236 Mass. 105 | Mass. | 1920
This is an action of contract to recover damages for breach of a written agreement to employ the plaintiff as a salesman from September 15, 1913, to September 15, 1914, at a weekly salary of $50, and further compensation, payable at the end of the term, of two hundred and fifty shares of the capital stock of the defendant corporation at its par value of $10 a share. The writ is dated June 8, 1914. There was evidence that the defendant discharged the plaintiff on April 11, 1914. On April 13 the plaintiff brought an action in the Municipal Court .of the City of Boston on an account annexed, — item one being for salary for the week ending April 11, item two for salary to April 18, and item three, salary to April 25 and expenses from March 14 to April 11. The judge found there was due the plaintiff the sum of $50 for salary to April 11, 1914, and $45.78 for expenses. Judgment was entered in the sum of $95.78. Execution issued and was
The defendant filed a plea to dismiss this action because of the former proceedings. At the hearing on the plea evidence was presented which is not reported; the plea was overruled. The plaintiff recovered a verdict of $4,365.40. In Dalton v. American Ammonia Co. 231 Mass. 430, when the same parties were before this court, it was decided that the judgment of the Municipal Court of the City of Boston was conclusive, that the defendant had broken the contract and had wrongfully discharged the plaintiff. The defendant now contends that as the plaintiff has elected by this action in the Municipal Court to treat the contract as rescinded and has recovered the valúe of the services actually performed, he cannot pursue an inconsistent remedy and recover damages for the breach, based on the affirmation of the contract.
There is no doubt of the general principle of law that the plaintiff had an election of remedies; and if he chose to treat the contract as ended or rescinded and recovered the value of the work and labor done he could not thereafter consider it as subsisting and recover damages for its breach. Such an action would be inconsistent with his former action, and he must accept the consequences of his assent to the repudiation of the contract by the defendant. Mullaly v. Austin, 97 Mass. 30. Daley v. People's Building, Loan & Saving Association, 178 Mass. 13, 17. Brown v. Woodbury, 183 Mass. 279. Holman v. Updike, 208 Mass. 466, 471. Pye v. Perry, 217 Mass. 68, 70. Bullard v. Eames, 219 Mass. 49, 53. Goodman v. Pocock, 15 Q. B. 576. Unquestionably the plaintiff could, upon the defendant’s breach, have elected to consider the contract ended and have sued upon a quantum meruit for the value of his services, and such an election would have precluded him from pursuing a contradictory remedy based on the affirmation of the contract. Mullaly v. Austin, supra.
The action of debt is abolished in this Commonwealth, R. L. c. 173, § 1, cl. 1, and if the terms of a special contract have been fulfilled so that nothing remains but a duty to pay money, the amount may be recovered under an account annexed. Hall v. Wood, 9 Gray, 60. Morse v. Sherman, 106 Mass. 430. Lovell v. Earle, 127 Mass. 546. By the practice in this Commonwealth,
The plaintiff recovered in the Municipal Court upon an account annexed for tile expenses and the instalments of salary due under the contract. He did not elect by this action to consider the contract as terminated. He relied on it and considered it still in force. He did not in the former action seek to recover for the value of the services independent of the contract price; he recovered the wages due him as wages, or salary, according to the stipulation of the contract; and the action was not inconsistent with the position he now takes in claiming that the contract is still subsisting and that he is entitled to damages for its breach. “The defence of waiver by election arises where the remedies are inconsistent; as where one action is founded on an affirmance, and the other upon the disaffirmance of a voidable contract, or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties, once for all.” Connihan v. Thompson, 111 Mass. 270, 272.
The contract provided that the plaintiff was to receive a salary of $50 a week. He could have sued for this claim even if he continued in the employment of the defendant. The defendant on April 11 became his debtor for that amount, and his demand was not inconsistent with the one he now makes, based upon the refusal
The defendant relies on Olmstead v. Henry Bach & Son, 78 Md. 132, James v. Allen County, 44 Ohio St. 226, Doherty v. Schipper & Block, 250 Ill. 128, and Jones v. Dunton, 7 Ill. App. 580. These cases are distinguishable from the case at bar. In the case first cited, the plaintiff was hired in February, 1892, for the term of one year, at a weekly salary of $50. On April 5 of that year, he was discharged and his wages were paid to April 9. Nine days after his dismissal he sued for and recovered the sum of $50, which judgment was paid. In the subsequent action for the recovery of additional instalments of salary, it was decided that he was barred by the former action, which, it was held, was in effect an action of damages for the breach of the contract. In that case there was no debt due the plaintiff for services rendered. When he began his action he had been paid in full for services performed, and the wages he sought to recover, as well as those sued for in the former action, were not actually earned but were for work and labor which he was ready and willing, but had not been permitted, to perform. The same principle in substance was held to be applicable in the other above mentioned cases. Jones v. Dunton cites with approval Howard v. Daly, 61 N. Y. 362, quoting from page 370 of that opinion, when, after stating that a servant wrongfully discharged may treat the contract as continuing and recover for the breach or may rescind and sue for the value of the services performed, states the rule in this language: “These remedies are independent of and additional to his right to sue for wages, for sums actually earned and due by the terms of the contract.”
In Keedy v. Long, 71 Md. 385, also relied on by the defendant, the appellee sued for damages on account of the wrongful dismissal from employment. She was hired for a year, on or about-
Item two of the plaintiff’s declaration in the earlier action is for “salary as salesman” to “April 18,” and item three, for “salary as salesman” to “April 25.” Under his declaration the plaintiff could not recover and did not in fact recover for these items, Moulton v. Trask, 9 Met. 577, 580, and by merely declaring on them we do not think it can be said that he has made a decisive election inconsistent with his present claim. See, in this connection, Moulton v. Trask, supra; Miller v. Hyde, 161 Mass. 472; Frost v. Thompson, 219 Mass. 360, 369.
The defendant contends that the plaintiff’s discharge was revoked and bases this contention on the statement of James J. Loughery, the treasurer of the defendant corporation, that on April 11 he told the plaintiff “he would talk with him in Pitts-burg; that he was to go there and that he (Loughery) would talk with him there.” Loughery denied that he discharged the plaintiff. The previous action settled the question that, when that action was brought on April 13, the plaintiff was then discharged
Exceptions overruled.
Order overruling plea affirmed.