It does not seem to me that the opinion quite reaches the heart of the problem before us. The effect of the Compensation Act, when applicable, is not to create a contract between the parties but to add an incident to the contractual relationship they have themselves created. All the terms quoted in the majority opinion are apt to *Page 470 this situation and I can find in them nothing which can reasonably be construed as going farther. Regarded as an incident to the contractual relationship, I cannot see in those terms anything which can be reasonably construed as taking from an infant his common-law right to disaffirm his contract.
This requires a consideration of the effect of such a disaffirmance upon the application of the Compensation Act. If an infant makes a special contract for the rendition of services and later disaffirms it, the particular contractual relationship created by it is at an end. But it still remains true that he has in fact rendered services under a mutual understanding that compensation will be made and this is sufficient to sustain an action upon a quantum meruit for the reasonable value of such services. "By the avoidance the contract was annihilated, and the parties are left to their legal rights and remedies, just as if there had never been any contract at all. . . . And so where services have been performed or property delivered by the one to the other, under the expectation that the contract would be fulfilled, the case is to be adjusted and determined by the principles of law, independently of the contract, if it has been avoided." Vent v. Osgood, 36 Mass. (19 Pick.) 572, 575, 577; Dallas v. Hollingsworth,3 Ind. 537; 31 Corpus Juris, 1088.
The Compensation Act is so drawn as to attach, subject to the exceptions it contains, to every relationship of employer and employee, whether resulting from a special contract, or from the mere performance of services under a mutual expectation that compensation will be made. Thus an employee is defined to be "any person who has entered into or works under any contract of service," and an employer as "any person . . . using the services of another for pay." General Statutes, § 5223. "The contract may be established by *Page 471 evidence showing that an express contract was entered into by the parties, or by evidence of facts and circumstances from which, as an inference of fact, it can legally be found that a contract of employment existed between them." Sibley v. State, 89 Conn. 682,686, 96 A. 161. "All contracts of employment" are conclusively presumed to include the terms of the Compensation Act, unless this is prevented by the presence of some situation excepted by the terms of the Act or unless by the written stipulation of the parties in the contract or by notice of withdrawal of acceptance in the manner specified in the Act. General Statutes, § 5227. It is expressly provided that, in the case of a minor, notice of the withdrawal shall be given by his parents or guardian or, if there be none, by the minor himself. General Statutes, § 5228. I am not able to read these provisions of the Act without seeing in them a clear legislative intent to make it applicable to all cases of the employment of a minor, unless under its terms that application is prevented, whether that employment be under a special contract or under the contract implied in law which still exists after the avoidance of any special contract he may have made. His right to avoid any special contract remains, but if he does so, the terms of the Compensation Act are still binding upon him, unless it be by reason of some provision contained in the Act itself.
In this opinion HAINES, J., concurred. *Page 472