United States Fidelity & Guaranty Co. v. Tate County

Smith, C. J., delivered the opinion of the court. The rule announced in Armfield v. Nash, 31 Miss. 361, followed in Williams v. Luckett, 77 Miss. 394, 26 So. 967, and relied upon by counsel for appellee, has no application here; for, while Clarke’s compensation for working the roads was to be paid him in installments, his work upon the roads was not to be performed by installments, but was to be continuous, so that his obligation under the contract was not divisible, but was entire. When he unqualifiedly refused to continue to work the roads, and appellee, as it ha'd the right to do, treated his refusal as a total breach of the contract, and made other arrangements for the working of its roads, his contract with appellee was thereby terminated, and appellee had thereafter only a cause of action against him for the damages sustained by it because of the breach by him of the contract. It had the right to sue upon this cause of action at once, or at any time thereafter, within the limits of the statute of limitations, and recover all damages then or thereafter to be sustained, but had not the right to institute separate suits for each new item of damage resulting from its original cause of action; for “it is a rule of law that a man shall not be twice vexed for one and the same cause.” “The true criterion whether damages can be recovered for nonperformance of a whole contract, including damages not sustained when the action is brought and -the suit is tried, is whether there has been such a breach as authorizes the plaintiff to treat it as entirely putting an end to the contract. If the breach is entire and total, the plaintiff may recover damages for an entire nonfulfillment; but if it is only partial and temporary, he can recover only such damages as he has already sustained, and must still accept performance of the re [4] sidue of the contract if the other party will fulfill it. The question depends upon whether the damages are a new cause of action, or are only new damages resulting from the original cause of action.. In the former case a new action may and must be brought, while in the latter all the damages may and must be recovered in a single action.” 8 R. C. L. 550. See, also, 3 Elliott on Contracts, section 2141; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953. It follows, from the foregoing views, that appellant’s plea of res adjudicata was good; and, since the matters alleged therein appear from the record and are admitted by counsel for appellee to be true, the judgment of the court below will be reversed, and the cause dismissed. Reversed and dismissed.