his election to sue for his wages as they became due from time to time or to bring an action for damages, but the point was not necessary to the decision; and Chief Justice Daly, in Moody v. Leverich, 4 Daly, 402, commenting on this case, said: "What Judge Ingraham said in respect of the right of a servant wrongfully dismissed to sue thereafter for his salary from time to time as it becomes due may be regarded as dictum, and as no authorities for the position are referred to by him, I infer that he stated the law as he supposed it to be upon the authority of Lord Ellenborough's decision in Gandell v. Pontigny, and that his attention was not called to the subsequent cases impeaching the soundness of that decision."

An action on the contract for the sum stipulated to be paid will not lie till after the expiration of the time, and if brought before it is premature: Bradshaw v. Branan, 5 Rich. (S. C.) 465; though an action lies for the breach of a contract of service even before the time for its fulfillment, the defendant having distinctly repudiated the contract: Hochster v. De La Tour, 2 El. & Bl. 678; and in Pagani v. Gandolfi, 2 Car. & P. 370, a plaintiff hired for four years at a yearly salary and dismissed was allowed to maintain an action, though at the time a year's salary was not due. An employee prevented from proceeding is not obliged to tender his services as a condition precedent to maintaining an action for their value: Pettit v. Turner, 2 Thomp. & C. 608; as it would be a useless act after the defendant had refused to perform his part of the agreement. A servant wrongfully discharged has his choice of these remedies, but he can not have more than one, and judgment for one bars any further action for the same cause. Thus in Clossman v. Lacoste, 28 Eng. L. and Eq. 149, it was held that a plaintiff might sue in any year for breaches of the contract in any former year, but if there was an entire dismissal from the service before the expiration of the agreed time the plaintiff ought to include his whole complaint in one action. On this principle an action for arrears of salary and damages for the breach of contract bars a second suit on the same contract, and this although the referee in the first action decided that the plaintiff could only recover one quarter's wages, and the court ordered judgment in accordance with such decision: Colburn v. Woodworth, 31 Barb. 381; for if a party submits his claim to be passed upon, the decision will operate as a bar to a subsequent suit even though the decision of the court thereon is erroneous; the error, if any, must be corrected in that action by review of the verdict or judgment, and not by a new action for the same cause. And if no claim was made for damages for the wrongful dismissal in an action for wages, work, and labor, etc., a subsequent action for such damages does not lie: Dunn v. Murray, 9 Barn. & Cress. 780; although if the claim was made and withdrawn at the time of the trial, and judgment taken only for services rendered prior to the discharge, a subsequent action for the discharge lies: Thompson v. Wood, 1 Hilt. 93; but the doctrine of this case was disapproved in Colburn v. Woodworth, supra; and in Booge v. Pacific R. R. Co., 33 Mo. 212, where a former judgment for the breach of the contract of service was pleaded in bar to the present action on the contract, the court, after enumerating the servant's remedies, said: “But he must make his election, and if he elects to sue for the breach before the termination of the period for which he was hired, and recovers, such recovery will be a bar to any subsequent action upon the same contract." And in Wiseman v. Panama R. R. Co., 1 Hilt. 300, it was said that one recovery in an action for the breach of contract, would be a bar to any further action.

RIGHT OF RECOVERY BY SERVANT WHEN DISCHARGED FOR JUSTIFIABLE CAUSE.-Contracts of hire for a definite period are generally regarded as en

tire contracts, and a full performance is necessary before a cause of action can be sustained for sum stipulated to be paid: Wood on Master and Servant, sec. 84. On this ground, in England, it is a well-established rule that if a servant is discharged for just cause during the term, he can recover nothing for the service he has performed: Lilley v. Elwin, 11 Q. B. 742; Ridgway v. Hungerford Market Co., 3 Ad. & El. 171; S. C., 4 Nev. & M. 797; Turner v. Robinson, 2 Id. 829; and this is so though the master has previously recovered damages from him for the same act of misconduct: Turner v. Robinson, supra. In the United States the cases conflict. A few states follow the English rule: New Jersey, Beach v. Mullin, 34 N. J. L. 343, and Pennsylvania, Libhart v. Wood, 1 Watts & S. 265, adopt this view and hold the servant is not entitled to any compensation for the service performed. But in the majority of the American states a different rule prevails; servants' contracts, though for a specified time, are regarded as apportionable, and a servant who has been discharged, though for a just cause, is still entitled to recover compensation for the work actually done. This prevails in Georgia, Newman v. Reagan, 63 Ga. 755; Illinois, Du Quoin Star Coal Mining Co. v. Thorwell, 3 Ill. App. 394; Kentucky, Foster v. Watson, 16 B. Mon. 377; Louisiana, Nolan v. Danks, 1 Rob. 332; Kessee v. Mayfield, 14 La. Ann. 90; Taylor v. Paterson, 9 Id. 251; Maine, Lawrence v. Gullifer, 38 Me. 532; Missouri, Sugg v. Blow, 17 Mo. 359; South Carolina, Byrd v. Boyd, 4 McCord, 246; Eaken v. Harrison, 4 Id. 249; McClure v. Pyatt, Id. 26; Tennessee, Jones v. Jones, 2 Swan, 605; Congregation v. Peres, 2 Coldw. 620; Massey v. Taylor, 5 Id. 447. In Byrd v. Boyd, supra, an action was brought by an overseer who had done his work well, but had been discharged for just cause, and the court allowed him the value of his services saying: "I can not reconcile it to my notions of natural justice, that the overseer should not recover a compensa tion for the services, so far as they were directed, and which have been ber eficial to the employer. And I am unable to discover any evil which is likely to result from submitting such a matter to the sound discretion of a jury of the country. And as a matter of expediency I should be disposed to establish it as a rule." But the damages which the employer has sustained by reason of the wrongful acts of the servant are to be deducted from his wages: Taylor v. Paterson, supra; Newman v. Reagan, supra. Although the servant is not liable for any damages the employer may suffer by employing another servant at higher wages: Lawrence v. Gullifer, supra. The servant does not recover the stipulated wages upon the express contract, but the reasonable value of the services on a quantum meruit.

If a party hired for a year is discharged with his consent, he can not recover salary for the remainder of the year: Southmayd v. Watertown Fire Ins. Co., 47 Wis. 517; and if the employment was to continue only during the pleasure of the employer, he may be discharged at any time without cause being assigned therefor, and an action for damages for such discharge can not be sustained: Spring v. Ansonia Clock Co., 24 Hun, 175. In Searle v. Ridley, 28 L. T. (N. S.) 411, the plaintiff was hired at a fixed yearly salary, payable monthly, and two months' notice was to be given by either party. Before the end of the first month the defendant complained of the plaintiff's incompetency, and gave the required notice; during the second month he obtained further evidence of the plaintiff's incompetency, and discharged him. The plaintiff sued in the county court and obtained one month's salary; he afterwards sued in the same court for the second month's salary; the judge found as a fact the plaintiff to be incompetent, and gave judgment for the defendant. It was held upon appeal, that under the circumstances the plaintiff was not entitled to more than one month's salary.

MEASURE OF DAMAGES WHEN SERVANT IS IMPROPERLY DISCHARGED BEFORE CONTRACT OF SERVICE EXPIRED.-The amount of damages a servant wrongfully discharged would be entitled to, depends upon the remedy which he chooses. If he sues upon the contract, then as a general rule the measure of damages is the whole amount agreed to be paid by the contract itself; the sum stipulated by the terms of the agreement is prima facie the amount he would be entitled to recover: Callo v. Brouncker, 4 Car. & P. 518; Fawcett v. Cash, 5 Barn. & Adol. 904; Batcheldor v. McGilvray, 9 Sess. Cas. 549 (1830); Finlayson v. McKenzie, 7 Id. 717 (1828–9); Gunn v. Ramsay, Hume's Dec. 384; Collins v. Price, 5 Bing. 132; Emerson v. Howland, 1 Mason, 45; Ansley v. Jordan, 61 Ga. 482; Webster v. Wade, 19 Cal. 291; Utter v. Chapman, 38 Id. 659; Gazette Printing Co. v. Morss, 60 Ind. 153; Jaffray v. King, 34 Md. 217; C. & P. R. R. Co. v. Slack, 45 Id. 161; Horn v. Western Land Association, 22 Minn. 233; Gillis v. Space, 63 Barb. 177; Decker v. Hassel, 26 How. Pr. 528; Huntington v. O. & L. C. R. R. Co., 33 How. Pr. 416; Heim v. Wolf, 1 E. D. Smith, 70; Costigan v. Mohawk and Hudson R. R. Co., 2 Denio, 609; Howard v. Daly, 61 N. Y. 362; Thompson v. Wood, 1 Hilt. 93; De Leon v. Esche verria, 45 N. Y. Sup. Ct. 610 (13 Jones & Spencer); Leatherberry v. Odell, 7 Fed. Rep. 641; Cox v. Adams, 1 Nott & M. 284; King v. Steiren, 44 Pa. St. 99; Jones v. Jones, 2 Swan, 605; Dunn v. Hereford, 1 Wyoming, 206; and in Gunn v. Ramsay, Hume's Dec. 384, plaintiff was allowed board wages in addition. Thus if a contract of service has continued many years (plaintiff serving defendant as a clerk), the wages having been paid quarterly at first and monthly towards the last, a yearly hiring will be implied, and defendant will be liable for the amount of the wages till the end of the year, having dismissed the plaintiff in the midst of a year: Beeston v. Collyer, 4 Bing. 309. An employee can not be compelled to perform services not included in the terms of the agreement. On this principle, one engaged as a seconde premiere danseuse can not be required to dance parlor dances with other figurantes; and being discharged on account of a refusal to do so, she was allowed the amount of her salary for the unexpired term: Baron v. Placide, 7 La. Ann. 229; although the agreement in that case contained a heavy penalty for its breach, and the action was for the penalty, which the judge modified to the above amount on account of part performance. If the plaintiff is prevented from completing the work, but is told by the defendant to hold himself in readiness to go on, he is entitled to recover the whole amount: Bromley v. School District, 47 Vt. 381. And if a seaman was compelled to leave on account of ill usage and cruel treatment, the court held this not to be a case of voluntary abandonment, but said it came within the principle of those cases where a seaman was unjustly discharged, and allowed the plaintiff wages for the whole time: Ward v. Ames, 9 Johns. 138.

This general rule for the measure of damages is not adopted in all cases. In Walworth v. Pool, 4 Eng. 394, Scott, J., discussing it, says there is no doubt as to the existence of the rule. "But this general rule," he continues, "has more especial reference to the sustaining of the action than to the ad. measurement of the damages to be thereby recovered; or, in other words, while it is universally applied to the one, and very frequently to the other, it is not in every case so applicable; or, to be still more explicit, although a tender and offer to perform, by the party not in fault, is equivalent to performance for the purpose of sustaining the action, the damages to be recovered are not universally and necessarily to be measured by the amount that was stipulated to be paid on actual performance, but for the most part, when these contracts concern personal property or services, the true rule of dam.

AM. DEC. VOL. XLIII-14

ages is the actual loss or injury sustained by the party ready and willing to perform." And Willoughby v. Thomas, 24 Gratt. 521, decided that it was error to hold that a party suing for a wrongful discharge was entitled to recover the whole hire if he was entitled to recover at all, because his right of recovery should be limited to the damages actually sustained. This rule of damages confining plaintiff's recovery to the actual loss has been recognized and followed in many cases: Hunt v. Colburn, Sprague, 215; Whitaker v. Sandifer, 1 Duvall, 261; Chamberlin v. McCallister, 6 Dana, 352; Miller v. Goddard, 34 Me. 102; Prichard v. Martin, 27 Miss. 305; Hunt v. Crane, 33 Id. 669; Stewart v. Walker, 14 Pa. St. 293; Meade v. Rutledge, 11 Tex. 44; Nations v. Cudd, 22 Id. 550; Hearne v. Garrett, 49 Id. 619. The employee was held to be entitled to a reasonable sum for the whole term if he could not obtain other employment, in McDaniel v. Parks, 19 Ark. 671; and to compensatory damages, in Williams v. Chicago Coal Co., 60 Ill. 149; and in Rick v. Yates, 5 Ind. 115, the rule was laid down that he could only recover the value of his services to the time of the dismissal and damages for the breach. Under this rule, the sum to be recovered would depend entirely upon the cir cumstances of the case; it might amount to the whole contract price if the employee was unable to obtain other work: Prichard v. Martin, 27 Miss. 305; Hearne v. Garrett, 49 Tex. 619, the court saying in this last case that the contract is taken as a means for ascertaining the loss sustained, rather than as a fixed measure of damages. But the damages are not to exceed the amount he would have been entitled to had the contract been fulfilled: Mead v. Rutledge, 11 Tex. 44; although in Hunt v. Colburn, Sprague, 215, where a seaman was wrongfully left by a master in a foreign port, the measure of damages was said to be indemnity for all he had lost or suffered, whether more or less than the wages up to the time of his own or the ship's return to the home port, and the plaintiff, in that case, was allowed his wages during the time he was necessarily absent, his expenses in obtaining passage home, and the value of his clothes.

If the employee's recompense is not a fixed sum, but depends partly or entirely upon the results or proceeds of the work, the measure of damages is the amount he would have received had the contract been regularly fulfilled. As where an overseer was employed to manage a crop and was to have one fourth of the proceeds, he is entitled to that portion of the crop to be estimated not as it stood when he was dismissed, but when it was fully made: Clancey v. Robertson, 2 Mill (S. C.), 404; so a master of a ship who is to have a certain lay on the proceeds, and also an additional recompense dependent upon the amount of the cargo, may recover his share of the earnings both before and after his removal: Dennis v. Maxfield, 10 Allen, 138; and where the plaintiff was engaged as superintendent of the defendant's works, with a power to appoint agents, and was to receive a fixed salary and a certain commission "on the gross amount of all the sales made for" the defendant, and was improperly discharged before the end of his term, the commissions on all the sales made during the year may be considered by the jury in estimating the damages, though the action was brought before the expiration of the year: Blair v. Laflin, 127 Mass. 518. If such a contract contained a stipulation that the contract was terminable by notice, and the defendant discharged plaintiff, the latter is entitled to compensation in proportion to the amount he was to have received for the whole year, both his contingent compensation for the commissions and his salary: Jenkins v. Long, 8 Md. 132. So a ser vant entitled to a fixed salary and certain prerequisites was allowed both, in Armstrong, Pursuer, 9 Sess. Cas. 1198, 1846. Where an overseer who was to have a fifth of the crop brought his action before the expiration of the term

for his unlawful discharge, he can recover the value of the services actually performed and the damages sustained by reason of the defendant's breach of contract: Hassell v. Nutt, 14 Tex. 260.

A contract of service sometimes contains a stipulation that either party may terminate the contract by notice. In Hartley v. Harman, 11 Ad. & El. 799, the contract contained such an agreement, and it was held to mean either warning or wages for that period, and defendant not having given the notice, was compelled to pay the wages; and in Hartley v. Harman, 3 Perry & D. 567, the damages for such a dismissal was said to be a month's wages, the contract requiring a month's notice. And an employee entitled to three months' warning or three months' wages, can set off his claim for three months' salary, in an action by his employer for money had and received: East Anglian R. R. Co. v. Lythgoe, 2 L. M. & P. 221; S. C., 10 C. B. 726. In French v. Brookes, 6 Bing. 354; S. C., 4 Moo. & P. 11, the plaintiff was engaged for three years as superintendent of mines in South America; if he remained there that long, a sum was to be allowed for the expense of the return of his family; the contract contained a provision that he should not be dismissed without twelve months' notice or twelve months' salary and the reasonable expense of his return; he was dismissed without notice or salary. The jury gave a verdict for a year's salary, with leave to the plaintiff to move to increase the salary by the amount of the expense of his family's return and his salary till the end of the third year, but the court held he was not entitled to increase the damages by these sums. If there is a usage of trade requiring notice before the defendant takes away work from the plaintiff, he must give it, or he will be liable to the plaintiff for amount of the work: Cunningham v. Fonblanque, 6 Car. & P. 44. In that case, a newspaper proprietor took away work from a printer without giving the four weeks' notice required by the usage of trade. And a domestic servant, entitled by usage to a month's notice, can recover wages for a month, if dismissed without it: Robinson v. Hindman, 3 Esp. 235; if such servant should sue to recover damages for discharge without a month's wages or a month's warning, she is entitled to the wages accruing up to the time of her discharge and to a calendar month's wages in addition, but not to board and wages: Gordon v. Potter, 1 Fost. & F. 644.

It is the duty, in all cases, of a party discharged before the termination of his term to use diligence to obtain other employment: Goodman v. Pocock, 15 Q. B. 574; Beckham v. Drake, 2 H. L. 606; Emmens v. Elderton, 13 C. B. 508; Utter v. Chapman, 38 Cal. 659; Williams v. Chicago Coal Co., 60 Ill. 149; Stone v. Vimont, 7 Mo. App. 277; Chamberlin v. Morgan, 68 Pa. St. 168; Gillis v. Space, 63 Barb. 177. The servant, in such a case, should protect himself as far as possible from loss. "It is incumbent, in every case, upon an injured party to do whatever he can to lessen the injury:" Chamberlin v. Morgan, 68 Pa. St. 168. "Idleness is in itself a breach of moral obligation. But if he [the employee] continue idle, for the purpose of charging another, he superadds a fraud, which the law had rather punish than countenance:" Per Cowen, J., in Shannon v. Comstock, 21 Wend. 457. "The law will not permit him [the employee] to so conduct himself as to aggravate the damages. He must not lie idle when it is practicable to get work of the same general character:" Per McAllister, J., in Williams v. Chicago Coal Co., 60 Ill. 149. "If a party entitled to the benefit of a contract can protect himself from a loss arising from a breach, at a trifling expense, or with reasonable exertions, he fails in a social duty if he omits to do so, regardless of the increased amount of damages, for which he may intend to hold the other contracting party liable. The law will not permit him to throw a loss, resulting from ■ damage to himself, upon another, arising from causes for which the latter