Jameson v. Board of Education

89 S.E. 255, 78 W. Va. 612, 1916 W. Va. LEXIS 145

• Court: West Virginia Supreme Court
• Decided: June 3, 1916
• Status: Published

Opinions

Williams, President:

Plaintiff recovered a judgment against defendant for $609.67, the amount of seven months wages, claimed to be due her on a contract of employment as teacher of music in the public schools of the cities of Benwood and MeMechen, in the school district of Union, Marshall county, and by this writ of error defendant seeks a reversal.

Plaintiff declared upon the special contract, averring that she was employed by defendant for a period of nine months, beginning on the 11th of September, 1911, and continuing for nine school months, on an agreed salary of $75 per month, payable monthly; that, throughout the term of employment, she stood ready to perform her part of the contract; that she appeared at the schools on the morning of each school day and demanded of the respective superintendents thereof that her work be assigned her; and that she did actually perform her part of the contract. The declaration contains also the common counts in assumpsit. The only breach averred is the failure and refusal of defendant to pay the wages for the last seven months of the schools.

Defendant pleaded the general issue, and also tendered a special plea, which the court rejected on motion of plaintiff. It averred that plaintiff had theretofore sued defendant and recovered a judgment against it for $150, on account of salary claimed by plaintiff for the first two months of school, ending, respectively, on the 6th of October and the 3rd of November, 1911; that it was proven, on the trial of that -action, that defendant had revoked or attempted to revoke plaintiff’s appointment as music teacher, and had refused to permit her to teach; and that she had not, in fact, taught, though she held herself in readiness to do so; and that said judgment is still in force. Wherefore, defendant prayed judgment whether plaintiff ought to have or maintain her present action.

The case was tried by the court in lieu of a jury, upon an agreed statement of facts, from which it appears that the plaintiff was not permitted by defendant to teach; that it sued out a writ of injunction to prevent her from continually appearing at the schools for the purpose of teaching, which writ was later dissolved on her motion. It thus appears that plaintiff actually performed no part of the contract, although she was at all times ready to do so, but that she was prevented from performing by defendant.

There was a total breach of the contract by defendant’s refusal to permit plaintiff to perform her part of it. Her right of action for that breach was then complete, and it was not necessary for her to appear at the schools each day and demand opportunity to perform the contract. She could not thereby make her cause of action any more perfect than it was the moment she was informed that defendant had refused to be bound by the contract. Her suit is not for damages for a breach of the contract of employment, but is a' suit for wages claimed to be due under the contract, for services which were never actually performed. She seeks to treat the contract as subsisting until the end of the term, and broken only in respect of the promise to pay her the agreed monthly wages. This she can not do. Having performed no services whatever, she can not recover upon the promise, as if wages were earned. Her only right of action is for a breach of the contract..' -It is insisted that she is entitled to recover on account of constructive service, that being always ready and willing to perform the contract she should be regarded in law as having actually performed it. That doctrine was first announced by Lord Ellenborough in Gandell v. Potigny, 4 Campbell 375, a nisi prius case decided in 1816, in which he held that a servant, employed for a quarter and wrongfully discharged before the end thereof, might recover upon an indebitatus as-sumpsit count for wages for the entire quarter. Although that doctrine was followed in a few later cases, it has, long since, been repudiated as unsound, both in. England and in a majority of the states of the Union. The court of King’s Bench, in 1828, held that, “If the contract between master and servant be the usual one for a year, determinable at a month, the servant, if turned awray improperly, cannot recover on a count stating the contract to be for an entire year; and he cannot, on the common count for wages, recover for any further period than that during which he had served. ’ ’ Archard v. Honor, 3 Car. & P. 349. See also, Smith v. Hayward, 7 Ad. & E. 544, 112 Eng. Rep. 575; Goodman v. Pocock, 15 Q. B. 576. In the case last cited, plaintiff hired for a year, and was wrongfully dismissed’in the middle of a quarter. He brought an action for his wrongful dismissal, the declaration containing a special count therefor. The jury were instructed not to take into account the services actually rendered during the broken quarter, as they were not recoverable except upon an indebitatus count; and they gave damages accordingly. He then brought a second action to recover on an indeb-itatus count for services rendered during the broken quarter, and the court held that it could not be maintained. In his opinion at page 580, Lord Campbell says: ‘1 He might then have rescinded the contract, and have recovered pro rata on a quantum meruit. But he did not do this; he sued on the special contract, and recovered damages for a breach of it. By this course he treated the contract as subsisting; and he recovered damages on that footing. It is said that he recovered in that action in respect of no services except those of the past quarters. I receive with profound respect the opinion which the illustrious Judge who tried the former action is said to have expressed: but I have a clear opinion, and I must act upon it, that the jury in assessing damages for the wrongful dismissal ought to have taken into the account the plaintiff’s salary up to the time of his dismissal. It is said there is now no plea to raise the point. The plea of non assumpsit is quite sufficient: it obliges the plaintiff to shew a debt due; and that could be only by shewing that work was done for which payment could be claimed under the common count. ’ ’ Coleridge; J., in his opinion in the same case, says: “In a case like this the servant may either treat the contract as rescinded and bring indebitatus assumpsit, or he may sue on the contract; but he cannot do both; and, if he has two counts, he must take the verdict on one only. Here the plaintiff elected to sue on the contract; and he cannot now sue in this form. ’ ’ The following’ English cases are to the same effect: Elderton v. Emmens, 6 C. B. 160, 136 Eng. Rep. 1233, affirmed in House of Lords, 13 C. B. 495, 138 Eng. Rep. 1292; and Beckham v. Drake, 2 House of Lords Cases, 579.

The constructive service doctrine was -followed for a while by the courts of New York, but was later repudiáted. The court of appeals of that state, in Howard v. Daly, 61 N. Y. 362, 19 L. R. A. 285, expressly disapproves the doctrine of Gandell v. Potigny, supra, and overrules the earlier New York decisions. In that ease plaintiff was employed to act at the Fifth Avenue Theatre, in such capacity and manner as defendant might direct, and was to be paid a salary of $10 a week during the season, beginning about September 15, 1870, and continuing until about July 1, 1871. There, as in this-case, plaintiff was prevented by the defendant from entering upon the discharge of her - engagement, and, in fact, never rendered any actual service. The court held that she could not maintain an action for wages, but could sue only for breach of the contract, and that it was not necessary to tender her services after the breach. Respecting the constructive service doctrine, Judge Dwight, at page 373, says: “This doctrine is, however, so opposed to principle, so clearly hostile to the great mass of the authorities, and wholly irreconcilable to that great and beneficent rule of law, that a person discharged from service must not remain idle, but must accept employment elsewhere if offered, that we cannot accept it. If a person discharged from service may recover wages, or treat the contract as still subsisting, then he must remain idle in order to be always ready to perform the service. How absurd it would be that one rule of law should call upon him to accept other employment, while another rule required him to remain idle in order that he may recover full wages. The doctrine of ‘ constructive service-’ is not only at war with principle, but with the rules of political economy, as it encourages idleness and gives compensation to men who fold their arms and decline service, equal to those who perform with willing bands their stipulated amount of labor. Though the master has committed a wrong, the servant is not for one moment released from the rule that he should labor; and no rule can be sound which gives him full wages while living in voluntary idleness. For these reasons, if the plaintiff was discharged after the time of service commenced, she had an immediate cause of action for damages, which were prima facie a sum equal to the stipulated amount, unless the defendant should give evidence in mitigation of damages.”

Keedy v. Long, 71 Md. 385, was a case similar to the one we are now considering, except that there plaintiff had been permitted to render some services, whereas, in this case plaintiff was prevented from rendering any services. Miss Long was ■employed by Mr. Keedy to teach music in The Hagerstown Female Seminary, of which he was principal, for the period of ■a year at a salary of $350 for the term, payable in monthly installments. She taught one month and twenty days and was then discharged, having received pay for the first full month. She siied for twenty days salary and recovered judgment therefor which Keedy paid. She later sued for a breach of the contract and recovered a judgment for damages in the lower court. The defendant appealed and secured a reversal, the court holding that the judgment in the first action was a complete bar to the second. Another well cónsidered case by the ■same court, and directly in point here, is Olmstead v. Bach, 78 Md. 132. There plaintiff had been employed for a period of a year as cutter in defendant’s establishment and was to be paid $50 weekly. He was discharged before the end of the term and all wages due at that time were paid to him, including four days beyond the time when he was discharged. Nine days after his discharge he brought an action before a justice of the peace and recovered judgment for $50, which was satisfied. He thereafter brought another action, in the city court of Baltimore, for wages claimed to have become due after the first action. Defendant pleaded the judgment recovered in the first suit, as a bar to the second, to which plaintiff replied that the first suit was only for one week’s salary under the contract. A demurrer to this replication was sustained, .and judgment rendered for defendant; and plaintiff appealed. The court of appeals affirmed the judgment, holding that the contract was entire and indivisible and that, after its breach, but one action could be maintained on it.

James v. Allen County, 44 Ohio St. 226, is also directly in point. There plaintiff was employed as superintendent of the stone and brick work in the building of a courthouse, for such time as would be necessary to complete the building, at a salary of $100 a month, payable monthly. He was discharged before the building was completed, and sued for the wages which he claimed he should have been permitted to earn, from April 13 to June 13, 3882, and recovered judgment therefor. Later, he sued for wages which he could have earned from June 13 to August 13, 1882, and defendant pleaded the former recovery. A demurrer to this plea was overruled by the common pleas court, and judgment given for defendant. The judgment was affirmed on appeal, the court holding: “Where an employe, engaged under a contract for a specific time, the wages being payable in installments, is wrongfully discharged before the expiration of the period o'f hire, and all wages actually earned at the time of the discharge have been'paid, an action will not li.e to recover the future installments, as though actually earned, but the remedy is by action' for damages arising from the breach of the contract, and one recovery upon such claim is a bar to a future action.”

The decisions of the'different states of the Union on the point are not harmonious, some of them still holding to the early English doctrine. But the great majority of the states, as well as the better considered cases, hold that, where an employe has been engaged to render services for a definite period, even though his salary is payable in installments, the contract is not divisible, and, if .'wrongfully discharged or prevented from entering upon the services by his employer, he can not recover on a count for salary claimed to be due for services not actually.performed; nor can he maintain but one action for the breach of contract. The authorities following the doctrine of constructive service announced by Lord El-lenborough, as well as those that ignore it, some of them going so far. as to expressly disapprove it, may be found collated in 13 Am. & Eng. Ann. Cases, pp. 112-115.

The peculiar doctrine of successive liability for loss of wages, as if upon a contract of continuing indemnity, anounc-ed by the Minnesota court in McMullan v. Dickinson, 60 Minn. 156, 51 Am. St. Rep. 511, to be the proper rule, where a servant has been wrongfully discharged, we do not find to be followed by any other court. Such a rule produces a multiplicity of suits for one and the same wrong, and tends to encourage idleness in the discharged servant. Although wrongfully discharged, a servant still owes a duty, both to himself and to society, to be diligent, in trying to secure other employment. A recovery once had, whether it be upon a count for damages for a breach of the contract or upon an indebita-tus assumpsit count for services which could have been rendered, bars subsequent recovery. For the breach of an entire contract, the party aggrieved has a right to recover in the one action all damages, prospective as well as past. 2 Sedgwick, (9th ed.), Sec. 636g; Thomas v. Willoughby, 24 Grat. 521; Lamorcaux v. Rolfe, 36 N. H. 33; Wilkinson v. Dunbar, 149 N. C. 20; Sutherland v. Wyer, 67 Me. 64.; Litchenstein v. Brooks, 75 Tex. 196; and Monarch Cycle M’f’g. Co. v. Meuller, 83 Ill. App. 359.

That the contract, in this case, was entire needs no discussion. Plaintiff’s' declaration alleges that she was employed, for a period of nine months, — a school year.

Having declared on the special contract for wages which she claimed to be due thereunder, the performance of the services for which they were to be paid is put in issue by the general plea, and the agreed facts prove that plaintiff actually performed no services whatever, and, therefore, her suit must fail, unless her declaration may properly be regarded as a suit for damages for the breach of the contract for her env ployment. This question we need not determine, for the reason that, if it could be so regarded, her former recovery is a complete bar to the present action.

. . The judgment will be reversed; and, it being apparent from the agreed facts that plaintiff could not make out any better case, if a new trial should be awarded, judgment will be entered here for defendant.