93 Me. 282 | Me. | 1899
The plaintiff brings this action to recover damages for the breach of a contract of service, whereby the plaintiff alleges that he agreed to enter and remain in the employment of the defendant for the period of six months from the ninth day of November, .1897, and that the defendant agreed to hire the plaintiff for the samé period and to pay him for his labor the sum of ten dollars per week. The plaintiff further alleges that he entered upon the performance of the contract upon his part, and continued to work until January 15,1898, upon which day he was discharged by the defendant, without lawful cause.
The case shows that the plaintiff was paid all wages due him up to the time of his discharge. On March 12, 1898, the plaintiff
This action was commenced November 28, 1898, and the plaintiff now claims to recover damages from March 12, 1898, to May 9, 1898, the remainder of the period covered by the contract. At the close of the testimony, the defendant’s counsel requested the presiding justice to instruct the jury that the judgment in the former action was a bar to recovery in this suit. To a refusal to give this instruction the defendant excepted.
We think the requested instruction should have been given. Here is a single and indivisible contract, a hiring for the period of six months. When the defendant discharged the plaintiff he broke the contract. He broke it altogether. But there was only one breach. The plaintiff urges that while the contract was entire, the performance was divisible, that each week’s work constituted a performance so far, and that the defendant was in default each week he failed to continue plaintiff in his employment. Hence the plaintiff claims that an action will lie for each default. A little examination will show that this position cannot be sustained.
The contract of the defendant may be viewed in a two-fold aspect. In the first place, he agreed to continue the plaintiff in his employment for a period of six months. That contract was entire and indivisible. There was a single breach of that part of the contract. He also agreed, we will assume, to pay the plaintiff weekly. Performance of that part of the contract by the defendant was divisible, and the plaintiff might have maintained an action for wages for services performed on each failure of the defendant to pay as he agreed. To this effect are most of the cases cited by the plaintiff from our own decisions. But such is not this case. After the plaintiff was discharged, he performed no more service, and was entitled no longer to wages as such, for the contract was at an end. The damage was the loss of his contract right to earn wages. He was entitled to recover all the damages he sustained
But the plaintiff contends that the rule should not apply here, because in his first writ he claimed damages only to May 12,1898. If this contention is sound, it follows that any litigant may sever an indivisible contract, and become entitled to maintain several actions as for several breaches of it, simply by limiting his claim for damages in his earlier actions, to less than full damages. We think this cannot be done. As we have already suggested, the law presumes that the plaintiff alleged and recovered in his first action all the damages that he sustained.
Exceptions sustained.
