Brand v. Ogden-Howard Co.

Boyce J. (delivering the opinion). The plaintiff brought this action in covenant to recover damages for the breach of an employment contract, after having recovered a judgment in a former action, on appeal from a justice of the peace, based upon the same contract. Weekly wages had been paid to the plaintiff as agreed upon up to the time of his discharge. But he had performed services during the first three days of the week in which he was discharged, and for which he had not been paid at the time he brought his first action. It is obvious from the pleadings that the first action on appeal, originally brought by the plaintiff before the justice against the defendant, was intended for the recovery of a week’s wages as wages under the contract of service. And in bringing that action, the plaintiff proceeded upon the theory that he was entitled to such a recovery for the three days of services actually rendered, and for the remaining three days of the week upon the ground of his readiness and willingness to perform his contract services, but had not been allowed to do so. The language of the pro-narr filed in that action is consistent with this theory, because the cause of action and sum demanded were manifestly intended to cover services not performed as well as services performed during the week. The action was in debt as for a liquidated sum — a week’s wages, as were the several other actions brought before the justice, before bringing the present action in covenant. That part of plaintiff’s demand covering services for three days not performed, to say nothing of the services performed for three days was, in legal contemplation, for breach of the contract of employment; for it could have been for nothing else except for services never rendered, and a recovery therefor was a recovery [99] for damages and not for wages, regardless of the fact that the action was in debt, a form of action not appropriate to the cause of action. An employe wrongfully discharged before the expiration of his term of service may treat the contract as rescinded, and at once bring an action for the value of the services rendered; or he may treat the contract as continuing and sue for a breach thereof, and recover his probable damages occasioned by the breach; or, in some cases (consideration being given to the statute of limitations), he may defer action until the end of the term, and sue for the actual damages he has sustained, which, however, in no case can exceed the wages for the entire term. He will not be allowed to pursue more than one of these remedies, and no matter which of them he elects, his action is one for damages and not for wages as wages, and a recovery is a bar to any other or further action upon the contract of employment. Note to McMullan v. Dickinson Co., 51 Am. St. Rep. 515 (60 Minn. 156, 62 N. W. 120, 27 L.R.A. 409); Colburn v. Woodworth, 31 Barb. (N. Y.) 381; Saxonia, etc., Co. v. Cook, 7 Colo. 569, 4 Pac. 1111; Booge v. Pac. R. R. 33 Mo. 212, 82 Am. Dec. 160; Soursin v. Salorgne, 14 Mo. App. 486; Bennett v. St. Louis, etc., Co. 23 Mo. App. 587; Fowler v. Armour, 24 Ala. 194; Miller v. Goddard, 34 Me. 102, 56 Am. Dec. 638; Britt v. Hays, 21 Ga. 157; Rogers v. Parkham, 8 Ga. 190; Gardenhire v. Smith, 39 Ark. 280; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Weed v. Burt, 78 N. Y. 191; Keedy v. Long, 71 Md. 385, 18 Atl. 704, 5 L. R. A. 759, and note to Decamp v. Hewitt, 43 Am. Dec. 205. The reason that the discharged employee can bring but one action is because the contract of employment is entire and indivisible, and the discharge is a single act constituting but one breach, and damages for such a breach can be recovered in but one action. The Ogden-Howard Co. v. Brand, 7 Boyce, 482, 108 Atl. 277, Alie v. Nadeau, 93 Me. 282, 44 Atl. 891, 74 Am. St. Rep. 346; Olmstead v. Bach, 78 Md. 132, 27 Atl. 501, 22 L. R. A. 74, 44 Am. St. Rep. 273, and other cases cited above. If, at the time an employe is discharged, his wages are fully [100] paid up to that time, he cannot treat the contract of employment as continuing, and bring separate actions for future installments of wages as they become due overing his readiness to perform, but only one action for breach of the contract of hiring; for one recovery, as before stated, is a bar to another action under the contract. James v. Allen Co., 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821; Parry v. American Opera Co., 19 Abb. N. C. (N. Y.) 269; Olmstead v. Bach, supra; Keedy v. Long, supra. Neither can the discharged employee treat the contract as continuing, and have a recovery for wages due, or as, in this case, only partly earned, to the time of the commencement of his action, without barring his right to a recovery for damages for breach of the contract. Richardson v. Eagle Machine Works, 78 Ind. 422, 41 Am. Rep. 584; Colburn v. Woodworth, 31 Barb. (N. Y.) 381; Parry v. American Opera Co., supra; Keedy v. Long, supra. So that it will be seen that the proper action for the plaintiff, m this case, upon his discharge before the expiration of his term of service, was for the recovery of damages, and not for wages for services, either actual or constructive. As to the doctrine of constructive service, it may only be said that it is not recognized in this state; but, following the overwhelming weight of authority, including the cases above cited, it is expressly disapproved. Ogden-Howard Co. v. Brand, supra. The plaintiff did not, at the time he brought his first action before the justice, after his discharge, have, as is contended, two distinct causes of action, one in debt for wages, and another in covenant for breach of the contract of hiring. For after he was discharged he was not entitled any longer to wages as such, although he had performed services as already stated, and for which he had not been paid, because the contract was at an end; and for the breach of the contract he could maintain but one action. Ogden-Howard Co. v. Brand, supra; Alie v. Nadeau, supra. If, after the dismissal of the plaintiff, he had a distinct and independent right of action to recover the wages earned, whether actually due, or not, before his discharge, then the effect would be [101] the splitting up a single cause of action, which the law does not sanction. Although the plaintiff could not recover in the former action on appeal the damages now claimed, the fact is, issue on the merits in that action was joined, and judgment was obtained, which was fully paid to and satisfied by the plaintiff. Notwithstanding the judgment was entered on confession, it is as conclusive as if there had been a trial, and it stands, not being reversed or set aside before payment, as a final adjudication of the issues joined. It was the plaintiff’s duty to include all his claim in the first suit in a form of action appropriate to his cause of action, so that one suit should settle his whole claim. Having recovered in his first action a sum equal to the amount of one week’s wages, partly earned and partly not earned, the recovery, regardless of the demand or form of action in that suit, must be regarded as a recovery for damages for breach of the contract; for the plaintiff could not have lawfully recovered upon any other theory, and the recovery is conclusive as to the amount of the plaintiff’s claim. Olmstead v. Bach, supra. Therefore the plaintiff, having prosecuted his first action to judgment, must be understood as having elected to pursue one of the remedies open to him for his discharge before the expiration of his term of hiring, and in consequence he is precluded or barred from resorting to any other. While not insensible to the fact that the conclusion reached may result in possible hardship to the plaintiff, it is the opinion of this court that the effect of his first action on appeal, in which he obtained judgment and was paid, is to estop him from maintaining his present action in covenant, and that the motion for a new trial should be denied. It is directed that this opinion be and it is hereby certified to the Superior Court for New Castle County. [Signed by the Judges.]