Davis v. Ayres , 9 Ala. 292 ( 1846 )

COLLIER, C. J.

It is laid down in many of the books, that where there is an express agreement for particular services, for a definite time, and the plaintiff is discharged by the defendant before the time has elapsed, and is prevented from performing the services, he must declare on the special agreement. [Algeo v. Algeo, 10 Sergt. & R. Rep. 235; 9 Peters’ Rep. 541; see also, 3 Sergt. & R. Rep. 505; 11 Wheat. Rep. 237; 2 East’s Rep, 145; 9 Conn. Rep. 564; 5 East’s Rep. 316.] So it has been held, that where payment is to be made by bill, at so many months after date, and the defendant refuses to accept, the plaintiff must declare 'specially for the breach, (4 East’s Rep. 147; 9 Id. 498;) but after the time has expired indebitatus assumpsit will lie. [1 N. Rep. 330; 2 Stark. Rep. 227; 3 B. & P. Rep. 582.]

The first count sets out the contract for four months’ service, at fifty dollars per month, the defendant’s refusal to permit a performance, then states the expiration of that period, and deduces as a consequence the ¡liability of the defendant to pay for the entire time, the sum of two hundred dollars. This count certainly discloses the agreement of the parties according to the proof; but after doing this, it alledges that the four months had expired. Now although this allegation may have been true, at the time the declaration was filed, yet if the test of the writ, and the date of its service are to be accredited, the term for which the plaintiff stipulated to render service had not ended when the suit was commenced.

There can be no question but it was competent for the plaintiff, immediately upon the refusal of the defendant to permit him to become his cleric, to institute his action. Then the defendant committed a breach of his contract, and it was competent for the plaintiff to avail himself of it, without waiting for the damages to become fully developed. In Wilcox et al. v. Plummer’s Ex’r, 4 Peters’ Rep. 172, it appears, that, an attorney, in whose hands an indorsed note was placed for collection, sued the maker, who proved insolvent; he then issued a writ against the indorser, but mistook the plaintiffs names, and they were non-suited, previous to which time the statute of limitations operated a bar. The question was, in an action against the attorney, whether the statute of limitations began to ran when the attorney ought to have sued the indorser, or when he committed the blunder in issuing the writ. The court said, “ when the attorney was chargeable with negligence, or unskilfulness, his contract was violated, and the action might have been sustained. Perhaps, in that event, no more than nominal damages may be proved, and no more recovered ; but on the other hand, it is perfectly clear, that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear, the damage is not the cause of action.” See also, Mardis’ Adm’rs v. Shackleford, 4 Ala. Rep. 506-7-8.

It is very explicitly stated, in the case cited from 4 Peters, that the cause of action results from the breach of duty, and that the plaintiff may recover, not only for damages actually sustained previous to the commencement of the action, but for such as may occur in consequence of the breach up to the time of trial. Here the defendant agreed to accept the plaintiff’s services, and pay for them; he refused to permit him to enter upon the employment, thereby dissolving the contract, and discharging the plaintiff from the obligation to perform it. [Miller v. Ward, 2 Conn. Rep. 494; Whitney v. Brooklyn, 5 Conn. Rep. 405; see also, 9 Conn. Rep. ut supra.

From this view of the law, we think the proof made out a case which entitled the plaintiff to recover on the first count. That count states the case specially, and whether the allegation, that the four months had expired, be referrable to the suing out of the writ, or the filing of the declaration, we think not at all material; for however it be considered, the proof is ample to show a good cause of action, which is in no manner affected by it. And as for the damages, these we have seen might be calculated up to the day of the trial of the issue, if they had been increased since the breach of the defendant’s contract.

The consequence is, that the judgment of the Circuit Court is affirmed.