#### Deborah Dwyer, App’lt, *v.*Rathbone, Sard & Co., Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed May 24, 1889.)*

1. Contract—Validity of — Signature to contractor hiring not an INDENTURE OF APPRENTICESHIP.

The signature to the instrument, “Robert Shaw Oliver, superintendent,”' although placed under the printed word “ witness,” was plainly the signature of an officer of defendants, and intended to bind them. It, having bel-n put to the instrument before the plaintiff and her son signed, was *367clearly not intended as a witness to their signature and was binding on defendant It was a contract of hiring services, not an indenture of appremiceship; and the indorsement did not change its character.

3. Same—When acted upon—How far binding.

Where an instrument is acted upon by the parties to it, so far as tliey have acted it controls their rights, even if it does not bind them to continue to act according to its terms.

3. Same—Of employment—Services, how measured.

The plaintiff hired her son, a minor, to defendant. According to the contract she was to receive a certain proportion of the wages paid to journeymen, and claims that as journeymen are paid according to the perfect work accomplished, her son’s labor measured in that way was worth as much as a journeyman’s work. *Held,*that as the work accomplished by the son was the result not of his labor alone, but also of that of an instructor, the work was not worth journeyman’s work.

4. Same—Extra wages—When not recovered.

Plaintiff claims ten per cent of her son’s net earnings, which was conditionally promised, dependant upon the judgment of defendant at the end of three years, as to the faithfulness of the son’s work. *Held,*that as the three years had not elapsed when the action was commenced, and defendants have not yet decided, plaintiff can make no claim to the amount.

Appeal from a judgment of the Albany county court, dismissing the plaintiff’s complaint upon the merits, with costs.

The plaintiff alleges in the complaint, that “ she hired her son, John Dwyer, to the defendant,” and seeks to recover a balance due for work, labor and service performed by him for defendant, a domestic corporation.

The answer is a general denial, and an allegation of full payment for all services performed.

It appears from the evidence that some time in August, 1886, the plaintiff went to the defendant “ to get employment for her son,” who was then with a farmer at Slingerlands, she thinking it a “good idea to have him learn stove plate moulding.”

The defendant’s superintendent told her to send him to a foreman in the works, and that if he was able to learn the trade he would receive compensation at rates which he mentioned.

Subsequently her son brought the contract, already signed in dnplicate (it was signed, witness: Robert Shaw Oliver, Supt.), and she signed them, keeping one and returning the other to defendant.

This contract provided that the plaintiff’s son should faithfully serve the defendant for three years, “ for which he shall receive wages as follows: ” Then followed a statement of the amount he was to receive, graduated according to the length of his employment.

The contract also provided, that “ at the expiration of said term of years, in case said John Dwyer shall have faithfully and satisisfactorily performed his duties, and shall not have absented himself from work, without leave from proper authority, he shall receive an additional ten per cent on his entire net earnings, for the term of years above-specified."

*368It was also agreed “ that, in case in the opinion of Rathbone, Sard & Company, the said John Dwyer shall prove to be unsatis factory or incompetent, they shall cancel this contract at then-option. ”

The boy went to work and received his pay weekly according to the rates named in the contract, and at the same time received' instruction in molding from an instructor. In August, 1887, he was discharged. The plaintiff asked for the ten per cent, but was informed that she was not entitled to it

*Barnwell B.*Heyward, for app’lt; *Stedman, Thompson & Andrews,*for resp’t

Per Curiam.

The signature, Robert Shaw Oliver superintendent, although placed under the printed word ‘ ‘ witness” was plainly the signature of an officer of the defendants, and intended to bind them." It was put to the instrument before the plaintiff and her son had signed: and so was clearly not intended as a witness to their signature. We see no reason why it was not binding on the defendants.

The instrument was a contract of hiring services, not an indenture of apprenticeship. And the endorsement did not change its character. That is to be determined by the contracts of the instrument, and those cannot be mistaken.

It was acted upon by the parties: and so far as they acted upon it it would control their rights, even if it did not bind them to continue to act according to its terms.

It is not disputed that the plaintiff was paid for the services of her son according to this contract for the time, during which he worked for them. Such payments satisfied their obligations to her.

The plaintiff claims that the contract was void, and therefore that she is entitled to recover the value of the services. But such value is not shown. She was to receive according to the contract a certain proportion of the wages paid to journeymen and she claims that, as journeymen are paid according to the perfect work accomplished, the labor of her son measured in that manner was worth as much as a journeyman’s work. But this is not correct. Her son was taught by an instructor. So that the perfect work accomplished by him was the result not of his labor alone but also of that of the instructor. Thus his work was not worth journeyman’s work, measured by this rule. Furthermore, the more imperfect work was done, the greater the loss of material to defendants. Therefore, even if the contract were void and she were entitled to recover the value of her son’s labor, the evidence given in the case does not show it. That shows only the value of the perfect work done of her son: which we have seen was done by the aid of an in*369structor, and perhaps at the waste of considerable material, space and time.

As to the ten per cent, which was conditional, promised, she can make no just claim to this. The payment of that was dependent upon the judgment of the defendants as to-the faithfulness of the labor done by her son. She trusted to them to decide whether at the end of the three years her son’s conduct would entitle her to receive this. The three-years had not elapsed when this action was commenced ; and the defendants have not decided that her son’s conduct-deserved this additional compensation.

We do not see that there was any question of fraud to-submit to the jury. There is no evidence that plaintiff was deceived; no evidence that she thought she was entering into an indenture of apprenticeship, or that the defendants so informed her. Her receipt of the money and her boarding and caring for her son are evidence to the contrary.

The case was properly disposed of by the court, an"d the judgment is affirmed, with costs.