#### Charles Felton *versus*Obadiah Dickinson.

Although, where there is a special agreement relative to the performance of work and labor, the declaration ought to state the agreement, yet, where the terms-of the agreement have been so far performed as that nothing remains but a mere duty to pay money, a general count is sufficient for the recovery of the sum due.

Where the father of a minor placed him in the service of a master, upon an agreement, among other things, that, at the end of the term of service, he would pay him a sum of money, it was held that an action lay for the minor to recover tin-money, after the service performed

*287The declaration in this case, besides several uncontested counts on promissory notes, contained an *indebitatus assumpsit*for two hundred dollars, in consideration of work and labor performed for the defendant by the plaintiff, and at his request, and a *quantum meruit*for the same work and labor.

The evidence in support of these counts, given at the trial of the cause upon the general issue before *Parker,*J., at * the last April term in this county, was, that the father of [ * 288 ] the plaintiff, when the latter was about fourteen years of age, placed him in the service of the defendant, upon an agreement that the plaintiff was to remain in that service until he should arrive at the age of twenty-one years ; during which time the defendant promised to support him in food and clothing, and, at the end of the term of service, that he would pay him two hundred dollars in money, or convey to him a certain lot of land in *Vermont,*if the plaintiff should choose to take it. It was agreed that the plaintiff had served out his time ; and it was in evidence that he had been to *Vermont*to examine the land, and before the commencement of this suit had signified to the defendant his refusal to accept it. The defendant objected that this evidence could not support either of the counts ; 1st. Because it proved a special contract, which ought to have been set forth. 2d. Because the promise, as proved, was made to the father, and not to the plaintiff. Both these objections being overruled by the judge, a verdict was returned for the plaintiff; and the defendant moved for a new trial on the above grounds.

*Allen,*for the defendant,

urged the same exceptions which were taken at the trial: 1st. That the contract being made with the father of the plaintiff, the action can be maintained only in the name of the father. The son was at the time unable to contract, except for necessaries. He was certainly not competent to enter into this special agreement.

2. But the other exception, which was to the form of declaring, was most relied on. This was an executory contract, and was not to attach until the plaintiff came of age and had performed the service. It was an alternative undertaking, and the alternative ought to have been set forth. (1)

*Mills,*for the plaintiff.

As long as a contract remains executory, the declaration must be special; but, when it ceases to be executory, a general *indebitatus assumpsit*is sufficient. (2) In the case of *Penny*vs. *Porter,*neither count was supported by the evidence.

* In the case at bar, the plaintiff having made his [ * 289 ] *288election of the money, the land was out of the question.' The promise to pay money alone remained. Indeed, a verbal promise to convey land could never have been enforced; and it would have been idle to state-a void promise in the declaration.

As to the action being brought in the name of the father, the promise was wholly for the benefit of the son, and he can well maintain an action upon it, declaring, as in this case, upon the promise as actually made to him. (3)

Where justice is substantially done by a verdict, the Court will not set it aside upon a technical objection to the form of declaring. (4)

*Ashman,*in reply, was not disposed to contest that an action was maintainable by the plaintiff on the facts disclosed in this case, though, in many of the cases cited for the defendant, the nominal promisee was but the agent or attorney of the party in interest.

But he relied on the objection to the form of declaring, and thought no case had gone so far as this at bar. Though this was merely an oral contract, still it is to be treated as if it had been in writing; and it would be going a great way to say that a contract, so special as the one here proved and reduced to writing, could be given in evidence in support of the general counts in the declaration before the Court.

(1)

 2 *East,*2, *Penny*vs. *Porter.*

(2)

*Bull. N. P.*139, *Gordon*vs. *Martin.*— 4 *Bos. & Pul.*330, *Brooke*vs. *Young*1 *Bos. & Pul.*397, *Pouller*vs. *Killingbeck.*— 4 *East,*147, *Mussen*vs. *Price.*

(3)

 1 *Bos. & Pul.*102, *Felt-makers*vs. *Davis.*— *Cowp.*443, *Martyn*vs. *Hind.*— 1 *Vent.*318, 332, *Dutton*vs. *Poole.*

(4)

7 *Mass. Rep.*507. — 2 *Burr.*936.

*Per Curiam.*

Two objections are made to the verdict in this case: first, that the special matter proved was not properly admitted to support a general *indebitatus assumpsit;*and, secondly, that the promise being made to the father, he was entitled to the action, and not the present plaintiff, the son.

The *first*objection merits some consideration. It is undoubtedly true, that, where there is a special agreement relative to the performance of work and labor, the declaration ought to state that agreement, in order that the defendant may be apprized of the contract he is charged with breaking, and may have opportunity to show the want of performance, on the part of the plaintiff, of those [*290] stipulations, which * may have been the foundation or consideration of the promise made by the defendant.

But where there has been a special agreement, the terms of which have been performed, so that nothing remains but a mere duty to pay money, there seems to be no reason why a general count should not be sufficient for the recovery of the sum due. *(a)*

*289The other objection, *viz.,*that the contract was made with the father, we think has no validity. It is clear that, although the father contracted for the son, yet he had a view to the son’s advantage, and not his own. The money was to be paid to the son upon the termination of his minority. Now, when a promise is made to one, for the benefit of another, he for whose benefit it is made may bring an action for the breach. This principle was settled as early as *Roll*’.s time, in a case quite analogous to the present; and, it being cited by Lord C. B. *Comyns,*in his Digest (5) without any question of its authority, it is to be presumed that it continues to be received as a sound principle. (b)

ADDITIONAL NOTE.

[See *Causten vs.*Burke, 2 *Har. & G.*295. — *Feeter*vs. *Heath,*12 *Wend.*477.— *Way*vs. *Wakefield,*7 *Verm.*223. — *Bagley*vs. Bates, *Wright,*705, affirming the rule in the text.

Otherwise, where a contract is still open, or to be performed nereafter. — *Shepard*vs. *Palmer, 6 Conn. 100.—Halloway*vs. Davis, *Wright,*129. — *Russell*vs. *South,*&c., 9 *Conn.*508. — *Blair*vs. *Asbury,*4 *Por.*435.— *Cranmer*vs. *Graham,*1 *Blackf.*406.

And see *Dubois*vs. *Delaware,*&c., 4 *Wend.*285. *—Perrine*vs. *Haukinson,*6 *Halst.*181. —F. H.]

ADDITIONAL NOTE.

[Acc. *Eubanks vs.*Peak, 2 *Bai.*497.

Where there is no agreement, express or implied, that the earnings oí a minor are to be paid to him, the father is entitled to receive them, and an action therefor must, be brought in his name. — *Shute*vs *Dorr,*5 *Wend.*204.— *Bradley*vs. *Bassett,*13 Conn. 560.

A written agreement, intended for an indenture of apprenticeship, was made with the defendant, by a minor and his father, but was not legally executed. Held, as a

(a)

**[It seems by the authorities that a contract in the alternative must be set forth specially, although the option be in the party pleading. In a note to *White*vs. *Wilson,*(2 *B. & P.*119,) are the following remarks: “In *Layton*vs. *Pearce, (Doug.*15,) it was held, in the case of an alternative contract, that the party who had not the *289option could not state it as an absolute contract. Lord *Mansfield,*indeed, there laid down that, if the option had been in the party pleading, it had been otherwise. On the authority of this dictum it was contended, in *Chirchill*vs. Wilkins, (1 *T. R.*447,) that a contract, in the alternative where the option is in the party pleading, may be stated as an absolute contract; and this seems to have been admitted by Buller, J., for his reasoning went to show that the contract in that case was not a contract in the alternative, but merely a contract depending on a contingency, and therefore not within the above rule applicable to alternative contracts. However, in a subsequent case, of *Tate*vs. Wellings, (3 *T R.*531,) the court held that the defendant could not plead a contract, which was in the alternative as an absolute contract, though the option was in himself.” See also *Perry*vs. Porter, (2 *East,*2,) and *Skiphan vs. Saunders,*(2 *East,*4,) and *White*vs. Wilson, (2 Bos. *Pul.*119.) In the case last cited, Lord Eldon, C. J., said, “The contract in the alternative should have appeared on the record.” — In *Duvis*vs. Nichols, (2 *Chit.*R. 320,) *Dumpier,*J., said, “ There was a case where there was an alternative contract, and it was held it could not be declared upon but in the alternative.” In *Chitty's*treatise on pleading, the same doctrine is laid down, and reference is made to many of the above authorities. — 1 *Chitty, Plead.*4th cd. 269—En.]

(5)

 1 *Rol.*31, *l.*25.— *Com. Dig.,*tit. *Action upon the Case upon Assumpsit,*E.

(b)

**[See the authorities upon this point in a note of Mr. *Hammond*to *Com. Dig.,*tit. *Action, Cas Ass.*E, a, (p). — Ed ] *290contract between the minor and the defendant, the agreement was binding upon the latter, at common law; and that the former, having performed the services, might maintain an action thereupon. — 2 *Bai.*497.

A minor, authorized by his father to go out to service and receive his own earnings, may maintain an action tor them, though the above authority was not communicated to the employer when he hired the plaintiff. — *Corey*vs. Corey, 19 *Pick.*29.

If there were no express contract, the law implies one to pay the son, and not the father. — *Ibid.*

The plaintiff’s son, a minor, shipped as a seaman, in a whale-ship, without the plaintiff’s consent, and during the voyage unlawfully deserted. Held, the plaintiff could not maintain an action against the master, as upon an implied contract, for his son’s services, but his claim was upon the owners, a custom being shown, by which forfeited shares go to the owners alone. *—Bishop*vs. *Sheperd,*23 *Pick.*492. — F. H.]