Fowler v. Armour , 24 Ala. 194 ( 1854 )

PHELAN, J.

The first count in the declaration is a good count on a special contract for wages, and with the liberal indulgence shown to declarations under our laws and rules of practice, we might be even disposed to hold it good as a count for breach of the contract, if that were necessary to sustain the judgment below. —Davis v. Ayers, 9 Ala. 292.

But, whether the action is to be treated as one for damages arising from a breach of the special contract, alleged and proven, or for wages due according to contract, the charge of the court we conceive to be erroneous.

The proof shows, that Armour engaged with the plaintiffs in error to serve them for one year from the 10th May, 1852, at |40 a month, payable monthly, as an engineer at their saw-mill. Armour served a few months, and was then taken sick, and was absent for a time. When he returned and offered to continue his services, the plaintiffs in error refused to permit, him to continue them any longer. He then brought, this action, and the writ was executed 3rd of September, 1852. The trial below took place 21st of March, 1853.

The conduct of plaintiffs in error, if they refused, as he avers, to permit him to continue his services as engineer, without fault on his part, left open to Armour two modes of redress by suit: he could either treat the contract as rescinded, and sue immediately for a breach of the contract; or he might treat the contract as still subsisting, and bring his action for the wages due him according to the contract.

If he had sued for breach of the contract as upon a rescission, his action would necessarily be for unliquidated damages. He would be entitled to recover the actual damage he had sustained by breach of the contract on the part of the plaintiffs in error, in refusing to permit him to go on with his services ; and in that case he would be allowed to prove any such actual damage — the natural and proximate consequence of such breach — as had sprung up or developed itself up to the time of the trial.' —Davis v. Ayers, 9 Ala. 292; 4 Peters 172.

But in such case, the amount of wages for which he had stipulated would not be the measure of damages. His actual damage, all the circumstances considered, whether more or less than that, would be the true measure of the amount which he would be entitled to recover. The amount of wages for which he had stipulated might very properly be taken into consideration by the jury, to aid them in forming a correct estimate of the actual damage he had sustained, but would not be, of itself, the exact measure of such actual damage.

If, on the other hand, he sued for the wages due according to the contract, his action- would, of course, be one for liquidated damages. If entitled to recover at all, it must be, not for the breach of a contract which, on account of the unlawful act ef the other party, he treats as no longer subsisting between them, but for the breach of the stipulations of a contract which he treats as still subsisting. If, then, he recovers in such an action, it must be his wages, the specific sum agreed to be paid for his services; and, moreover, if the suit is on the contract for the wages due according to its terms, the wages must be due and payable, in fact, before any action for them can lawfully be commenced: that is, Armour must have either done the service, or have been ready and willing to do it, for the. whole time for which he brings suit. Under this contract, he could have brought suit at the end of every month, or of three, five, or any other number of months, the wages being expressly made payable monthly. —Davis v. Preston, 6 Ala. 83; 10 Johns. 203.

Now, under the first aspect of the case, that is, supposing the action to be for the breach of a rescinded contract, the charge of the court is erroneous; because the jury are instructed* “if they believe,” &c., “then he (Armour) was entitled to recover ; and the measure of damages in his favor would be, the amount of monthly wages, as specified in the contract, down to the end of the month next before the trial of the cause.” The amount of wages agreed to be paid by the terms of the contract, as we have shown, would not be the true measure of the actual damage resulting in such case; and that alone is the true measure, when the action is for a breach of the contract which one party treats as no longer subsisting, on account of the refusal of the other party to perform his stipulations.

But, if the action is to be regarded as one founded on the contract as still subsisting, the charge of the court is erroneous ; for, in the face of the pleadings, and the proof, showing that the contract was entered into 10th of May, 1852, the writ executed 3rd of September, 1852, and that the trial took place 21st of March, 1853, the jury are instructed, “if they believe,” &c., then the plaintiff was “entitled to claim from the defendants the wages according to the contract, from the time the contract was commenced to be performed, to the expiration of the month immediately preceding the trial.” This would be allowing a man to sue for and recover wages before his wages were due — before he had either performed his work, or offered to perform it according to his contract; which is contrary to well settled principles. The distinction is this : If the action be for breach of a contract still subsisting, and for liquidated damages, the action cannot be properly brought, until the sum is due and payable by the terms of the contract, and the plaintiff cannot recover more than is due at the time of suit brought; but, if one party commits such a breach of the contract, that the other party is for that reason at liberty to treat it as rescinded, and does so, he may sue for such breach of the contract immediately; and his recovery, in the latter case, will be such actual damage as he can show to have been the natural and proximate consequence of the act of the other party, up to the time of the trial. —9 Ala. 292; 11 ib. 375; 2 Green. Ev. §§ 253, et seq.; 6 Ala. 83; 10 Johns. 203.

The judgment is reversed, and the cause remanded.