Armfield v. Nash, 31 Miss. 361

Armfield v. Nash

31 Miss. 361 | Miss. | 1856

Fisher, J.,

delivered the opinion of the court.

The plaintiff in error was employed by the defendants to teach a school at a certain academy for one scholastic year, which is averred to be ten months, at the sum of twelve hundred dollar's— one half payable at the end of five months, and the other half payable at the end of ten months. At the end of three months, he avers that he was dismissed by the defendants, who refused to permit him to proceed further in the performance of his contract. It *365appears from the pleadings of both parties, that the plaintiff brought his suit for the first instalment, and recovered a judgment for the same, which has been paid.

The question presented relates to the second instalment — the plaintiff averring that he was at all times ready and willing to perform his part of the contract. The first and second answers of the defendants to the complaint, aver that the plaintiff brought the suit above named, and recovered a certain sum, which has been paid in full satisfaction for the alleged breach of said contract. The plaintiff demurred to these answers, as well as to the others, and the court overruled the demurrer; whereupon the plaintiff filed his replications to the several answers, and the defendants demurred to the replications to the first and second answers, and joined issue upon the others. The court sustained the demurrer, and the plaintiff failing further to reply, the court, instead of rendering a final judgment upon the demurrer, proceeded to the trial of the issues joined upon the other replications.

When the court sustained the demurrer to the replications to the first and second answers, it was tantamount to saying, that these answers constituted a good bar to the plaintiff’s action; and he declining further to reply, the court should have pronounced a final judgment upon the demurrer — as one good answer was as effectual to defeat a recovery by the plaintiff, as a hundred or a thousand could have been, supposing them all to be true. The demurrer admitted the truth of the facts averred, and the facts being true, is there a subsisting cause of action ? If the admitted facts showed no cause of action at the commencement of the suit, then the court should have so declared the law, as applicable to the facts, and have rendered the proper judgment. There could, under this state of the case, be no issue for the jury to try, for the obvious reason, that the issue of law presented by the demurrer, first called for the decision of the court; and the facts being true, and legally sufficient to defeat a recovery, such should have been the judgment of the court.

But we will proceed to consider the merits of the replications. The answer, in substance, avers that the sum recovered was recovered and received in full satisfaction of the breach of the *366entire contract. The replications, on the contrary, aver that the action was brought to recover only the first instalment — the second not then being due; and that the present action is brought to recover damages on account of the breach of the contract relating to said second instalment, averring also his readiness to perform his part of the contract. In our opinion, the court erred in sustaining the demurrer. The answers admitted both the contract and the breach, and undertook to set up as a defence, that the plaintiff had been fully satisfied as to the damages resulting from the breach. The replication shows, what the complaint does, that the contract.was divisible, and that when the first breach occurred, plaintiff brought his action, and recovered only what could have been recovered in that action, to wit, the first instalment. How, then, does the case stand upon the pleadings ? The defendants admit both the existence and breach of the contract, but insist that they fully paid all damages resulting from such breach. The plaintiff, on the contrary, presents an issue on this latter point of the answers, and denies both a recovery on account of the breach relating to the last instalment, or compensation for the same. The demurrer then admits — what? Certainly the contract and breach, as averred by the plaintiff; and that he has not been satisfied in his damages resulting from the breach. Under this state of the case, the demurrer should have been overruled.

But these questions may all be disposed of under one general head. Both the existence and breach of the contract are admitted throughout the whole pleadings; and the matter pleaded by the answers goes not in justification of the breach, but merely in mitigation of the damages sustained by the plaintiff. Every plea or answer in bar, to be good, must disclose a defence which, if true, will entirely defeat the action; otherwise it cannot be treated as a defence, but only as relating to a collateral point, to wit: the compensation which shall be given for the damages actually sustained. Take, for instance, the defence set up by the fifth answer, that the plaintiff, by reasonable diligence, might have obtained employment at another school at a salary of twelve hundred dollarsper annum. This may all be true, and still not negative the legal presumption that some damage is sustained by every breach of a contract. Fifteen hun*367dred dollars, at another place, might have been wholly insufficient to compensate the plaintiff; for the expenses of breaking up, removing, and of living at another place, might come into the estimation of the damages. Instead, therefore, of the answer averring that such employment, at a different place, at twelve hundred dollars, would have been a full compensation to the party, the court must indulge in vague conjectures on this subject; and say that the plaintiff has sustained no damage because he could, at some other place, have received for his services the same rate of compensation. The answer to such position is, that the plaintiff has settled himself for the year under the terms of the contract, and it cannot, therefore, be said that twelve hundred dollars per annum, at another place, will fully compensate him; while it might tend greatly to reduce the damages. But there is a wide difference between that which merely tends to mitigate the damages, and that which shows no damage at all.

We are, therefore, of opinion that the court erred in overruling the demurrer to the several answers.

Judgment reversed, demurrer to answers sustained, judgment respondeat ouster, and cause remanded.