Davis v. Preston , 6 Ala. 83 ( 1844 )

, GOLDTHWAITE, J.

There is some doubt with us, whether the plaintiff was entitled, under this contract, to recover the three hundred dollars agreed to be paid at the expiration of. the year; but however this may be, that was not the question raised in the court below. The defendant there insisted, that no recovery against him could be had, unless the service was performed for the entire time ; and that the plaintiff’s abandonment of his service previous to the expiration of the year, prevented any recovery in the action as brought. This view of the contract cannot be sustained. It is true, the argreement of the plaintiff was, to serve until the expiration of the year; but the defendant was to pay him one half in June, and the other in January afterwards. It may be conceded, therefore, that no recovery could be had for the last payment, and yet the right to receive the first would not be affected.

There is no doubt, we think, that a right of action accrued under this contract. The service contracted for was performed until the 1st of June, and the sum agreed upon was not then paid. The right of action for this sum being thus perfect, could not be destroyed by any subsequent conduct of the defendant; nor do we see how it could be affected by his claiming that more was due. The breach assigned in the declaration is, that neither of the sums of money, nor any part of them had been paid. The averment of performance is, that the plaintiff has done all things necessary on his part to be done; and it does not follow that, because the plaintiff has omitted to show he is entitled to recover both sums, that he is entitled to neither.

The case is not different from that of an agreement to pay a given sum in instalments ; and in such, when the consideration of the payment is services, it is only necessary to show a performance, pro rata. [Cunningham v. Morrell, 10 Johnson, 203.] A contract for the payment of distinct sums at different periods, is very much in the nature of distinct contracts; and an action of debt for each sum will lie as it becomes due. [Few v. Marsteller, 2 Cranch, 24.]

This view shows, that the court below properly refused to give the charges requested. Whether the defendant might not havehad another charge in his favor with respect to the second payment contracted to be made, need not be examined, as no opinion of the court was sought in that aspect of the case.

Judgment affirmed.