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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) online

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equally bound by the vendor's covenants. G. obtained judgment in foreign
attachment against H., and in a scire facias against W., as garnishee, it was
held there was a prima facie presumption that H.'s interest in the purchase-
money was equal with the other vendors. Weist v. Grant, 21 Smith 98. |j



128 SUPREME COURT [Dec, Term,

[PHILADELPHIA, JANUARY 11, 1840.]

Brotzman against Bunnell and Another.



IN ERROR.



An infant under seven years of age may be bound apprentice in any art.
mystery, occupation, or labor, with the assent of his parent, guardian or
next friend, under the act of 29th of September 1770.

ERROR to the Court of Common Pleas of Monroe County to re-
move the record of an action brought in that court, to December
term 1837, by Philip Brotzman against Jacob Bunnell and Solo-
mon Westbrook.

The action in the court below was debt to recover the penalty
given by the act of assembly for " harboring, concealing and enter-
taining," one John Hauser, the apprentice of the plaintiff.

On the trial the plaintiff proved the execution of the indenture
of apprenticeship, which was dated the 8th day of Nov. A. D. 1823,
and which witnessed that " John Hauser, son of John Hauser, de-
ceased, of Hamilton township, in the county of Northampton, by
*1 291 anc ^ w * fc ^ ^ e * consent f hi 8 mother, Christeen Hauser, as
-* testified by her signing as a witness hereunto, hath put him-
self, and by these presents doth voluntarily, and of his own free
will and accord, put himself apprentice to Philip Brotzman, of
Smithfield township, in said county, weaver, to learn his art, trade
and mystery, and after the manner of an apprentice, to serve him
from the day of the date hereof, for and during the full end and
term of fourteen years and twenty-three days, next ensuing."
Then followed the usual covenants, and the instrument concluded :
" and for the performance of all and singular the covenants and
agreements aforesaid, the said parties bind themselves each unto
the other firmly by these presents." This instrument was witnessed
by the mother of the apprentice, and acknowledged on the same
day before a justice of the peace.

Evidence having been given on both sides relative to the harbor-
ing of the apprentice by the defendants, the court, (Jessup, Presi-
dent), charged the jury upon the law as follows :

" The defendant's counsel have requested the court to charge the
jury, that if at the time the apprentice entered into the indenture
of apprenticeship he was within the age of seven years, then those
indentures would not be obligatory upon him ; and if he voluntarily
left his master the plaintiff cannot recover. The only evidence
submitted to the jury of the age of the apprentice, is that contained
in the indenture itself. It is dated on the eighth day of November
1823, and binds the apprentice to serve fourteen years and twenty-
three days. His age is not stated in the indenture, nor is there
evidence of his having been within the age of twenty-one years



1839.] OF PENNSYLVANIA. 129

[Brotzman v. Bunnell.]

when he left the plaintiff, except what is inferred from the period
of service stated therein. The binding in this case is not by a
father, exercising parental control, nor by overseers of the poor
under the provisions of the law, but by the minor himself with the
assent of his mother, as a parent, under the provisions of the first
section of the act of 29th September 1770. The mother only
assents to the binding. The act is that of the child and derives its
validity from its being the free and voluntary act of the child. If
it were not entered into voluntarily it would not be binding. In
order to a voluntary choice there must be the power of choosing,
and in order to this, there must be some knowledge of the thing to
be chosen. Such knowledge of the trade he was to learn as a child
of seven years would be possessed of, would not be sufficient for the
formation of such a choice as ought to be binding. Such a child
would be as easily induced to make his mark to one kind of inden-
ture as another almost any relative might act as the next friend of
the child under the act of assembly referred to, and if a child could
be bound at seven, it might be at five, or three or two years.
Some discretion beyond that possessed by a child of so tender years
is necessary to give validity to indentures of apprenticeship. The
court *are therefore of opinion that a child of seven years r*joQ
would be incapable of making such an indenture of appren- L
ticeship as would be binding ; and if the jury believe from the
evidence, that John Hauser on the 8th of November 1823, was less
than seven years of age, he having voluntarily left the service of
the plaintiff, then the plaintiff cannot recover."

The plaintiffs counsel excepted to this charge ; and a verdict
having been given for the defendants, the record was removed to
this court, and the following exceptions filed.

First. The court erred in charging the jury that such knowledge
of the trade he was to learn, as a child of seven years is possessed
of, is not sufficient for the formation of such a choice as ought to
bind him.

Second. The court also erred in so much of their charge as
instructs the jury that if they believed John Hauser was less than
seven years of age when he was bound, then the plaintiff could not
recover, &c.

Mr. Ihrie, for the plaintiff in error, cited Co. Litt. 172 ; 1 Bl.
Com. 467 ; 1 Woodess. 402 ; 2 Kent Com. 242 ; Respublica v.
Keppele, 1 Yeates 233 ; Commonwealth v. Eglee, 6 S. & R. 340 ;.
Guthrie v. Murphy, 4 Watts 80 ; Matter of McDowles, 8 Johns.
328.

Mr. Brodhead, contra, cited 1 Story 384 ; Bac. Abr., tit. Statute ;
Rutherford, B. 11, c. 7 ; Commonwealth v. Jones, 3 S. & R. 165 ;
Commonwealth v. King, 4 Id. 109.

5 WHARTON 9



130 SUPREME COURT [Dee. Term,

[Brotzman v. Bunnell.]

The opinion of the court was delivered by

SERGEANT, J. No limitation of time being prescribed by the
act of assembly of the 29th of Sept. 1770, within which an infant is
incapable of binding himself by indenture of apprenticeship, I do
not perceive how the courts can interpose it, without assuming legis-
lative power. The period of seven years, under which an infant is
at common law considered as not having discretion, applies only to
criminal cases. It has no connection with his ability to bind him-
self under the statute to learn a trade. In regard to the choice of
an occupation or the judicious selection of a master, he has probably
as little capacity at eight years of age as he has at six. In these
matters, in truth, no reliance is placed on the judgment of the in-
fant : they are left to the determination of the parent, or guardian
or next friend, whose assent is made indispensable to the validity
of the binding. It is of importance to the interests of the com-
munity as well as of the infant, that this power of binding should
be exercised ; and of the time when it is proper to exercise it,
others must judge for the infant, as he is incapable of deciding for
*-ioi-| himself. Cases may *occur, in which it may be expedient
-" that an infant under seven years of age should be provided
for by being bound an apprentice, and it may be manifestly to his
advantage to be so. We are of opinion, that the court below erred
in their charge to the jury, that if the apprentice was less than
seven years of age when bound, the plaintiff could not recover.
Judgment reversed and venire facias de novo awarded.



[PHILADELPHIA, JANUARY 11, 1840.]

Agnew against Dorr and Others.

IN ERROP

B. & A., residing in Philadelphia, made an assignment of all their estate
and effects, for the payment of such creditors as should " execute a full and
sufficient release and discharge of their debts, claims and demands, respec-
tively, to them, on or before the first day of October 1832. S. & D. & Co.,
merchants in New York, and creditors of B. & A., on the first day of Octo-
ber 1832, wrote a letter to the assignees, as follows : " We received per Mr.
W. B. (one of the defendants) this morning, a letter stating that you were
the assignees of B. & A.'s estate; and that the release would expire at 12
o'clock, M. this day. As there has been no schedule of their affairs presented
to us, or any assignment-release offered us for signature, (neither do we
know of any left in this city for signature) therefore we now, and by this
writing agree to become a party to the assignment and release left in your
hands, dated August 2d 1832, on condition of the same paying twenty-five
per cent, dividend on our claim and this shall be a full and free discharge
from all claims we may have against the firm of B. & A., the same as if we
had signed the release in your hands." This paper was signed " S. & F. D.
& Co., by S. F. D." In an action by S. & F. D. & Co. against B. & A., it
was held, that the paper was inoperative as a release under the assignment ;
1st, Because it was not under deal ; and 2d, On account of the condition
contained in it.



1839.] OF PENNSYLVANIA. 131

[Agnew . Dorr.]

THIS was a writ of error to the District Court for the City and
County of Philadelphia, to remove the record of an action on the
case, brought by Samuel F. Dorr, Francis F. Dorr and William
C. Allen, trading as S. & F. Dorr & Co. against William Brown
and William Agnew, late trading as Brown & Agnew, to recover
the amount of a promissory note drawn by the defendants in favor
of *Mr. H. C. Corbett, dated the 6th of March 1832, and r*-i 3.7
endorsed to the plaintiffs.

The plaintiffs filed in the prothonotary's office a copy of the note
upon which the suit was brought, and the defendants filed an affida-
vit of defence as follows :

" William Agnew, one of the defendants in the above case, being
duly sworn according to law, doth depose and say, that he has a
just defence to the whole of the plaintiffs' claim in the above case,
the nature and character of which is as follows, to wit : the said
plaintiffs, on the 1st day of October 1832, executed unto the de-
fendants a release, a copy of which is hereto annexed, and made a
part of the affidavit, marked (A) : and this deponent further says,
that the releasing creditors under the said assignment, obtained
fifty-nine cents in the dollar, and there is yet a further dividend to
be made ; that the said plaintiffs have not obtained a dividend by
reason of their laches in presenting their account ; that there are
yet sufficient funds left with the assignees to pay them over twenty-
five cents in the dollar, and proportionately with the other credi-
tors, if the said plaintiffs will present their demand to the assignees ;
and this deponent further states, that upon being threatened with a
suit, he, this deponent, made the tender in the manner and form
stated in the annexed paper marked (B), which is to be considered
part of this affidavit."

The paper referred to in the affidavit as a release, was as follows :

" New York, October 1st 1832.

Messrs. Henry McKeen and William H. Scott, assignees of Brown
& Agnew, Philadelphia.

Gentlemen:

We received from Mr. William Brown, this morning, a letter
stating that you were the assignees of Brown & Agnew's estate,
and that the release would expire at 12 o'clock, M. this day.

As there has been no schedule of their affairs presented to us, or
any assignment release offered us for signature (neither do we know
of any left in this city for signature,) therefore, we now, and by this
writing agree to become a party to the assignment and release, left
in your hands, dated August 2d 1832, on condition of the same
paying twenty-five per cent, dividend on our claim ; and this shall
be a full and free discharge from all claims we may have against



132 SUPREME COURT [Dec. Term,

[Agnew . Dorr.]

the firm of Brown & Agnew, the same as if we had signed the re-
lease in your hands.

Signed in our presence, the first day of S. & F. DORR & Co.

October. A. D. 1832, at half-past 10 by

o'clock, A. M. in the presence of S. F. DORR."

FRANCIS BENNETT,
W. C. ALLEN.

*1 331 *The following paper was also annexed to the afiidavit
- as evidence of a tender.

"New York, January 8th 1838.

E. H. Richards and Joseph Black called this day on S. & F.
Dorr & Co. and declared to Mr. Dorr, one of the firm, that they
came in the name of Brown & Agnew, and their assignees, to ten-
der them payment for a note, drawn by Brown & Agnew, twenty-
five per cent, with interest as per their release, a copy of which
they showed him, to which he replied, they had no such note now
in their possession ; had been sent to Philadelphia for collection,
had nothing to do with it, they having no power over the note, and
had no demand against them.

Amount of Note due 6th 9th September 1832 859.51

5 years', 121 days Interest, to January 8th 1838 275.19

$1134.70



25 per cent. 283.67

Amount tendered in specie."

The defendant afterwards filed a supplemental afiidavit of defence,
as follows :

" William Agnew being duly sworn according to law, doth depose
and say, that the annexed paper marked (C) is a true copy of the
assignment referred to in his original afiidavit, filed in the above
case ; and this deponent further states, that on the 24th day of
August 1831, an inventory and appraisement was filed according
to the act of assembly in such case made and provided, valuing the
property assigned at eighty-five thousand two hundred and eleven
dollars and seventy-eight cents ; and this deponent further states,
that the whole of the debts due by the assignors were but seventy-
three thousand dollars, or thereabouts, and that of these only about
sixty-seven thousand dollars, or thereabouts, were entitled to be
paid under the assignment, the holders of the residue having
neglected to release."

The assignment annexed to this afiidavit was dated the 2d
of August 1832, and was in the usual form. After providing



1839.] OF PENNSYLVANIA. 133

[Agnew v. Dorr.]

for the payment of certain preferred creditors, it proceeded as
follows :

" And the said assignees having so paid and satisfied the said
creditors of the first class, then in the second place, that they will
out of the residue or surplus in their hands, fully satisfy and pay
such of the other creditors of the said Brown & Agnew, as shall
execute a full and sufficient release and discharge of their debts,
claims and demands respectively, to the said Brown & Agnew, on
or before the first day of October 1832, at 12 o'clock (meridian)
but if the said residue of the trust estate should not be sufficient
fully to satisfy and *pay the said creditors of the second p*-. .
class, that then the said assignees shall pay them rateably *-
and in proportion to their respective claims."

A rule was obtained to show cause why judgment should not be
entered for want of a sufficient affidavit of defence ; which rule after
argument, was made absolute.

The defendant then took a writ of error.

Mr. F, W. Hubbett, for the plaintiff in error. The plaintiff
presents the release and shows a performance of the condition.

1st. The first question arising in the case is whether an instru-
ment not under seal is a release. This has been settled by this
court. Milliken v. Brown, 1 Rawle 391 ; and this case has guided
the profession ever since.

2d. But it is said that the condition of the assignment of Brown
& Agnew, for " a full and sufficient release," has not been complied
with. The assignment does not say that there shall be no condi-
tions in the release. It must be a full release that is, a release
of all demands. It must be a sufficient release that is, a binding
release. A release will bind the releasor, though he take nothing
under the assignment : Coe v. Hutton, 1 S. & R. 398. The
assigned estate has paid more than twenty-five per cent. and in
addition to this the plaintiff in error tendered to the defendants in
error on his own behalf, and on behalf of the defendants in error,
twenty-five per cent on their claims. Again, the qualification of
the release may be considered as a stipulation for further security
than the assignment ; thus being a fraud on the other creditors :
Wentz v. Dehaven, 1 S. & R. 312.

Mr. Gerhard, for the defendants in error. The instrument relied
on as a defence to the action if it can be called an instrument is a
parol release an accord and satisfaction. The alleged agreement
is between the defendants in error on the one part, and the assignees
of Brown & Agnew on the other part ; the letter is addressed by
the former to the latter ; and this letter is the only evidence of the
supposed contract. The subject-matter is the participation in the



134 SUPREME COURT [Dec. Term,

[Agnew v. Dorr.]

assigned estate, and the right to this constitutes the proposed con-
sideration on the one side ; the release of the claim of the defend-
ants in error, that on the other side. Whether then you regard
the parties to whom the letter was addressed, the subject-matter of
the contract thereby proposed, or the consideration contemplated
by the defendants in error, the same conclusion will be presented.
The letter proposed an agreement between the defendants in error
aud the assignees of Brown & Agnew. Having thus ascertained
the parties to the supposed agreement, the next point to be considered

*135~l ** 8 ' k w f &r an J contract can be deduced from the paper or

-" any other facts before the court.

To constitute a valid agreement, there must be proper parties
an agreement of such parties a subject-matter for the agreement
and a sufficient agreement. The only one of these requisites to
be found in the present case, in the subject-matter of a contract. If
the letter be examined, it will be found to be written by persons
entirely ignorant of their rights of the requirements of the law in
relation to the subject before them. They evidently supposed that
they could come in under the assignment, though they stipulated for
twenty-five per cent., at least on their claim, as a condition to their re-
lease ; and that the assignees, as assignees,.could receive such a con-
ditional stipulation to release as a release under the assignment. It is
evident that the assignees could receive no such an agreement ; and
hence there is wanting proper parties to the proposed contract.
Again, an offer was made by the defendants in error to the assignees,
but where is the evidence of its acceptance ? It never was ac-
cepted by them, and never became a contract or agreement. And
lastly, there is no consideration ; which is especially necessary in
contracts like the one supposed to exist in the present case. White-
hill v. Wilson, 3 P. & R. 405. The defendants 'in error are enti-
tled to the precise consideration stipulated for, if they are to be
held bound. That consideration was the right of participation in
the assigned estate^not twenty-five per cent. as it would seem
the plaintiff in error supposes but twenty-five per cent, at least,
and as much more as the estate would afford ; now it would seem
that the assigned estate has already paid the releasing creditors
fifty-nine per cent., and will pay him more. The only evidence of
any acceptance of the defendants in error is in W. Agnew's affida-
vit of defence, in which he swears that he offered $283.67 cents to
persons who denied that they were the holders of the note in ques-
tion ; but the offer was not made to William Agnew, nor could he
have accepted it, even had he been willing to have done so, within
a reasonable time after we made the offer ; he even showed no in-
clination to accept the proposition until five years had elapsed, when
even the assignees could not have barred us by an acceptance.
These are general principles, and sufficiently meet our case; but



1839.] OF PENNSYLVANIA. 135

[Agnew v. Dorr.]

the alleged agreement is a special one, and is specially construed
by the laws. It seems to be perfectly well settled, that an agree-
ment to deliver goods, or a less sum of money and goods for the
residue, in discharge of a greater sum, must be fully executed,
otherwise it is no extinguishment. 4 Watts 126, 378; Rice v.
Morris, 4 Whart. 249; Levering v. Rittenhouse, 4 Id. 138; Coit
v. Houston, 3 Johns. Chan. 243. And a tender, even if sufficient
in amount, made five years after an agreement, by which it would
become immediately payable, if it all, can be no execution of the
contract.

*The opinion of the court was delivered by
GIBSON, C. J. Were not this the case of a trust, the
meaning which we would be bound to assign to the technical word
release, would be decisive. But even interpreting the deed like a
will, which according to the rule of Lord Somers, in Sheldon v.
Dormer, 2 Vern. 311, we are bound to do, we must say that the
assignor stipulated for a legal, and not an equitable release. In
popular as well as in technical apprehension the release of a debt
is a discharge of it by writing under seal ; and the assignor must
be taken, at the utmost, to have used the word as it is used in com-
mon parlance. But there are considerations peculiar to this species
of trust, which require that the trustees be not left to grope their
way through doubts and difficulties in the execution of it. The
office is sufficiently perilous without involving them in uncertainties
which might lead to mispayments ; and they are to be protected
where they have followed the plain and obvious directions of the
assignor. If the paper in question, then, is not a release to have
brought them within the benefits of the trust, it is not a release to
bring them within its disabilities ; and what effect might the trus-
tees safely have given it on an application to them for a dividend ?
It will not be pretended that they might safely have treated it as
performance of the condition. Objection could not be made that it
was executed only by one of the partners ; but it is not a deed, nor
does it contain the operative words of a release. Those according
to Littleton, 445, are remise, release and quit claim ; to which
Lord Coke has added renounce, and acquit, intimating at the same
time that some others may have the same effect, as where the lessor
grants to the lessee for life, that he shall be discharged of the rent.
1 Inst. 264. Perhaps at this day any words distinctly evincive of
a present purpose to remit, would be as operative. In the paper
before us, however, nothing is signified but an agreement to become
party to an instrument which was then a hundred miles distant;
and surely that is not to be taken as an equivalent for an execution
of it. It is true that a verbal promise is susceptible of a verbal
discharge before breach of it as it is said in Co. Litt. 246, b. ; but



136 SUPREME COURT [Dec. Term,

[Agnew v. Dorr.]

that there can be no release of a right in a chattel without deed,
appears in Jennor and Hardy's case, 1 Leon. 283. In its frame
and execution, therefore, the paper is deficient. But independent
of that, it contains a condition which would mar it were it ever so
unexceptionable in other respects. The assignment was for the
benefit of those who should execute "a full and sufficient release;"
and the plaintiffs released only on condition that the fund should
yield them at least twenty-five per cent. How could its capacity to
do so be ascertained in the first instance ? yet they might be called
on for pro rata dividends before all the assets were collected. Be-
sides, a full release was intended to be an absolute one. If these
*1371 * con ditional discharges were admissible, the trustees might
J be involved in an inextricable labyrinth of discordant condi-
tions for payment, in every proportion which the calculation or
caprice of the creditors might dictate. But it is suggested on the
authority of Coe u. Hutton, 11 S. & R. 398, that the debt may be
gone, though the creditor may not have entitled himself to come
upon the fund. It is certain that a technical release will discharge
a duty at law, without consideration for it, and that chancery will
not relieve against it where the releasor has acted with full knowl-
edge of all necessary circumstances. Not such the effect of a
naked agreement which is executory, and whose force depends on
the consideration which is to support it. To be let into a participa-
tion of the fund, was a consideration for which the plaintiffs stipu-
lated as a condition precedent to parting with their debt ; and their
agreement could not be enforced, in equity or at law, without a per-



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) → online text (page 15 of 71)