80 Ala. 329 | Ala. | 1885
The several suits were properly consolidated, under the provisions of section 3024 of the present Code. They were all pending at the same time, between the same parties, in the same court, and were of such a nature as that they could have been joined. Each was an action ex contractu^ having been brought on an agreement for the payment of money. — Code, 1876, § 2986. No one of these actions, moreover, recognizes the contract of service between the plaintiff and defendant as rescinded, or abandoned on the part of the plaintiff, but rather as a subsisting contract-of which the defendant has been guilty of a breach.
When a servant or employee has been discharged from service without a sufficient legal excuse, before the expiration of his term, the rule as to his choice of remedies is not free from confusion under the authorities. The following principles, however, we deem to be settled: (1.) He may elect to treat the contract as rescinded and entirely abandoned, and sue on a quantv/m meruit for work actually performed ; or (2.) He may at once sue for a breach of the contract by the defendant and recover damages for such breach up to the date of trial; or (3.) He may wait until the expiration of the term of service, and sue for the stipulated wages agreed to be paid for the whole term. — Strauss v. Meertief, 64 Ala. 299, and cases cited; Holloway v. Talbot, 70 Ala. 389; Decamp v. Hewitt, 43 Amer. Dec. 204, and note; 2 Add. Contr. § 897; Wood on Master and Servant, pp. 237, 250, § 125.
If the plaintiff’s wages are payable in monthly installments, the rule settled in this State is that he may, if he so elects, bring a separate suit for each installment as it falls due. — Davis v. Preston, 6 Ala. 83; Strauss v. Meertief, supra; Fowler v. Armour, 24 Ala. 194.
Where the suit is brought after the expiration of the term of service, or such terra has expired at the day of trial, the measure of damages, prima facie, would be the wages agreed to be paid according to the terms of the contract. — Wood on Master and Servant, 238; Fowler v. Armour, 24 Ala. 194;
But it is permissible for the defendant to show, in order to reduce this prima faeie amount of recovery, that the plaintiff obtained, or could have obtained other employment by the exercise of reasonable diligence on his part; and the burden of proving these facts rests-on the defendant. — Strauss v. Meertief, supra; Massey v. Taylor, 5 Cold. (Tenn.) 447; 2 Greenl. Ev. § 261 a. We take this to be the proper rule whatever may be the nature of the action. It is true that where the plaintiff elects to sue upon the contract, averring his readiness at all times to perform, there seems to be a logical repugnancy in the idea that he must seek other employment, in as much as to be always strictly ready he must be always idle. This difficulty originates in the doctrine of constructive service, which is a mere fiction of the law according to which a tender and readiness to perform is regarded as tantamount to actual performance, and entitling the plaintiff in all proper cases to a recovery of the contract price as the absolute measure of his damages. The doctrine, can not, however, be followed to its logical consequences, and has been abrogated in most of the States, and modified in others. The averment of a readiness to perform, therefore, by the plaintiff is not to be taken as absolutely true in all cases, but true only sub modo and for the purpose of sustaining the action. — Decamp v. Herrit, 43 Amer. Dec. 203, note; Wood on Master and Servant, p. 239. It has been observed of the rule that it is quasi performance, but it does not regulate the amount of damages. — 1 Sedgw. on Dam. (7th Ed.) 450-51. It can not, therefore, be permitted to override a rule of public policy, favoring industry and striking at idleness, by which it is made incumbent on the injured party to do what he reasonably can to lessen the injury suffered by him. As said in -Strauss v. Meertief, 64 Ala. 308, supra, “ neither good ■'morals, nor the law, will countenance him in persisting voluntarily in idleness, that the amount of his recovery from the defendant may not be diminished.” To permit this would be to superadd a fraud to a moral vice, which it would be more honorable in the law to punish than to countenance. — Shannon v. Comstock, 21 Wend. 457; Howard v. Daly, 61 N. Y. 362. The.mere act of engaging in other business can not operate to entirely defeat the plaintiff’s right of recovery by negativing the fact that he kept himself in readiness to perform his contract of service. True, there is a dicütm to this effect in Holloway v. Talbot, 70 Ala. 392, but it is manifest that the two principles are inconsistent. It would
The plaintiff is not required to accept any kind of employment, but only such as is of the same kind or general nature with that from which he was dismissed — of equal grade, and not of a more menial or onerous, kind. — Strauss v. Meertief, 64 Ala. 299; Wolf v. Studebaker, 65 Pa. St. 459. Nor is he compelled, under this rule, to go into a different neighborhood or community. — Howard v. Daly, supra; Gillis v. Space, 63 Barb. 177. The fact, and peculiar locality and circumstances under which employment is sought, may, no doubt, tend in some cases to prove an assent on the part of the plaintiff tp the rescission or abandonment of the contract, bnt the question of intention in these cases is clearly for the determination of the jury, in most cases.
The rulings of the court are susceptible of an interpretation in harmony with the foregoing principles, and are -free from error.
The exceptions to the rulings on the evidence are, in our opinion, not well taken. We have also examined the charges of the court, not particularly considered, and are satisfied that they are also free from error.
The judgment-is affirmed.
