Weil v. Finneran , 70 Ark. 509 ( 1902 )

Hughes, J.,

(after stating the facts.) The appellant sued for a breach of contract. He was entitled to recover on a quantum meruit. The proof shows that he entered upon the performance of his undertaking, rendered some services, and expended under the contract for the benefit of appellee $153.16, which she was bound to repay. That she discharged him before completion of his contract without fault on his part, so far as the proof shows. He was certainly entitled to recover something. He could not in this suit recover for the whole amount because the estate was in administration, and the debts not settled, and therefore his interest could not be ascertained.

In the case of Van Winkle v. Satterfield, 58 Ark. 621, it is said that “d servant who has been wrongfully discharged by his employer before the time for which he was hired has expired has these remedies: First, he may consider the contract as rescinded, and recover on 'a quantum meruit what his services were worth, deducting what he has received for the time during which he had worked. Second, he may wait until the end of the term, and then sue for the whole amount, less any sum which the defendant may have a right to recoup. Third, he may sue at once for breach of the contract of employment. He, however, can adopt only one. If he adopts the third remedy, he can recover the damages which he has sustained down to the day of the trial, which is limited to a compensation for the injury suffered by a breach of the contract. The loss of the wages which his employer agreed to pay him constitutes the injury. What, therefore, he has suffered by reason of the loss of the wages, as a rule, is the amount of the damages he is entitled to recover.”

It follows that, as the appellant adopted the third remedy mentioned above, his suit was not prematurely brought, and the court erred in so holding and dismissing the plaintiff’s suit. For which error the judgment is reversed, and the cause is remanded for a new trial.

Bunn, C. J., and Battle, J., not participating.