passenger at the depot, without any control from the agents of the company.

It has been contended that the responsibility of the defend ants does not begin until the car arrives at the ticket office, near the hotel; but we are of opinion that it attaches as soon as baggage is received to be transported on any part of the road; and it is shown that the road extends out to the end of the pier, where the baggage is always received from passengers arriving by steamers. The appellee complains that the court cut down his demand nearly one half, and he prays for judgment for the full amount claimed. It is manifestly impossible to prove with any precision the value of every article of old clothes, especially of a theatrical wardrobe, or even how many were in fact lost. The evidence does not enable us to say that the court below was so clearly in error as to the value of the lost baggage, as to justify our interference in that respect.

Judgment affirmed.

COMMON CARRIER'S LIABILITY FOR BAGGAGE: See Hollister v. Nowlen, 32 Am. Dec. 455.

POWER OF CARRIER TO LIMIT LIABILITY BY NOTICE: See note to Cole v. Goodwin, 32 Am. Dec. 470, discussing this question at length; Atwood v. Reliance Trans. Co., 34 Id. 503; Cole v. N. J. S. N. Co., 39 Id. 398; Bingham v. Rogers, 40 Id. 581.

HULLIN v. SECOND MUNICIPALITY OF NEW ORLEANS.

[11 ROBINSON, 97.]

MUNICIPALITY MAY ABANDON PROCEEDINGS BEGUN BY IT TO ACQUIRE PROPERTY for the purpose of widening a street, where the proceedings have never been perfected; and no implied contract of sale or claim for the price of the land arises, although the municipality has taken possession of the land. In such case the plaintiff may demand the premises or damages for the injury resulting from having been deprived of them. APPEAL from the district court of the first district. The opinion states the case.

L. Janin and Benjamin, for the appellants.

Micou and Rawle, for the defendants.

By Court, MARTIN, J. The plaintiffs claim the price of a lot of ground, the joint property of their insolvents, taken possession of by the defendants for the purpose of widening Roffignac street. The proceedings begun by the municipality in order to acquire the property of the said lot, having been discontinued,

notwithstanding the strenuous and successful opposition of the present plaintiffs in the district court, whose judgment was reversed, Mayor of New Orleans, Application of, for widening street, 4 Rob. (La.) 357, we then expressed our opinion, that it could not be pretended that the title to the lot was vested in the municipality, by virtue of those proceedings; but we added, that, whether the act of taking possession under the circumstances then shown, amounted to a consent on the part of the municipality to pay for the lots, according to either of the appraisements made during the course of said proceedings, was a question foreign to the one we were then considering, to wit, whether the municipality had a right to discontinue.

The present suit has for its object to obtain a judicial opinion on the question which we declared to be foreign to that which was decided by us. The petition urges the existence of an implied contract to pay the value of the premises, under which the transfer of said property to the municipality became complete, as well as the right of plaintiffs to the price. The district court dismissed the petition, being of opinion that the pretensions of the plaintiffs were in direct opposition to the decision of this court in the case cited, and the plaintiffs appealed. Their counsel has not enabled us to discover that we may now express any opinion different from that on which the district court has relied. The inchoate proceedings in said court never having been perfected, none of the parties thereto can claim any rights under them. Their respective rights are as yet such as they existed on the inception of those proceedings, unless damages may be claimed on grounds posterior to them. The plaintiff may, therefore, demand the premises, or damages for the injury resulting from their having been deprived of them. But there being no express or implied contract of sale, there can not be a claim for a price.

Judgment affirmed.

DISCONTINUANCE OF HIGHWAY DOES NOT DIVEST RIGHT TO DAMAGES of one over whose land such highway is laid out, where the discontinuance occurs after the highway has been completely established and the damages assessed and certified in the mode required by law, but before anything has been done towards opening the highway or disturbing the possession of the owner of the land: Harrington v. County Commissioners of Berkshire, 33 Am. Dec. 741, and note referring to previous cases in this series. See, also, Anthony Street, Matter of, 32 Id. 608.

DECAMP V. HEWITT.

[11 ROBINSON, 290.]

EMPLOYEE DISCHARGED BEFORE EXPIRATION OF TERM for which he has been hired, without good cause, is entitled to his salary for the whole term. APPEAL from the commercial court of New Orleans. The opinion states the case.

C. M. Randall, for the plaintiff.

C. M. Jones, for the appellants.

By Court, MORPHY, J. The defendants have appealed from a judgment which condemns them to pay to the plaintiff one thousand and fifty-seven dollars and eighty-five cents. This sum is claimed on the allegation that, on or about the eighth of January, 1844, the defendants engaged the services of the plaintiff as a salesman in their commercial house, for the term of one year from that time, at a salary of one thousand two hundred dollars a year; that on or about the twelfth of March following, the defendants discharged him from their employment without any just cause, and refused to pay him the aforesaid salary for one year, in violation of their contract, although the petitioner tendered to them his services for the balance of the year for which he had been engaged, and that they paid to him only the sum of one hundred and forty-two dollars and fifteen cents, leaving yet due the balance now claimed. The defense set up is, that the defendants had a right to turn off the plaintiff as they did, because he was utterly useless to them as a salesman, being incompetent to discharge his duties as such, and not possessing the necessary skill, attention, and industry.

This case presents only a question of fact, to wit, whether the plaintiff was competent to discharge the duties he undertook to perform for the defendants? A number of merchants of high standing, all well acquainted with the plaintiff for a long time, and some of whom had had him in their employ, testified to his uncommon industry, activity, and general knowledge and experience as a salesman of western produce; and it appears that the defendants themselves were well aware of his merits as a salesman, for, more than a year before they actually employed him, they expressed the desire of having his services, saying that he was just such a person as they wanted. It does not appear that at the time of discharging plaintiff, or previously, they intimated to him, or expressed to others, any dissatisfaction with him; and when they made out their account with

him, they allowed him a month's salary beyond the time they intended to keep and did keep him. On the trial, the defendants attempted to show the incompetency of the plaintiff, by proving that he committed various errors in making entries of his sales in the blotter, from which the bookkeeper carries the accounts into the regular books. The errors complained of are represented by the witnesses as unimportant, and such as commonly occur, and can not be prevented in that kind of business, which is generally done in a hurry. They say that these errors, which sometimes occur in every house doing such an extensive business as that of the defendants, are generally rectified by the principal, or the clerk who makes out the bills. The defendants also complain that the plaintiff refused to carry out the particulars of the sales made by him from the blotter into the sales book; but the plaintiff has proved by several witnesses that it was no part of his duty, as a salesman, to do so. On an attentive examination of the whole evidence, we see no reason to differ from the judge below in the conclusion to which he

came.

Judgment affirmed.

REMEDY OF SERVANT WRONGFULLY DISCHARGED BEFORE EXPIRATION OF CONTRACT OF SERVICE.-A servant who has been wrongfully discharged from service before the expiration of the term for which he was hired, has an election of remedies. He may: 1. Regard the contract as broken by the conduct of the employer, and sue immediately for damages for its breach: Fowler v. Prout, 24 Ala. 194; Strauss v. Meertief, 64 Id. 299; S. C., 38 Am. Rep. 8; Rogers v. Parham, 8 Ga. 190; Britt v. Hays, 21 Id. 157; Colburn v. Woodworth, 31 Barb. 381; Wiseman v. Panama R. R. Co., 1 Hilt. 300; Hearne v. Garrett, 49 Tex. 619; Howard v. Daly, 61 N. Y. 362; or, 2. He may treat the contract as rescinded, and sue on a quantum meruit for the services he has performed under it; Rogers v. Parham, 8 Ga. 190; Britt v. Hays, 21 Id. 157; Colburn v. Woodworth, 31 Barb. 381; Rye v. Stubbs, 1 Hill (S. C.), 384; Bradshaw v. Branan, 5 Rich. (S. C.) 465; Hearne v. Garrett, 49 Tex. 619; Ryan v. Dayton, 25 Conn. 188; Clark v. Manchester, 51 N. H. 564; Planche v. Colburn, 5 Car. & P. 58; Howard v. Daly, 61 N. Y. 362; or, 3. He may treat the contract as still subsisting, and sue at the expiration of the term for the sum agreed to be paid for the whole term: Fowler v. Prout, 24 Ala. 194; Strauss v. Meertief, 64 Id. 299; S. C., 38 Am. Rep. 8; Rogers v. Parham, 8 Ga. 190; Colburn v. Woodworth, 31 Barb. 381; Heim v. Wolf, 1 E. D. Smith, 70; Bradshaw v. Branan, 5 Rich. (S. C.) 465; Rye v. Stubbs, 1 Hill (S. C.), 384. "Should he choose this last remedy, he recovers not for services rendered, but damages for breaking the contract by discharging him before the termination of his agreement; that is, for refusing to employ and pay him according to the contract:" Per Ingraham, J., in Heim v. Wolf, supra. Smith says also, that "he may wait till the termination of the period for which he was hired, and may then perhaps sue for his whole wages, in indebitatus assumpsit, relying on the doctrine of constructive service:" Smith's Lead. Cas., 7th Am. ed., 46. In support of this position, Gandell v. Pontigny, 4 Camp. 375, is

cited, where it was decided, that a servant, hired by the quarter and discharged without cause in the middle of a quarter, could recover his salary for the whole term in indebitatus assumpsit. The doctrine of constructive service did prevail in England for some time after this decision by Lord Ellenborough; and if a party was prevented by a wrongful discharge from actually fulfilling his contract of service, still, by holding himself in readiness to perform it, he became entitled to the wages stipulated to be paid. Later English cases repudiate this doctrine, and hold that an indebitatus assumpsit will not lie for wages for the whole term, where the servant has been dismissed before its expiration: Archard v. Hornor, 3 Car. & P. 349; Goodman v. Pocock, 15 Q. B. 574; Smith v. Hayward, 7 Ad. & El. 544; S. C., 2 Nev. & P. 432; Fewings v. Tisdal, 1 Exch. 295; Emmens v. Elderton, 13 C. B. 509. And in the United States the later English rule has generally been followed: Jones v. Dunton, 7 Ill. App. 580; Trustees v. Shaffer, 63 Ill. 243; Stone v. Vimont, 7 Mo. App. 277; Moody v. Leverich, 4 Daly, 401; Weed v. Burt, 7 Id. 267; S. C., 78 N. Y. 191; Howard v. Daly, 61 Id. 362; Madden v. Porterfield, 8 Jones, 166; Donaldson v. Fuller, 3 Serg. & R. 505; Algeo v. Algeo, 10 Id. 235; although some follow the earlier English rule: Vide cases cited in Howard v. Daly, 61 N. Y. 362; Rye v. Stubbs, 1 Hill (S. C.), 384; Strauss v. Meer tief, 64 Ala. 299; S. C., 38 Am. Rep. 8.

The doctrine of constructive service can not be maintained, for the simple reason that the allegation of defendants being indebted for work and labor is untrue: Emmens v. Elderton, 13 C. B. 509. An action for wages could not properly be brought if no services had been performed. Additional reasons against the soundness of the doctrine are stated in the leading case of Howard v. Daly, 61 N. Y. 362. In that case, Dwight, C., after discussing the doctrine and reviewing the decisions which support it, said: "This doctrine is, however, so opposed to principle, so clearly hostile to the great mass of the authorities, and so wholly irreconcilable to that great and beneficent rule of law, that a person discharged from service must not remain idle, but must accept employment elsewhere if offered, that we can not accept it. If a person discharged from service may recover wages, or treat the contract as still subsisting, then he must remain idle in order to be always ready to perform the service. How absurd it would be that one rule of law should call upon him to accept other employment, while another rule required him to remain idle in order that he may recover full wages. The doctrine of 'constructive service' is not only at war with principle, but with the rules of political economy, as it encourages idleness and gives compensation to men who fold their arms and decline service, equal to those who perform with willing hands their stipulated amount of labor. Though the master has committed a wrong, the servant is not for one moment released from the rule that he should labor; and no rule can be sound which gives him full wages while living in voluntary idleness." And in an article on this subject in the Southern Law Review for January, 1883, the same conclusion is arrived at. If a party's wages are pay. able in installments, he can not recover for the several installments as they fall due, averring a readiness to perform: Moody v. Leverich, 4 Daly, 401; Jones v. Dunton, 7 Ill. App. 580, and the court, after an exhaustive review of the cases, repudiated the doctrine of constructive service. The contrary was held in Strauss v. Meertief, 64 Ala. 299; S. C., 38 Am. Rep. 8, where it was decided that the installments of wages might be recovered as they fell due, but in that case the court favored the doctrine of constructive service. Booge v. Pacific R. R. Co., 33 Mo. 212, a similar opinion was expressed, but merely by way of dictum. Mr. Justice Ingraham, in a New York case, Thompson v. Wood, 1 Hilt. 93, said that a servant wrongfully discharged had

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