MaRshall, J.
The assignments of error are sufficient to raise the question of whether the trial court erred in ordering judgment for plaintiff for $517.04. The determination of the court upon which the judgment rests is spoken of here as an order for judgment, because that is the effect of such determination, though the order, in form, was that a new trial be granted unless the plaintiff consented to reduce the judgment to $517.04. It is contended on the part of appellant that in making such order the court decided as a matter of law that the discharge of Hildebrand was justifiable,— while, it is contended by respondent’s counsel that the issue as to whether the discharge was justifiable was submitted to the jury and was found in favor of plaintiff; that such finding has not been disturbed; that the judgment as finally perfected was in part based thereon; and that no motion was made for a new trial before judgment, so as to present for review here the question of whether the verdict is contrary to the evidence. Neither contention appears to be borne out by the record. The court decided that the judgment ivas wrong and could not stand. That necessarily involved a decision that the verdict was erroneous for. some cause. The decision being general, it is impossible to say whether it was based upon the ground that the verdict was contrary to the evidence, or upon the ground that some error of law had been committed in neglecting to submit an issue of fact that, if found in appellant’s favor, might have reduced the verdict to $517.04. The indications from the record, however, are that the decision of the court was based on the idea that the finding of the jury on the issue submitted was contrary to the clear preponderance of the evidence. The court ordered the judgment to be set aside and a new trial granted unless the plaintiff consented to a reduction thereof to such an amount as would cover the wages earned and unpaid up to the 1st day of June, 1897. There was no controversy as to what that amount was, and [177]*177no controversy as to the facts upon which the question turned of whether the contract was entire. Both were questions of law, to he determined by the court from undisputed evidence, and had been decided. The ruling as to the character of the contract had been duly excepted to, and such decision was adhered to in making the order. The order was submitted to by plaintiff, and the judgment was accordingly reduced. That as effectually took the verdict of the jqry out of the case as a vacation of it.
The accepted option to take judgment, upon the theory that the controverted issues of fact were found against appellant, precludes respondent from insisting otherwise to prevent appellant from having the ruling of the court, ordering such judgment upon that theory, reviewed by this court. It must be considered that such issues have, in effect, been determined against respondent, and that such deter-' mination is a verity in the case. The judgment appealed from rests on the order of the court permitting it to stand for $517.04. The order is intermediate the judgment as finally perfected. It involves the merits and necessarily affects such judgment, and is therefore reviewable on this appeal, without any exception thereto. Sec. 3070, Stats. 1898.
The sole defense to plaintiff’s claim pleaded in the answer, that was supported by evidence on the trial, and was then and.is now insisted upon, is that the contract of employment was entire and was terminated for cause. It is claimed that the rule, that where an employee wrongfully terminates such a contract he cannot recover upon it for services rendered, applies to a case where such a contract has been terminated by the employer for cause. Counsel for respondent seems to concede that such is the law. In that view it is insisted upon one side that the evidence shows conclusively that the contract was entire, and therefore that plaintiff cannot recover; and upon the other that it was not entire, and, therefore that the judgment is right. [178]*178Whether the trial court considered the turning point in the case to be the one in controversy between counsel and decided it in respondent’s favor, and in that way reached the conclusion embodied' in the judgment, does not definitely appear.
Both counsel have misconceived the principles governing the facts of this case. The rule that an action cannot be maintained by an employee upon an entire contract without first fully performing on his part, does not apply where such performance is prevented by the employer, though such prevention be for cause. In the leading case in this court on the scope of the rule contended for, Diefenback v. Stark, 56 Wis. 462, 468, it was recognized that the rule does not apply where performance is prevented by act of God or the conduct of the party charged with the liability. In Mechera, Agency, '§ 635, it is said that the rule that no recovery can be had on an entire contract, without full performance, does not extend to those cases where the contract between the employer and employee is terminated by consent of the employer.
In England it appears that if an employee is prevented from carrying out his contract to the end, because of the conduct of his employer in discharging him for cause, he cannot recover for services rendered up to the time of the discharge. Smith, Master & S. (ed. 1885), pp. 220-222; Wood, Master & S. § 129. But, generally speaking, such is not the law in this country. Wood, Master & S. § 130; 14 Am. & Eng. Ency. of Law (1st ed.), 793, and cases cited; 2 Sutherland, Dam. (2d ed.), 1546; Taylor v. Paterson, 9 La. Ann. 251; Lawrence v. Gullifer, 38 Me. 532. The rule in England and this country is thus stated by Wood on Master & Servant, at § 84: “ If the contract is for a term, although the rate of compensation is at so much a day, week, or month, yet if the contract is silent as to the time of payment, it is entire and indivisible, and full performance must [179]*179precede a right of recovery,” in the absence of circumstances showing that the contract ivas not understood by •the parties as entire. “ So inexorable has this rule been regarded in England that it has been held that where a servant hired for a term dies before full performance, no recovery could be had by his executors for the wages earned at the time of his death, and the same rule is held in the case of a •servant dismissed for cause. But such is not now the rule in this eoxmiry, but in all eases where the servant is prevented from performing his contract, eithet* by sickness or death, or by reason of being discharged from the service, ¿whether rightfully or not, he is entitled to recover for the services actually rendered.”
Circumstances may exist that will enable an employer, who has discharged an employee for cause, to defeat, in whole or in part, any claim for wages up to the time of the discharge, but the mere fact that the contract is entire will not give him that power. He may recoup such damages as are allowable to him in such a case under the rules of law, •because of the conduct of the employee rendering his discharge necessary. But they must be claimed in the pleading and established on the trial. Mechem, Agency, § 619; Sutherland, Dam., supra; Newman v. Reagan, 63 Ga. 755. The text in Sutherland is well supported by the notes and is as follows: “The general rule, when a servant is discharged for cause, is to allow him his wages to the time of discharge, subject to deductions for his torts and deficiencies.” No such damages were claimed here.
Free access — add to your briefcase to read the full text and ask questions with AI
MaRshall, J.
The assignments of error are sufficient to raise the question of whether the trial court erred in ordering judgment for plaintiff for $517.04. The determination of the court upon which the judgment rests is spoken of here as an order for judgment, because that is the effect of such determination, though the order, in form, was that a new trial be granted unless the plaintiff consented to reduce the judgment to $517.04. It is contended on the part of appellant that in making such order the court decided as a matter of law that the discharge of Hildebrand was justifiable,— while, it is contended by respondent’s counsel that the issue as to whether the discharge was justifiable was submitted to the jury and was found in favor of plaintiff; that such finding has not been disturbed; that the judgment as finally perfected was in part based thereon; and that no motion was made for a new trial before judgment, so as to present for review here the question of whether the verdict is contrary to the evidence. Neither contention appears to be borne out by the record. The court decided that the judgment ivas wrong and could not stand. That necessarily involved a decision that the verdict was erroneous for. some cause. The decision being general, it is impossible to say whether it was based upon the ground that the verdict was contrary to the evidence, or upon the ground that some error of law had been committed in neglecting to submit an issue of fact that, if found in appellant’s favor, might have reduced the verdict to $517.04. The indications from the record, however, are that the decision of the court was based on the idea that the finding of the jury on the issue submitted was contrary to the clear preponderance of the evidence. The court ordered the judgment to be set aside and a new trial granted unless the plaintiff consented to a reduction thereof to such an amount as would cover the wages earned and unpaid up to the 1st day of June, 1897. There was no controversy as to what that amount was, and [177]*177no controversy as to the facts upon which the question turned of whether the contract was entire. Both were questions of law, to he determined by the court from undisputed evidence, and had been decided. The ruling as to the character of the contract had been duly excepted to, and such decision was adhered to in making the order. The order was submitted to by plaintiff, and the judgment was accordingly reduced. That as effectually took the verdict of the jqry out of the case as a vacation of it.
The accepted option to take judgment, upon the theory that the controverted issues of fact were found against appellant, precludes respondent from insisting otherwise to prevent appellant from having the ruling of the court, ordering such judgment upon that theory, reviewed by this court. It must be considered that such issues have, in effect, been determined against respondent, and that such deter-' mination is a verity in the case. The judgment appealed from rests on the order of the court permitting it to stand for $517.04. The order is intermediate the judgment as finally perfected. It involves the merits and necessarily affects such judgment, and is therefore reviewable on this appeal, without any exception thereto. Sec. 3070, Stats. 1898.
The sole defense to plaintiff’s claim pleaded in the answer, that was supported by evidence on the trial, and was then and.is now insisted upon, is that the contract of employment was entire and was terminated for cause. It is claimed that the rule, that where an employee wrongfully terminates such a contract he cannot recover upon it for services rendered, applies to a case where such a contract has been terminated by the employer for cause. Counsel for respondent seems to concede that such is the law. In that view it is insisted upon one side that the evidence shows conclusively that the contract was entire, and therefore that plaintiff cannot recover; and upon the other that it was not entire, and, therefore that the judgment is right. [178]*178Whether the trial court considered the turning point in the case to be the one in controversy between counsel and decided it in respondent’s favor, and in that way reached the conclusion embodied' in the judgment, does not definitely appear.
Both counsel have misconceived the principles governing the facts of this case. The rule that an action cannot be maintained by an employee upon an entire contract without first fully performing on his part, does not apply where such performance is prevented by the employer, though such prevention be for cause. In the leading case in this court on the scope of the rule contended for, Diefenback v. Stark, 56 Wis. 462, 468, it was recognized that the rule does not apply where performance is prevented by act of God or the conduct of the party charged with the liability. In Mechera, Agency, '§ 635, it is said that the rule that no recovery can be had on an entire contract, without full performance, does not extend to those cases where the contract between the employer and employee is terminated by consent of the employer.
In England it appears that if an employee is prevented from carrying out his contract to the end, because of the conduct of his employer in discharging him for cause, he cannot recover for services rendered up to the time of the discharge. Smith, Master & S. (ed. 1885), pp. 220-222; Wood, Master & S. § 129. But, generally speaking, such is not the law in this country. Wood, Master & S. § 130; 14 Am. & Eng. Ency. of Law (1st ed.), 793, and cases cited; 2 Sutherland, Dam. (2d ed.), 1546; Taylor v. Paterson, 9 La. Ann. 251; Lawrence v. Gullifer, 38 Me. 532. The rule in England and this country is thus stated by Wood on Master & Servant, at § 84: “ If the contract is for a term, although the rate of compensation is at so much a day, week, or month, yet if the contract is silent as to the time of payment, it is entire and indivisible, and full performance must [179]*179precede a right of recovery,” in the absence of circumstances showing that the contract ivas not understood by •the parties as entire. “ So inexorable has this rule been regarded in England that it has been held that where a servant hired for a term dies before full performance, no recovery could be had by his executors for the wages earned at the time of his death, and the same rule is held in the case of a •servant dismissed for cause. But such is not now the rule in this eoxmiry, but in all eases where the servant is prevented from performing his contract, eithet* by sickness or death, or by reason of being discharged from the service, ¿whether rightfully or not, he is entitled to recover for the services actually rendered.”
Circumstances may exist that will enable an employer, who has discharged an employee for cause, to defeat, in whole or in part, any claim for wages up to the time of the discharge, but the mere fact that the contract is entire will not give him that power. He may recoup such damages as are allowable to him in such a case under the rules of law, •because of the conduct of the employee rendering his discharge necessary. But they must be claimed in the pleading and established on the trial. Mechem, Agency, § 619; Sutherland, Dam., supra; Newman v. Reagan, 63 Ga. 755. The text in Sutherland is well supported by the notes and is as follows: “The general rule, when a servant is discharged for cause, is to allow him his wages to the time of discharge, subject to deductions for his torts and deficiencies.” No such damages were claimed here. On the contrary, as we have seen, it was conceded on the trial that plaintiff was entitled to the judgment rendered, unless precluded therefrom by reason of the contract of employment being entire.
There is danger, as is-evidenced by this case, of confusing the law applicable to a case where an employee under an ■entire contract voluntarily abandons it, and that applicable [180]*180where such an employee is prevented from carrying out his contract by the justifiable conduct of his employer in discharging him. In the former case he cannot maintain an action upon the contract at all; in the latter he can maintain such an action for wages up to the. time of the discharge, subject, however, to the right of the employer to recoup damages.
What has been said does not militate at all against the general rule laid down in Diefenback v. Stark, 56 Wis. 462, to the effect that when a contract is entire, the consideration moving from each party to the other is entire, and their rights áre reciprocal, full performance by one being requisite to his claiming any benefit under the contract from the other. However, like most general rules, it admits of exceptions, and there are several of them, one being that which is.the key to plaintiff’s right of recovery here, viz.: the condition precedent, of full performance by one party, is waived if the contract be terminated by the other party, regardless of whether it is by his mere consent or by his rightfully or wrongfully preventing such performance. The only bearing the cause for terminating an entire contract by one party has on the rights of the other seeking compensation for what he has done under it, maybe stated as follows: If one party to a contract withdraws from it-by consent of the other after part performance thereof, he can recover for what he has done at the contract rate. If a party to an entire contract, after part performance thereof by him, be prevented by the wrongful conduct of the other from rendering to such other complete performance, he can recover upon the contract for what he has done, at the contract rate, and his damages for not being allowed to fully perform, not exceeding the full amount,he could have earned by such performance. If, after part performance of such -a contract by one party, he is rightfully prevented by the other from further performance, he can recover on- the contract for the part [181]*181performance, not exceeding the contract rate, being liable to respond in damages to the adverse party to the amount of the latter’s legal damages caused by the acts that justified the termination of the contract.
The foregoing is in harmony with Walsh v. Fisher, 102 Wis. 172; Winlder v. Racine W. & C. Co. 99 Wis. 184; Dickinson v. Norwegian P. Co. 101 Wis. 157; and other cases decided by this court. In this class of cases it is said the basis of recovery is the contract, though the amount recoverable is by no means absolutely fixed thereby. It prima facie furnishes the standard from which to compute the value of the claimant’s services, and while the recovery cannot exceed the amount computable by such standard it may be reduced by damages suffered; The rule is laid down in Wood, Master & S., at § 130, thus: “A dismissal for cause before the expiration of the term does not operate as a rescission of the contract, so as to enable the servant to sue upon qumitum meruit. He must either sue upon the contract or for damages for its breach, and in either event the result of his recovery, is the contract price, subject to such deductions as the master is legally entitled to.” That is to say, while the person dismissed from service for cause cannot sue upon a quantum meruit, his recovery must be upon a quantum meruit on the contract basis, it being presumed that he earned and deserves the contract price for the time his services continued, till the contrary be shown by evidence establishing a right to deductions therefrom as recoverable damages. In short, as said by one of the authorities above quoted, the discharged servant is entitled in any event “ to his wages to the time of his discharge, but subject to deductions for his torts and deficiencies.”
It follows from the, principles stated that the judgment appealed from is right, regardless of any question presented in the briefs of counsel for either side. Plaintiff’s intestate, after part performance of his contract with appellant, was [182]*182for good cause prevented from completing bis term. Such performance, at the contract rate, with interest, amounted to the sum for which judgment was rendered. No damages-were claimed for the acts, of which the intestate was guilty, that necessitated his discharge. That being the situation at the time the judgment was ordered, there was nothing before the court entitling appellant to any diminution of the amount earned by the intestate at the contract rate.
By the Oourt. — - The judgment of the circuit court is affirmed.