Winborne, J.
In the main these two questions present the assignments of error debated on this appeal:
1.
Where on
defendant’s appeal thereto
from
judgment
of
general county court the Superior Court sustains the verdict on one, and sets aside the verdict, and orders' a new trial on the other of two issues with respect to separable elements of damage for breach of contract submitted to and answered by the jury in favor of plaintiff in general county court, and the judgment of Superior Court is affirmed on appeal to Supreme Court, is the judgment
res judicata
of the matters to which the issue, on which the verdict is sustained, relates?
2. Where plaintiff, who has contract of employment for a period of five years at compensation payable in installments, institutes an action for the recovery of damages for breach of such contract before the expiration of the period of time covered thereby, is the recovery limited to damages to date of institution of action?
We are of opinion and hold that these questions are properly answered in the affirmative.
1. The first question, predicated upon a group of assignments of error, is succinctly raised by the ruling of the judge of Superior Court in sustaining exception by defendant to the refusal of general county court to instruct the jury, as requested, “that in considering what damages, if any, the plaintiff is entitled to, it will not take into consideration any damages for board and lodging for the plaintiff and her two daughters for the reason that it has heretofore been determined in this action by a jury verdict, that the plaintiff was not entitled to recover therefor.”
This request for instruction is based upon the judgment of the Superior Court sustaining the verdict on the fourth issue in former appeal from the general county court.
The Superior Court, as it relates to this action, is a court of appellate jurisdiction of all appeals from the general county court for errors assigned in matters of law only, and may either affirm or modify the judgment of the general county court or remand the cause for a new trial. From the judgment of the Superior Court an appeal may be taken to the Supreme Court, as is provided by law. Public Laws 1923, ch. 216, sec. 18, incorporated in Michie’s Code of 1935, as sec. 1608 (cc), as amended by Public Laws 1933, ch. 109. See
Jenkins v. Castelloe,
208 N. C., 406, 181 S. E., 266;
Smith v. Winston-Salem,
189 N. C., 178, 126 S. E., 514;
Davis v. Wallace,
190 N. C., 543, 130 S. E., 176.
“A decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal;”- — headnote epitomizing decision in
Harrington v. Rawls,
136 N. C., 65, 48 S. E., 57, cited in numerous decisions of this Court, among which are these:
Nobles v. Davenport,
185 N. C., 162, 116 S. E., 407;
Ray v. Veneer Co.,
188 N. C., 414, 124 S. E., 756;
Strunks v. R. R.,
188 N. C., 567, 125 S. E., 182;
Davis v. Lumber Co.,
190 N. C., 873, 130 S. E., 156;
Mfg. Co. v. Hodgins,
192 N. C., 577, 135 S. E., 466;
Moses v. Morganton,
195 N. C., 92, 141 S. E., 484;
Mayo v. Comrs.,
196 N. C., 15, 144 S. E., 925;
Ingle v. Green,
199 N. C., 149, 154 S. E., 83;
S. c.,
202 N. C., 116, 162 S. E., 476;
Masten v. Texas Co.,
204 N. C., 569, 169 S. E., 142;
Power Co. v. Yount,
208 N. C., 182, 179 S. E., 804;
Betts v. Jones,
208 N. C., 410, 181 S. E., 334;
Ferrell v. Ins. Co.,
208 N. C., 420, 181 S. E., 327;
Groome v. Statesville,
208 N. C., 815, 182 S. E., 657;
Dixson v. Realty Co.,
209 N. C., 354, 183 S. E., 382;
McGraw v. R. R.,
209 N. C., 432, 184 S. E., 31;
Stanback v. Haywood,
213 N. C., 535, 196 S. E., 844.
If on the first trial in the present action plaintiff considered that her rights would be prejudiced by the submission of a separate issue with respect to her claim for damages for board for herself and two children, she should have objected and preserved exception to the submission of it and appealed. But having failed to so object and appeal, if there were error in the judgment of the Superior Court in sustaining the verdict on the fourth issue, the remedy then opened to plaintiff was by exception and appeal to the Supreme Court. Then, if there were error in the decision of the Supreme Court, the remedy was solely by application for a rehearing to correct such error. Failing in or to do this, the judgment is
res judicata
.and binding in subsequent proceedings in the trial court and on subsequent appeals.
Reference, however, to the record and to brief of plaintiff on the former appeal reveals that while exception is taken to the judgment, it is referred to as formal, and the ruling of the judge below in sustaining the verdict on the fourth issue is not pressed for error.
2. The second question, likewise founded upon series of assignments of error, is raised in summary by the rulings of the judge of Superior Court in sustaining defendant’s exceptions to the refusal of the general county court to instruct the jury as requested in these two special instructions: (a) “That when the plaintiff and defendant entered into the contract as set out in the complaint that they agreed upon what amount the plaintiff should receive for her services or her work in connection with said business, so the court charges the jury that in considering the question of damages it cannot allow anything in excess of 3 %% on the gross receipts which were received in said business, or which would have been received had the plaintiff and defendant continued to operate under the contract as originally entered into, up to and including July 8, 1937, the date on which this action was instituted;” and further, (b) “that the value of the contract to the plaintiff was the sum that she could reasonably expect to obtain from it after the contract was entered into, and the jury cannot, in passing upon any damage, take into consideration any values which it may be contended that the contract had outside of those specified in the contract itself, to wit: 3^2% on the gross receipts prior to July 8, 1937.”
With respect to the question here presented, plaintiff contends that the contract is for the entire five-year period of the lease in question, and that she is not limited in her recovery to the percentage due her under the contract to the date of the institution of the action. On the other hand, the defendant contends that the contract is one of employment and, while it may be entire, the services are to be paid for by installments at stated intervals, and the plaintiff, having elected to sue before the expiration of the life of the contract, is limited in her recovery of damages to the time of the bringing of the suit.
In. accepting the latter view, the court seems to have followed well established law in this State. In
Smith v. Lumber Co.,
142 N. C., 26, 54 S.
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Winborne, J.
In the main these two questions present the assignments of error debated on this appeal:
1.
Where on
defendant’s appeal thereto
from
judgment
of
general county court the Superior Court sustains the verdict on one, and sets aside the verdict, and orders' a new trial on the other of two issues with respect to separable elements of damage for breach of contract submitted to and answered by the jury in favor of plaintiff in general county court, and the judgment of Superior Court is affirmed on appeal to Supreme Court, is the judgment
res judicata
of the matters to which the issue, on which the verdict is sustained, relates?
2. Where plaintiff, who has contract of employment for a period of five years at compensation payable in installments, institutes an action for the recovery of damages for breach of such contract before the expiration of the period of time covered thereby, is the recovery limited to damages to date of institution of action?
We are of opinion and hold that these questions are properly answered in the affirmative.
1. The first question, predicated upon a group of assignments of error, is succinctly raised by the ruling of the judge of Superior Court in sustaining exception by defendant to the refusal of general county court to instruct the jury, as requested, “that in considering what damages, if any, the plaintiff is entitled to, it will not take into consideration any damages for board and lodging for the plaintiff and her two daughters for the reason that it has heretofore been determined in this action by a jury verdict, that the plaintiff was not entitled to recover therefor.”
This request for instruction is based upon the judgment of the Superior Court sustaining the verdict on the fourth issue in former appeal from the general county court.
The Superior Court, as it relates to this action, is a court of appellate jurisdiction of all appeals from the general county court for errors assigned in matters of law only, and may either affirm or modify the judgment of the general county court or remand the cause for a new trial. From the judgment of the Superior Court an appeal may be taken to the Supreme Court, as is provided by law. Public Laws 1923, ch. 216, sec. 18, incorporated in Michie’s Code of 1935, as sec. 1608 (cc), as amended by Public Laws 1933, ch. 109. See
Jenkins v. Castelloe,
208 N. C., 406, 181 S. E., 266;
Smith v. Winston-Salem,
189 N. C., 178, 126 S. E., 514;
Davis v. Wallace,
190 N. C., 543, 130 S. E., 176.
“A decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal;”- — headnote epitomizing decision in
Harrington v. Rawls,
136 N. C., 65, 48 S. E., 57, cited in numerous decisions of this Court, among which are these:
Nobles v. Davenport,
185 N. C., 162, 116 S. E., 407;
Ray v. Veneer Co.,
188 N. C., 414, 124 S. E., 756;
Strunks v. R. R.,
188 N. C., 567, 125 S. E., 182;
Davis v. Lumber Co.,
190 N. C., 873, 130 S. E., 156;
Mfg. Co. v. Hodgins,
192 N. C., 577, 135 S. E., 466;
Moses v. Morganton,
195 N. C., 92, 141 S. E., 484;
Mayo v. Comrs.,
196 N. C., 15, 144 S. E., 925;
Ingle v. Green,
199 N. C., 149, 154 S. E., 83;
S. c.,
202 N. C., 116, 162 S. E., 476;
Masten v. Texas Co.,
204 N. C., 569, 169 S. E., 142;
Power Co. v. Yount,
208 N. C., 182, 179 S. E., 804;
Betts v. Jones,
208 N. C., 410, 181 S. E., 334;
Ferrell v. Ins. Co.,
208 N. C., 420, 181 S. E., 327;
Groome v. Statesville,
208 N. C., 815, 182 S. E., 657;
Dixson v. Realty Co.,
209 N. C., 354, 183 S. E., 382;
McGraw v. R. R.,
209 N. C., 432, 184 S. E., 31;
Stanback v. Haywood,
213 N. C., 535, 196 S. E., 844.
If on the first trial in the present action plaintiff considered that her rights would be prejudiced by the submission of a separate issue with respect to her claim for damages for board for herself and two children, she should have objected and preserved exception to the submission of it and appealed. But having failed to so object and appeal, if there were error in the judgment of the Superior Court in sustaining the verdict on the fourth issue, the remedy then opened to plaintiff was by exception and appeal to the Supreme Court. Then, if there were error in the decision of the Supreme Court, the remedy was solely by application for a rehearing to correct such error. Failing in or to do this, the judgment is
res judicata
.and binding in subsequent proceedings in the trial court and on subsequent appeals.
Reference, however, to the record and to brief of plaintiff on the former appeal reveals that while exception is taken to the judgment, it is referred to as formal, and the ruling of the judge below in sustaining the verdict on the fourth issue is not pressed for error.
2. The second question, likewise founded upon series of assignments of error, is raised in summary by the rulings of the judge of Superior Court in sustaining defendant’s exceptions to the refusal of the general county court to instruct the jury as requested in these two special instructions: (a) “That when the plaintiff and defendant entered into the contract as set out in the complaint that they agreed upon what amount the plaintiff should receive for her services or her work in connection with said business, so the court charges the jury that in considering the question of damages it cannot allow anything in excess of 3 %% on the gross receipts which were received in said business, or which would have been received had the plaintiff and defendant continued to operate under the contract as originally entered into, up to and including July 8, 1937, the date on which this action was instituted;” and further, (b) “that the value of the contract to the plaintiff was the sum that she could reasonably expect to obtain from it after the contract was entered into, and the jury cannot, in passing upon any damage, take into consideration any values which it may be contended that the contract had outside of those specified in the contract itself, to wit: 3^2% on the gross receipts prior to July 8, 1937.”
With respect to the question here presented, plaintiff contends that the contract is for the entire five-year period of the lease in question, and that she is not limited in her recovery to the percentage due her under the contract to the date of the institution of the action. On the other hand, the defendant contends that the contract is one of employment and, while it may be entire, the services are to be paid for by installments at stated intervals, and the plaintiff, having elected to sue before the expiration of the life of the contract, is limited in her recovery of damages to the time of the bringing of the suit.
In. accepting the latter view, the court seems to have followed well established law in this State. In
Smith v. Lumber Co.,
142 N. C., 26, 54 S. E., 788, the Court said: “When the contract is entire and the services are to be paid for by installments at stated intervals, the servant or employee who is wrongfully discharged has the election of four remedies : (1) He may treat the contract as rescinded by the breach, and sue immediately on a
quantum meruit
for the services performed; but in this case he can recover only for the time he actually served. (2) He may sue at once for the breach, in which case he can recover only his damages to the time of bringing suit. (3) He may treat the contract as existing and sue at each period of payment for the salary then due.
(We do not consider tbe right to proper deduction in this case, as it is not now presented.) (4) He may wait until tbe end of tbe contract period, and tben sue for tbe breach, and tbe measure of damages will be
prima facie
tbe salary for tbe portion of tbe term unexpired when be was discharged, to be diminished by such sum as be has actually earned or might have earned by a reasonable effort to obtain other employment.”
In tbe present case plaintiff has elected to pursue tbe second remedy and is limited in recovery of damages to date of institution of tbe action.
We have carefully reviewed and considered all other exceptions assigned as error in tbe record on this appeal, and find no cause to disturb tbe judgment of tbe Superior Court from which tbe appeal is taken.
Affirmed.