84 Ala. 508 | Ala. | 1887
The most important inquiry in this case, alike of law and of • fact, was whether Ohidester was employed by Liddell to perform a year’s service for one thou, sand dollars to be paid in gross, or to be paid in monthly in*' stallments. If the former, then the recovery and enforce-' meht of the judgment for a part of the demand in June, 1886, is a complete defense and bar to this action, and nothing should be recovered. This, under the well known principle, that a plaintiff can not split up a single cause of action into two or more suits; and if he does so, and recovers a part of his demand, this is a waiver of and a bar to the residue of his claim, be it much or little. — Oliver v. Holt, 11 Ala. 574; O'Neal v. Brown, 21 Ala. 182; S. & N. R. R. Co. v. Henlein, 56 Ala. 868; Wharton v. King, 69 Ala. 365.
If, on the other hand the wages were due and demandabl© at the -end of each month, then the recovery of one installment, unreversed, is a complete answer to, and preclusion of all defenses to the merits, which were, or could be pleaded to such second suit. — Rakes v. Pope, 7 Ala. 161; 3 Brick. Dig. 580, §§75, et seq.; Whart. Civ. Ev. § 758; Gardner v. Buckbee, 3 Cow. 120.
The contract iif this case was by telegraphic correspondence. Liddell’s offer was, “If one thousand dollars a year is an inducement, come immediately. Answer.” Ohidester’s acceptance was, “Will accept one thousand dollars a year.” These communications, unexplained, shoxv a single contract for a year, the wages to be one thousand dollars in gross.
There was testimony that up to the time of Ohidester’s discharge his wages were paid to him monthly; but the testimony on this subject was somewhat in conflict. — Partridge v. Forsyth, 29 Ala. 200; Com. Hire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320.
It is contended for the appellee that the verdict and judgment in the former suit — that which was tried in 1886 — are conclusive that Oliidester’s wages were due and payable in monthly installments; and that without sxrch-finding the jury could not have rendered a verdict in his favor. The elements necessary to constitute a judgment in one suit a bar to a second suit are, “1st, that the issue in the second action, upon which the judgment is brought to bear, was a material issue
In the first suit, instituted before a justice of the peace, the cause of action was described as follows: “The plaintiff claims of defendant $41.50, due by acc. on 26th July, 1885, for salary due and for services rendered by pl’ff to the def’t.” When the case reached the Circuit Court by appeal, a new complaint was filed with three counts, two common and one special. The first count was “for work and labor done by the plaintiff for the defendant, and at his request, during the month of July, 1885.” The second count was for the “sum of fifty dollars, due by account stated between the plaintiff and the defendant on, to-wit, the first day of August, 1885.” The third count was a special count. It averred that there was a contract for a year, the wages to be paid in monthly installments of $83.33; that plaintiff, Chidester, was serving, and ready to serve, when on July 15th, 1885, without fault on his part, Liddell discharged him, paying him on that month’s wages thirty dollars, leaving the balance, $41.50, unpaid. Eor that balance, with interest, this count claimed judgment. The recovery was for that sum with inter it, which was acquiesced in and paid.
It is settled in this State, by many decisions, that when Chidester was discharged, he had the option of one of three remedies, if the discharge was wrongful. (1.) He could have elected to treat the contract as rescinded, and sue on a quantum meruit for any labor he may have performed. (2.) He could have sued at once for an entire breach of the contract by the defendant; in which event he would have been entitled to recover all damages he suffered up to the trial, not exceeding the entire wages he could have earned under the contract. Or, (3) he could have waited until his wages would mature under the terms of the contract, and sue and
It is manifest that the former suit was not brought on the first of the alternate grounds stated above. There is nothing to show that it relied on the rescission or abandonment of the contract; and if it had, there were no past services actually rendered and unpaid for, on which to found a recovery. The suit was for that part of the salary for July, which had not been paid. Nor was the suit brought on the second of the grounds — an entire breach of the contract. On the contrary, it treated the contract as continuing through the month of July, and sued for the wages alleged to have been constructively earned in July, after the discharge.
The former suit was then brought on the third of the grounds, treating the contract as still binding on Liddell, and claiming wages according to its terms. It was brought July 27th, 1885, the first day after the completion of one of the months of the wage-year. If the contract was for the payment of one thousand dollars in gross at the end of the year, February 26, 1886, that suit was prematurely brought, and there could have been no recovery. It was indispensable to plaintiff’s right of recovery to show, that by the terms of the contract, his wages were due in monthly installments, one installment of which had matured. This was “essential to the finding of the'former verdict.” -
The foregoing facts are placed beyond dispute in the record before us. They estop Liddell from denying that by the terms of his contract with Chidester, he was to pay him wages in monthly installments, and that he discharged plaintiff without cause. And the same inevitable result would follow, no matter what proof he might offer that the contract was for the payment of Chidester’s salary in gross, and that he had good grounds for discharging him.
We have not deemed it necessary to consider the rulings on demurrer. Whether right or wrong, they could not have affected the defendant injuriously.
There was no error in the charges of the court.
Affirmed.
