Howay v. Going-Northrup Co.

The opinion of the court was delivered by

Dunbar, J.

This is an action by a discharged employee against the employer. In August, 1898, the appellant hired the respondent for the term of one year, :at a specified rate of wages. Respondent entered into the service of the appellant and was, on November 26th, discharged and paid in full up to the time of discharge. On November 28th, the respondent brought suit against the appellant, claiming damages for breach of contract, by reason of his wrongful discharge, in the sum of $722, which was the amount that would have been due him at the end of his term of employment, he having given credit for the amount paid him at the timé of his discharge. The complaint is brief, alleging the contract of employment, which was in writing; the' wrongful discharge and refusal of the appellant to allow the respondent to continue or remain in its employ; alleging faithful and efficient service on his part in every way in the performance by him of the contract; alleging that by reason of the wrongful discharge by appellant he has been damaged in the sum of $722; and praying judgment for that amount. A demurrer was interposed to the complaint and was overruled. Objection'was raised to the admission of testimony under the complaint, for the reason that it did not state a cause of action, which objection was overruled. A default was prayed for at the close of the testimony, which was also denied. Judgment was rendered for $300. The judgment was based evidently on the salary contracted for, less the amount paid and less the salary for the time during which plaintiff had obtained other employment; he testifying that for a portion of the time during the term for which he was employed by appellant he had obtained other employment.

It will be noticed that this suit was brought two days after the discharge of the respondent by the appellant, but it was not tried until the term of employment under the contract had expired. It is the contention of the appellant that the complaint does not state facts sufficient to constitute a cause of action, (1) because there is no sufficient allegation of damages for breach of contract, and (2) because it is not-alleged, in terms, that the respondent ever offered to continue in the employment or offered to perform work for the appellant. Without setting forth in full the language of the complaint, we think it sufficiently appears that the respondent was prevented from performing his portion of the contract. Hor do we think, under the authorities as contended for by the appellant, that the recovery of' the respondent should be limited to the damages accruing between the breach of the contract and the time of the commencement of the action, which in this case would be nominal, the time being only two days. There has been some conflict of authority oh this proposition, and the 14 Am. & Eng. Enc. Law, p. 797, cited by appellant to sustain its contention, under the subject of “Remedies of Servant for Wrongful Discharge,” is as follows:

“Where an employee for a fixed period, at a salary for the period, payable at intervals, is wrongfully discharged, he may pursue any one of four courses:

1. He may sue at once for a breach of contract, . . .

2. He may wait until the end of the contract period, and then sue for the breach.

3. He may treat the contract as existing and sue at each period of payment for the salary then due.

4. He may treat the contract as rescinded and sue immediately on a quantum meruit for the services performed. .. .”

But in the first instance it is said he can- only recover his damages up to the time of bringing suit. In support of this proposition that the plaintiff can recover damages only up to the time of bringing suit, the following cases are cited: Colburn v. Woodworth, 31 Barb. 381; Booge v. Pacific Railroad, 33 Mo. 212 (82 Am. Dec. 160) ; Nations v. Cudd, 22 Tex. 550; Gordon v. Brewster, 7 Wis. 355; and many others. But these cases do not sustain the text. All that is held in Colburn v. Woodworth, supra, is that these remedies are not cumulative, and that an action.upon one and judgment upon it will operate as a bar to any further action; that the error, if any, should he corrected in that action by review of the verdict or judgment and not by a new action for the same cause. The question of whether the plaintiff could recover damages only up to the time of bringing suit was not involved or discussed. Booge v. Pacific Railroad, supra, involves exactly the same proposition. In Nations v. Cudd, supra, the rule laid down in Meade v. Rutledge, 11 Tex. 44, and Hassell v. Nutt, 14 Tex. 260, that the discharged servant could maintain his action for damages immediately upon the breach of the contract by his employer, was sustained. In Gordon v. Brewster, supra, it was decided that the measure of damages was the rate of the salary from the time of the breach up to the time of the trial, less the amount plaintiff might have earned in the meantime, hut that the damages could he computed and recovered only from the time of the breach up to the time,of the.trial. In that case the court said:

“Had the respondent seen fit to wait before bringing his action until the period had elapsed for the complete performance of the agreement, the measure of compensation would then have been easily arrived at. We suppose he would then have been entitled to the entire amount of his salary, less what he would have reasonably earned during the time covered by the remainder of the contract in laboring elsewhere. But as the case now stands, we think he was only entitled to recover his salary on the contract down to the day of trial, deducting therefrom any wages which he might have received, or might have reasonably earned in the meantime. This rule appears to us to be the most equitable and safe of any that occurs to our minds, and the one most likely to effect substantial justice between the parties.”

It will thus appear that exactly the contrary doctrine was held from that announced by the learned author of the Encyclopedia, above quoted. The same rule is adopted by Sutherland on Damages (2d ed.), § 692, in which the case of Gordon v. Brewster, supra, is reviewed and the rule announced indorsed. The case of Everson v. Powers., 42 Am. Rep. 319, is a case exactly parallel with the case at bar. Said the court:

“The only question presented upon this appeal relates to the rule of damages to be applied in an action for a breach of a contract of employment where the servant has entered upon the performance of a contract, has been discharged, and brings his action before the expiration of the term, but the trial does not occur until afterward.”

After discussing the contention which the appellant makes in this ease, the court says:

“The plaintiff’s cause of action arose at the time of the breach of the contract, and he was then entitled to sue and recover such actual damages as the evidence upon the trial showed he had sustained by the defendant’s breach. It is the breach and not the time of complaining of it which gives the damages

citing Lord Mansfield to the effect:

“It is agreeable to principles of common law that whenever a duty has incurred pending the writ, for which no satisfaction can he had by a new suit, such duty shall be included in the judgment to be given on the action already pending;”

citing, also, Sedgwick on Measure of Damages (1st ed.), 107, to the effect: .

“If the original tort or breach of contract is such that the plaintiff would be entitled to nominal damages, then he can go on to give evidence of those consequences of the. act which are immediately traceable to it, although they have taken place after the commencement of the suit.”

And the following from the same author (p. 122, 6th ed.) :

“If there is a breach of contract, the right to nominal damages exists at once to vindicate the right, and suit may be brought. If those consequences for which the law renders the party in default responsible have developed themselves so as to create absolute injury before the verdict, the jury are bound to give compensation for such injury; but If at the time of the trial the loss is still only probable, the verdict should be for nominal damages.”

In concluding the opinion, the court in that case said:

“Where the cause of action is commenced during the term but the trial occurs after the expiration of the term of service, we can see no reason why the plaintiff may not be permitted to recover the same damages that he would have been entitled to recover had the action been commenced after the expiration of the term.”

This, we think, voices the weight of authority on this subject. It is insisted that the court erred in its first and second instructions, and should have given the instruction asked for in lieu thereof by the appellant; but we think the court’s instructions were substantially as asked for by the appellant, and the court was under nc obligation to incorporate the language of the appellant into its instruction. The other instructions complained of are based upon the theory of the appellant that no damages could he recovered which had accrued after the commencement of the action, and this objection is disposed of by what we have said in relation to the sufficiency of the complaint.

ISTo error appearing in the trial of the cause, the judgment is affirmed.

Reavis, O. J., and Fullebton and Andebs, JJ., concur.