Allen v. Colliery Engineers' Co.

Opinion by Mr. Justice Fell, The judgment appealed from was entered on a demurrer to a surrebutter. We are asked however to determine the right of the plaintiff to recover without regard to the technical questions raised by the pleadings. The facts alleged are that the plaintiff was employed by the defendant as a manager of a branch of its business for one year beginning January 12, 1898, at a salary of $75.00 per week; on July 2, 1898, he was discharged without cause ; on July 18, he sued the defendant for two weeks’ salary in the district court of the city of Brooklyn, New York, and recovered a judgment therefor, which has been paid. This action was brought after the expiration of the time for which the plaintiff was employed to recover the salary for the balance of the year. The defendant pleaded the recovery of the judgment in New York in bar. It is conceded that while the plaintiff was in the employ of the defendant he could have maintained a separate action for each week’s salary as it became due; but it is contended that after his discharge his only remedy was an action for damages for breach of the contract, and that as there can be but one recovery on that ground he is concluded by the action brought in New York. The generally recognized rule is that an employee for a fixed period who has been wrongfully discharged may either treat the contract as existing and sue for his salary as it becomes due, not on a quantum meruit, but by virtue of the special contract, his readiness to serve being considered as equivalent to ac [519] tual service, or he may sue for the breach of contract- at once or at the end of the contract period, but for the breach he can have but one action: 2 Smith’s Leading Cases, 38, note to Cutter v. Powell; 7 Am. Law Reg. (N. S.) 148, note to Huntington v. Odgensburg, etc., R. R. Co. Our cases are in entire harmony with this rule. In Algeo v. Algeo, 10 S. & R. 235, it was held that where the performance of service had been prevented by the discharge of the employee, he must declare on the special agreement and could not' recover on the implied promise, as the law would infer a promise from the acts of the plaintiff only and not from the acts of prevention by the defendant. In Clay Commercial Telephone Co. v. Root, 17 W. N. C. 200, the plaintiff sued during the contract period on an agreement which, as in this case, was- severable because the consideration was apportioned. In the opinion in Kirk v. Hartman, 63 Pa. 97, it was said by Sharswood, J., “ that a servant dismissed without cause before the expiration of a definite period of employment could maintain an action of debt on the special agreement.” It follows that if the recovery in the New York court was for the instalments of salary then due as alleged in the declaration in this case the plaintiff may maintain his action; if it was for damages for the breach of the contract as averred in the plea filed, he is concluded by it. There is nothing in the record before us which throws any light upon this question, and the case must go back for decision in the common pleas. The judgment is reversed with a procedendo.