78 P. 438 | Kan. | 1904
The opinion of the court was delivered by
Plaintiff in error,. James, on March 11, 1901, was engaged by the defendant in •error, Parsons, Rich & Co., to work for it as a traveling salesman until the 1st day of October of the same year, at a monthly salary of $85, the same to be due and payable on the first day of each calendar month. He did so work until the 3d day of May, 1901, when without adequate cause or excuse he was discharged from his employment by the defendant. Estimated at the rate he was to receive by the terms of the contract, he had earned up to this time $53.66, but this •sum included the balance due up to the 1st of May and the amount earned during the first three days of May, but not as yet due. On the 4th day of May the plaintiff commenced a proceeding in the district court of Saline county to recover from the defendant upon two causes of action : (1) For the $53.66 salary ; (2) for $425, the amount of salary that would be due him under the contract for the five months from May 1 to October 1, and, also, for the further sum of $1000, which he alleged he had been damaged because of the defendant’s breach of the contract in discharging him. A demurrer to the second cause of action was sustained, and that was dismissed by the plaintiff without prejudice. Judgment was rendered upon the first cause of action for the amount prayed for, $53.66, which judgment was subsequently satisfied in full by the defendant.
This action was commenced before a justice of the peace of Cloud county, on August 26, 1902, to recover
He cannot, however, have both of these remedies,
The plaintiff insists that the Saline county action was brought upon the contract, and involved only wages due under the terms of the contract, and, therefore, having dismissed that cause of action, which claimed for wages for the balance of the time after May 1 under the terms of the contract, he could subsequently maintain an action for such wages. This would be true if his assumption that his first cause of
The judgment of the district court is affirmed.