In Thorne v. True-Hixon Lbr. Co., 167 Miss. 266, 148 So. 388, this court held, in a second suit on this same contract, that several suits might be maintained for accrued wages payable in installments, especially where the termination of employment by the contract depends on contingencies rendering a definite determination thereof impossible, and that the contract in this case was not invalid, and that case was remanded for trial, and there was no res adjudicata in favor of the lumber company.Summary of this case from True-Hixon Lbr. Co. v. Thorne
May 29, 1933. Suggestion of Error Overruled September 25, 1933.
Alleged verdict, differing from that appearing on face of judgment pleaded as res judicata, was properly excluded from record offered in support of plea.
2. APPEAL AND ERROR.
Alleged verdict, excluded by court as differing from that appearing on face of judgment pleaded as res judicata, cannot be considered on appeal from judgment dismissing second suit.
Generally, contract is single, and breach thereof affords but one cause of action.
Several suits may be maintained for accrued wages, payable in installments, especially where termination of employment contract depends on contingency rendering definite determination thereof impossible.
5. MASTER AND SERVANT.
Employment contract to continue so long as employer's business was operated in same place was not so indefinite as to be invalid, where it provided method for determining length of engagement.
Judgment for month's wages due under contract to pay stated sum per day in weekly installments held not res judicata in subsequent action for wages accruing after filing of first suit.
APPEAL from the Circuit Court of Lafayette County.
J.W.T. Falkner and Jas. Stone Sons, all of Oxford, for appellant.
In the present case the lower court correctly held that the verdict of the jury was not a part of the judgment and was inadmissible. This ruling is obviously correct.
15 R.C.L. 570, sec. 3; Gibson v. Robinson (1893), 90 Ga. 756, 16 S.E. 969, 35 A.S.R. 250; G. Amsinck Company, Inc., v. Springfield Grocer Co., 7 F.2d 855.
In the case of Williams v. Luckett (1899), 77 Miss. 394, 26 So. 967, it was held that a recovery of one month's wages on a contract for services is, in a subsequent suit for another month's wages on a contract for services is, in a subsequent suit for another month's installment, res adjudicata as to the propositions that the previously disputed term of employment was by the year, and that the wages were payable monthly.
Before a plea of res adjudicata can prevail, four things must be shown: First, identity in the thing sued for; second, identity in the cause of action; third, identity of persons and parties to the action; and, fourth, identity of the quality in the person for or against whom the claim is made.
In the case of Adams v. Y. M.V. Railroad Company (1898), 77 Miss. 194, 24 So. 200, it was held that a judgment as to the taxes of one year, is not res adjudicata as to liability for taxes for a later year although the same contention of law was involved in both suits.
Y. M.V.R.R. Company v. Adams (1902), 81 Miss. 90, 32 So. 937.
In the case of Armfield v. Nash (1856), 31 Miss. 361, it was held that a suit on, and recovery for, the first installment of a contract is no bar to a suit on a second installment not due when the first suit was commenced.
Davis v. Davis (1888), 65 Miss. 498, 4 So. 554; Williams v. Luckett (1889), 77 Miss. 394, 26 So. 967.
L.C. Andrews, of Oxford, for appellant.
"When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive in the latter not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings or as incident to or essentially connected with the subject-matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties."
15 R.C.L., p. 963.
"A contract of employment for a particular period is entire and indivisible, but if it is agreed in the contract that the employee shall be paid in installments at stated intervals, performance of that part of the contract by the employer is divisible and the employee may maintain an action for wages for services performed on each failure of the employer to pay as agreed."
1 R.C.L., pp. 353, 354.
The judgment in the first case, which is pleaded as a bar to the prosecution of the second suit, receives its force from the verdict of the jury, and the jury by its verdict said that "we do not consider that a contract existed between True-Hixon Lumber Company and H.W. Thorn but think there is a strong probability that H.W. Thorn did not have sufficient notice."
Lamar v. Williams, 39 Miss. 342.
There was one contract, and one alleged breach of that contract. For that one breach of the contract, plaintiff, appellant here, measured his damages in the first suit at one thousand three hundred seventy-seven dollars, and in the second suit for the same breach of the contract claimed damages in the sum of eight hundred twenty-two dollars.
Ogden-Howard Company v. John H. Brank, 8 A.L.R. 334; Doherty v. Schipper and Block, 95 N.E. 75.
If it is permissible to construe the judgment in the former suit in the light of the verdict rendered therein, then it appears that there was a finding to the effect that there was no contract existing between appellant and appellee.
Lester G. Fant, Sr. Jr., of Holly Springs, for appellee.
The contract was not divisible. It was a contract for employment for services for one continuous period of time, the services to be continuously rendered; and it is settled in Mississippi that such contracts, even though the payment is to be in monthly installments, are not divisible.
Fidelity Guaranty Co. v. Tate Co. (1917), 114 Miss. 1, 74 So. 769.
In the original suit No. 5981 the appellant was not suing for installments or divisible contract, but for one entire breach of one contract. In his first action, No. 5981, he recovered damages for breach of the contract. He was bound to include all possible elements of damage in that action. As said by this court "He must also in one suit claim all the damages he has sustained, because for one cause of action but one suit is given the plaintiff to be tried upon its merits."
Insurance Co. v. Mercantile Co. (1917), 117 Miss. 760, 78 So. 709.
"A servant or agent wrongfully dismissed from his employment has his election to treat the contract as rescinded and recover on a quantum meruit the value of his services rendered, or to sue for breach of the contract; but having chosen one form of remedy he is bound by his election, that is to say, a judgment in an action on quantum meruit will bar a subsequent action for breach of contract, and vice versa, and a recovery for breach of contract will preclude any further recovery for such breach."
34 C.J. 831, par. 1241 (3).
The appellant, H.W. Thorne, sued the appellee, True-Hixon Lumber Company, in the circuit court of Lafayette county, alleging in his declaration that on May 4, 1929, appellee entered into a contract of employment with him to operate its planing mill at College Hill Switch, in Lafayette county, and agreed to pay him the sum of four dollars and fifty cents per day, straight time, for every day except Sunday, payable weekly, and to furnish a residence for himself and family of the rental value of twenty dollars per month, such employment to continue during the period of operation of said planing mill by the appellee at the said location, and that the said period of operation was dependent upon the happening of several contingencies and was, therefore, then unknown and impossible of definite determination by the parties to the said agreement.
It was further alleged that after the consummation of said agreement, which was accepted and thoroughly understood by both the appellant and appellee, the appellant entered upon the discharge of his duties under the terms of the contract and continued in the service until January 15, 1931, at which time appellee, without any cause or reason whatsoever, discharged him and refused thereafter to permit him to perform the work and labor contracted for or to carry out his part of the contract, and required him to vacate the residence theretofore occupied by him under the terms of the contract. The declaration further alleged that the appellant had, at all times, been ready, willing, and able to carry out the contract, and asked for a judgment for all wages then past due, and also the rental value of the residence from the time he was required to vacate it.
On the hearing of the merits of the cause, a verdict was returned in favor of the appellant for one hundred seventeen dollars, being one month's salary or wages, which verdict contained other matter and conditional findings; and thereupon appellee moved for a judgment non obstante veredicto. This motion was overruled, and the following judgment was entered on the verdict:
"This cause is this day heard by the court and the jury of the regular panel, all parties being in court and represented by counsel and after hearing the evidence and receiving the instructions of the court and hearing the arguments of counsel, the jurors retired and returned into court this verdict, `We the jurors find for the plaintiff and fix the amount at one hundred seventeen dollars. It is therefore the judgment of the court that the plaintiff, H.W. Thorne do have and recover of the defendant, the True-Hixon Lumber Company, a corporation, the sum of one hundred seventeen dollars and all cost in this behalf expended for which let execution issue.'"
The above-mentioned judgment was fully paid and satisfied, and, thereafter, on February 13, 1932, the appellant filed a declaration against the appellee, the averments of which were in all respects the same as in that outlined above, except it was sought thereby to recover wages and the rental value of the residence for the period intervening between the filing of the first suit and the filing of the second. To this declaration the appellee pleaded the judgment in the first suit as being res adjudicata of all issues involved in the second, and in support of this plea offered the entire record of the first suit, including a verdict alleged to have been rendered therein which differed from the verdict recited on the face of the judgment of the court. The court excluded this alleged verdict but sustained the plea of res adjudicata and dismissed the suit, and from the judgment entered, this appeal was prosecuted.
The alleged verdict of the jury in the first cause which, in some respects differs from the verdict which appears on the face, of, and was made the basis of, the judgment of the court in that cause was properly excluded. Furthermore there was no appeal from the action of the court in excluding it, and consequently it could not be considered here as having any bearing upon the determination of the questions involved.
A contract is generally single, and a breach of it affords but one cause of action, but this court is aligned with those jurisdictions which hold that where wages are to be paid in installments during the execution of the contract, several suits may be maintained for accrued wages. Armfield v. Nash, 31 Miss. 361; Williams v. Luckett, 77 Miss. 394, 26 So. 967, 968. In the latter case, Williams had discharged Luckett, allegedly without cause, and Luckett sued for and recovered the wages for January, 1899. Thereafter he sued for wages accruing from February 1 to August 1, 1899, and in passing upon his right to recover in the second suit, the court said: "If Williams had not discharged Luckett, but had failed to pay him as the monthly wages became due, it is clear that Luckett would have had a right of action accruing to him at the expiration of each month of service, and might have sustained as many suits as there were defaults of payment. The bringing of the first suit for the January wages did not end the contract, nor amount to a rescission of it on the part of Luckett. The contract, notwithstanding the suit for damages for the nonpayment for the monthly sum of wages, remained in full force; and Williams might thereafter have received him back into his employ, or continued to subject himself to other suits for the continued breach of it. The contract, by its terms, is equivalent to the making of as many contracts as there are periods of payment, or at least the sums to be paid are divisible by its express terms; and the terms of the contract are the law of the contract."
This doctrine is applicable with particular force where, as here, the contract is not for a definite or fixed term, but the termination thereof is dependent upon contingencies which render it impossible to, at the time, definitely determine when it will expire. The fact, however, that the contract, as set forth in the declaration, was to continue so long as the business was operated at the named place does not make it so indefinite in its terms as to render it invalid, as a method is provided therein for determining the length of the engagement. American Law Institute Restatement, Contracts, section 32, Illustration No. 3. The judgment of the court below sustaining the plea of res adjudicata and dismissing the suit will, therefore, be reversed and the cause remanded.
Reversed and remanded.