be rendered to the child, and in addition a compensation to be paid to himsel'f? This obligation, imposed as well by municipal law as by the laws of nature and religion, to maintain and educate the child, is in no respect- diminished by such a contract; there is nothing in a fair contract of that character inconsistent with the proper discharge of that obligation; and the parental duty may often be better discharged in that way than in any other. What prejudice can result to the child or the public which might not be more frequently and certainly anticipated from denying than allowing the power to make such an arrangement ? It is not perceived that any objection in principle to the possession of such a power by the parent exists; and there is clearly nothing in the contract in the present case which can furnish any occasion for complaint. The authorities upon this question are also against the defendant. In Day v. Everett, (7 Mass. R. 154,) which was an action of covenant upon an indenture whereby the plaintiff agreed that his son should serve the defendant for the term of six years, and the defendant covenanted among other things that he would pay the plaintiff $10, on the execution of the indenture, $40 on a subsequent day, and at the expiration of the term $50—the breach assigned being the non-payment of the $50— on demurrer to the declaration, Parsons, chief justice, who de*297livered the opinion of the court, said “There is no question but that a father who is entitled to the services of his minor son, and for whom he is obliged to provide, may at the common law assign those services to others for a consideration to enure to himself. He may contract that his minor son shall labor in the service and employment of others for a day, a month, or any longer term, so that the time do not exceed the period of the child’s emancipation from the father, which may take place as well on the father’s death as on the son’s arriving at the age of twenty-.one years.” That case is cited and the doctrine recognized as law in Butler v. Hubbard, (5 Pick. 250.) In the Matter of McDowles. (8 John. 328,) an indenture of apprenticeship for six years, which was held invalid as to the infant, was held binding upon the father. (See also United States v. Bainbridge, 1 Mason, 71, 78; Respublica v. Keppell, 2 Dall. 197; Commonwealth v. Baird, 1 Ashmead, 267; Commonwealth v. Moore, 1 Browne, 275 ; Commonwealth v. Addecks, 5 Binney, 520 ; Ex parte Crouse, 4 Wharton, 9 ; 1 Bouvier's Inst. 137; Cuming v. Hill, 3 Barn. & Ald. 59.)
[Cayuga General Term, June 7, 1852.Selden, Johnson and T. R. Strong, Justices.]
The demurrer must therefore be overruled, with leave to the defendant to answer on payment of costs.