The opinion of the court was delivered by
Peck, J.The plaintiff, a minor, sues by guardian to recover of the defendant $325., being money the plaintiff received of one Cowan of the state of New York, for enlisting on the 13th of December, 1864, and serving in the United States army as a substitute for Cowan; which money, on going into the army, he (the minor) delivered or sent to the defendant, and which the defendant received. The plaintiff, when he enlisted and received this money and placed it in the hands of the defendant, was sixteen years of age.
The defendant insists that the money in question was his property from the time this minor received it, and that it is still his own, on the ground that the minor was his apprentice, bound as such till twenty-one years of age by articles of indenture executed between the defendant and the minor’s father when the minor was ten years old ; and that the earnings of such apprentice belonged to the master.
It is claimed by the plaintiff that the indenture is void ; first, upon the ground that it does not sufficiently appear that it was executed in duplicate, and also because the statute authorizes the parent to bind his minor children under the age of fourteen years only until that age, and to bind his minor children above the age of fourteen years, only by the consent of the minor being expressed in the indenture and testified by such minor signing the same. This indenture, was executed by the minor’s father and the defendant when the minor was ten years old, and purports to bind him till twenty-one years of age, and the minor’s consent is not expressed in the instrument or testified by his signing it. This, however, is not required by the statute in case of the binding of minors under fourteen years of age. The plaintiff’s counsel claim that as the father assumed by this indenture to bind his son a longer time than till fourteen years of age, the instrument was null and void from the beginning, and if *386not, it became absolutely void when the minor arrived at the age of fourteen years. The defendant insists that it was not void, that at most it only became voidable when the minor reached the age of fourteen years, and that the minor has not avoided it, or at least did not do so before the money in question was earned ; and that so long as he acquiesced in and continued to serve under it, his earnings and accumulátions belong to the master. In support of this proposition we are referred, among other cases, to Phelps v. Culver, 6 Vt. 430. In that case it was decided that an apprentice bound by indenture which became voidable merely, could not avoid the indenture so as to recover for services previously rendered under it, although rendered after the indenture became voidable.
In the view we take of this case, we- have no occasion to question the doctrine of that case, nor to decide whether this indenture was in its inception void, or became so when the minor arrived to the age of fourteen years. It is sufficient to say that when the minor became fourteen years of age the indenture became voidable at his election.
The case shows that the plaintiff continued to serve under this indenture till the 13th of September, 1864. That on the 13th of December, 1864, he enlisted in the state of New York into the United States army, as a soldier, went into the military service, and that he obtained the money in question for thus enlisting as a substitute for one Cowan. The case does not show expressly that the plaintiff was in the service of the defendant under the indenture after September 13th, 1864, nor that he was so when he enlisted and obtained the money in question.. There is some evidence however which may tend to show that the plaintiff still regarded the indenture as in force after that; and if that fact would entitle the defendant to the fund in question, the evidence should have been submitted to the jury.
But no formal act or express declaration was necessary on the part of the apprentice to avoid the indenture. We think the leaving of the plaintiff, enlisting into the army of the government as a soldier, and going into the military service, was an abandonment of the indenture, and in law a revocation of it. The new duties which he *387thereby assumed, the service which he undertook, and the obligations which he contracted, were not only entirely foreign to the purposes and objects of the indenture, but entirely inconsistent with it. He formed new relations and pul himself under new masters, thereby relieving the defendant from the obligation of that support, instruction, education, and other duties imposed on the defendant by the indenture and at the same time placed himself beyond the reach of its benefits. This was a sufficient revocation. This new service pan in no sense be considered a service under the indenture. Even the assent of the minor to treat it as a service under the indenture would not bind him ; such contract would be revocable by him through his guardian, the same as ordinary contracts of infants, and attended with the same legal results. It would be a new contract and not a continuation of the old one. It will be noticed that in Phelps v. Culver, cited in argument, the services for which the plaintiff sought to recover, were of the same character contemplated in the indenture, while at the same time the plaintiff enjoyed all its provisions for her benefit. Hot so in this case, but the very reverse. In this case the plaintiff under his enlistment neither did nor could perform the duties, or enjoy the benefits, of the indenture. The plaintiff therefore is liable for the money in question.
The defendant claims under his plea in offset, to recover the excess of his expenditures for the apprentice up to September 13th, 1864, under the indenture, over and above the value of the services of the plaintiff for the same time. It follows from what has already been said that there is no legal ground for such claim. The indenture being revocable at the election of the plaintiff, he can not be made liable in damages for revoking or avoiding it. The principle of the case of Phelps v. Culver, forbids such recovery ; for if the apprentice can not recover for services rendered under a voidable indenture over and above the benefits received, the master cannot recover of the apprentice when the excess is in his favor.
The defendant claims also to recover under his plea in offset, for money and time in procuring the removal of the plaintiff from Fortress Monroe while sick there, to Brattleboro, and subsequently procuring his discharge from the service. As the minor at that time *388had no guardian, the defendant is entitled to recover such expenditure, if it was so far necessary as to come within the principle appli-. cable to claims for necessaries furnished to infants. Considering the condition of the health of the plaintiff at that time, we think there was at least some evidence tending to show that those expenditures were necessaries, and that the question ought to have been submitted to the jury under proper instructions. What those instructions should be, can better be determined in view of the state of the evidence which may be developed at the trial, than be laid down in advance upon the brief statement of the evidence in this bill of exceptions.
Judgment reversed and new trial granted.