McHenry County IL Archives Court.....Dufield, V Cross 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 12:00 pm

Source: Records Of Cases Illinois
Written: 1850

James Dufield, appellant, v. Elisha A. Cross, appellee.

Appeal from McHenry.

It is erroneous to instruct a jury in such language as assumes that a 
settlement can only be proved by the admissions of the plaintiff in the suit. 
The declarations of a party are admissible in evidence against him, and are to 
be received and considered by the jury. Although such declarations are not 
made deliberately, the jury must determine what weight shall be given them. 
(a) 
The right of action for services rendered by a minor, is in the parent or 
guardian. (b)

This action was brought in the McHenry Circuit Court, by Cross against 
Dufield; and was tried before Henderson, Judge, and a jury, at April term, 
1850; and resulted in a verdict and judgment favor of Cross, for the sum of 
$160.

The facts necessary to a full understanding of the opinion of the court, are 
set forth in it.

T. L. Dickey, and Strode & McClure, for appellant.

Loop & Hurlbut, for appellee.

Treat, C. J. This was an action of assumpsit for work and labor. It appeared 
from the evidence, that, in 1838, the plaintiff was placed by his mother with 
the defendant, to remain until he should become of age. He continued with the 
defendant until the spring of 1849, when he received a horse of the value of 
$140, and went to Wisconsin. He afterwards returned, and performed some 
further service. He became of age in the latter part of 1848. While with the 
defendant, he was treated as a member of his family. The plaintiff introduced 
evidence of the value of his services, as well before, as after he attained 
his majority. The defendant proved some payments, and also admissions of the 
plaintiff made on several occasions and under different circumstances, to the 
effect that a settlement had taken place, and that he was to wait on the 
defendant for the balance found due him until the fall of 1851. At the request 
of the plaintiff, the court instructed the jury, "that unless they believed 
from the evidence, that the plaintiff in this suit deliberately and distinctly 
admitted, that he had settled up with defendant all matters involved in this 
case, which settlement was agreed at the time to be in full of all demands, 
then the plaintiff is not cut off from recovering for his work and labor, not 
included in the settlement, such amount as the jury considers proved."

The instruction was erroneous, and calculated to mislead the jury. It is 
subject to several exceptions. It assumed that a settlement could only be 
proved by the admissions of the plaintiff. But as the evidence tending to show 
a settlement consisted mainly of the declarations of the plaintiff, this 
branch of the instruction may not have prejudiced the defendant. Again, the 
instruction applied an improper test to the admissions. It in effect wholly 
excluded them from the jury, unless they were deliberately and distinctly 
made. The declarations of a party are admissible in evidence against him, on 
the principle that what he says against his interest may be considered as 
true. They are, indeed, often of an inconclusive and unsatisfactory character, 
depending very much on the circumstances under which they are made. But they 
are to be received and considered by the jury, in connection with the other 
evidence in the case. It is the province of the jury to determine what weight 
shall be given them. If the jury are satisfied that the declarations are true, 
then they are bound to regard the facts as proved, and decide accordingly. The 
true test in this case was whether the admissions satisfied the minds of the 
jury that a settlement had been made, and not whether the admissions 
themselves were made in a particular manner. There is another objection to the 
instruction. It left the jury at liberty, in the event they came to the 
conclusion that there had been no final settlement, to take into consideration 
the services of the plaintiff while a minor. The plaintiff had no legal claim 
to compensation for those services. The right of action, if any existed, was 
in the mother, who was entitled to the labor of her son, and who put him in 
the service of the defendant. From the amount of the verdict, it is very 
evident that something was allowed the plaintiff on account of services 
performed before he was of full age.

The judgment is reversed, and the cause remanded.

Judgment reversed.

--------------------
(a) See Young v. Fonte, 43 Ill., 33 (annotated edition), and note.

(b) Where one of age brought suit for services rendered while a minor, and the 
father of plaintiff was called as a witness, and made no claim to the wages, 
the court held that as they could infer from the father's testimony that he 
had emancipated his son at the time the work was done, a recovery would be a 
bar to any action the father might bring afterwards for the same services: 
Scott v. White, 71 Ill., 287.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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