Rogers v. Parham , 8 Ga. 190 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

[1.] There are but two questions presented by the record in this case, for our judgment. 1st. Did the Court err in refusing to non-suit the plainliff ? It appears that the plaintiff and defendant entered into a written, special contract, by which the former was to act as the overseer of the latter, for the year 1847, and to receive a stipulated portion of the crop for his services. The plaintiff alleges that the defendant, in the month of August, dismissed him from his employment, and this suit was instituted in November, 1847, to recover damages from the defendant, for a breach of his special contract. The defendant insisted, that the plaintiff should be non-suited, because the action was prematurely brought; that the action could not be maintained against the defendant for a breach of the contract, until the expiration of the year 1847. We are of the opinion the Court below properly overruled the motion for non-suit. In regard to this particular class of special contracts, we adopt the rule stated by Smith, in his note to the case of Cutter vs. Ponell. When the overseer or agent is wrongfully dismissed from the service of his employer, he has his election of three remedies.

1st. He may bring an action, immediately, for any special injury which he may have sustained, in consequence of a Ireach of the contract.

2d. He may wait until the termination of the period for which be was employed, and then sue upon the contract and recover his whole wages.

3d. He may treat the contract as rescinded, and may immediately sue, on a quantum meruit, for the work and labor he actually performed. 2 Smith’s Leading Cases, 27.

Here, the plaintiff has elected to sue immediately for the special injury, which he alleges he has sustained by the breach of the defendant’s contract, as was done in the case of Masterton vs. The Mayor of Brooklyn, (7 Hill’s N. Y. Rep. 61.) That the plaintiff might have sued before the end of the year, for any special injury which he may have sustained in consequence of the defendant’s breach of the contract, I do not doubt; but inasmuch as the plaintiff in this case has alleged no other injury, arising from the breach of the contract, than that stipulated by the contract itself, to wit: the non-payment to him of the value of his part of the crop, I have a doubt in my own mind, whether this is not substantially an action on the contract itself, to recover the plaintiff’s share of the crop, stipulated by that contract, to be paid him at the end of the year. However, my brethren are very clear, that it is an action for a breach of the contract, and, as I believe substantial justice has been done between the parties by the verdict, I concur with my brethren in their judgment, in overruling the motion for a non-suit.

The second ground of error taken, is to the charge of the Court to the Jury. The Court charged the Jury, that if the parties mutually agreed to rescind the contract, before the end of the year, the plaintiff in this form of action was not entitled to recover; but if the defendant dismissed the plaintiff from his service, without sufficient cause or provocation, the plaintiff is entitled to recover whatever damages he has actually sustained. As to the fact of the parties mutually agreeing to rescind the contract, the testimony was conflicting, and that question was properly left to the Jury. We are of the opinion there was no error in the charge of the Court to the Jury, in point of law.

Let the judgment of the Court below be affirmed.