Bowman v. Holladay

3 Or. 182

• Court: Multnomah County Circuit Court, Oregon
• Decided: February 15, 1870
• Status: Published

Opinion

Upton, J.

The argument in support of the demurrer, assumes that there is an action for money, due on contract, and another cause of action for damages for the breach of a contract, and that the two causes of action are so essentially different from each other, that they cannot both be properly set forth in the same complaint, or sued in the same action. In every action for money due according to the terms of a contract, the gist of the action is the breach of the contract, and a cause of action does not arise, until some condition of the contract has been broken. Every such action is an action for damages, for a breach or violation of the contract. There is no such distinction between the two alleged claims or demands, mentioned in the argument in this case, as exists between a cause of action for damages, for the breach of a contract, and an action for a tort.

If a contract has been broken in two particulars, even if the breaches are such as to give rise to two separate causes of action, I see no reason why redress may not be had for both injuries in the same action. I think the assumption that the complaint discloses two causes of action is erroneous. The only matter for which redress is asked in this case, is the non-payment of wages alleged to be due. If the plaintiff has a just claim for more money than he had earned up to the time he was discharged, that claim is for wages alleged to be due. It is true, that according to the allegations of the complaint, a portion of the wages accrued while the plaintiff was at work under the contract, and a portion accrued while he was offering to work in pursuance of the contract, and after he was refused permission to work; but nothing else but wages is claimed, and the "facts set out lay the foundation for nothing else. The plaintiff states that he “was thrown out of employment against his will,” but the claim is not for damages sounding in tort, nor does the complaint indicate that the plaintiff avails himself of his privilege to rescind the contract.

. In this class of cases, the law gives to the person who, without fault of his own, is thrown out of employment, an option to rescind the contract and sue at once for whatever damages result from the breach of the contract, or to hold the contract still in force and claim his wages as, from time to time, the money becomes due.

The demurrer should be overruled.