21 Ala. 567 | Ala. | 1852
— Upon authority it is well settled, that where a contract is made for personal and individual services, as in the case of clerks, overseers, agents, &c., at a stipulated price, and for a specific period, the party whose services are thus engaged, upon being discharged by the other party without cause, before the expiration of the term of his engagement, may recover the amount agreed to be paid for the entire term. Sprague v. Morgan, 7 Ala., 952; Davis v. Ayers, 9 ib., 292 ; Martin v. Everett, 11 ib., 375. He is not compelled to treat the contract as ended by the act of the opposite party, but may consider it as continuing for the full term; and in such case, his right to recover the full amount rests upon the fact, that the contract is entire, and the service personal, thus rendering it necessary, if he wishes to recover the amount stipulated to be paid for the ivhole term, that he should enter into no engagement which would prevent the performance of the entire agreement on his part. Costigan v. Mohawk & Hudson Rail Road Co., 2 Denio, 609. He may, however, consider the breach of the opposite party as terminating the contract before the period fixed for its performance ; but in such case, it is doubtful whether the same
In tbe case under consideration, tbe contract cannot be regarded as a contract for personal services, in tbe sense in wbicb we have used tbis term. Tbe defendant in error was to furnish tbe borses of tbe plaintiff in error with feed, bis driver with board, and to have certain other services performed, none of wbicb be was required, either expressly or by implication, to render in person; and for wbicb tbe plaintiff in error was to pay at stated times, and for a certain period, a stipulated sum. Tbe contract may properly be assimilated to an agreement for work to be performed, or materials to be furnished, at a stipulated price; in wbicb case, tbe measure of damages is held to be, tbe difference between tbe cost of tbe work or materials and tbe amount agreed to be paid. George v. Cahaba Rail Road Co., 8 Ala., 234. Tbe defendant in error, according to tbis rule, would be entitled to a pro rata compensation, according to tbe terms of tbe contract, for tbe time during wbicb be bad performed tbe agreement, wbicb bad not been paid, and for tbe profits wbicb be could have made during tbe remaining time it bad to run; or tbe difference between tbe cost of tbe feed, board and services, during such time, and tbe amount wbicb he is entitled to receive during such time according to tbe rate established by tbe contract.
Tbe charge of tbe court being in conflict with these views, tbe judgment must be reversed, and tbe cause remanded.