31 Miss. 361 | Miss. | 1856
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
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
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
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.