Griffith, J.,
delivered the opinion of the court.
On August 13, 1931, appellee filed his declaration against appellant alleging that on May 4, 1929, appellant had made a contract with him by which he was employed by appellant at a salary of four dollars and fifty cents per day, straight time for every day, except Sunday, payable weekly; said employment to continue during the period of the operation of the planing mill of appellant at College Hill Switch, in Lafayette county. That appellee entered upon the performance of his contract and so continued until January 14, 1931, when he was wrongfully discharged by appellant. That appellant had not paid him the wages due him from September 1, 1930, to January 14, 1931, nor from January 14, 1931, to the date of tire filing of his suit, and he sued for the total sum of one thousand three hundred seventy-seven dollars, alleged to be the aggregate amount due him for the two periods aforesaid.
To that action appellant filed its plea of the general issue, and a notice that although appellee was employed by appellant by the day at a stipulated amount, the terms of the employment were not as alleged by appellee in his declaration, and that under the said agreement appellant had a right to terminate the employment whenever appellant saw proper, and that appellant had exercised that right, and that appellant had paid appellee in full for every day’s work done by him under the contract. The case was tried at the November, 1931, term of the circuit court,' resulting in a verdict and judgment for appellee for one hundred seventeen dollars; and no' appeal therefrom was taken, but the judgment was paid by appellant.
Subsequently, and on February 13, 1932, appellee filed
another declaration against appellant, declaring upon the same contract and demanding recovery against appellant for the period subsequent to that covered by the first declaration, that is to say, from August 12, 1931, to February 12, 1932. To that action appellant filed a plea of res adjudicata averring that the judgment in the first case was a complete estoppel of any further suits growing out of the alleged contract between the parties. This plea was sustained by the trial court, and the second suit was dismissed, whereupon appellee appealed to this court, with the result that it was held here in Thorne v. True-Hixon Lbr. Co., 167 Miss. 266, 148 So. 388, that the first suit was not res adjudicata of the second, and the judgment was reversed.
Soon after the above-mentioned decision in this court, appellee filed a third declaration against appellant, declaring upon the same contract and demanding recovery against appellant for the period subsequent to that covered by the second declaration, that is toi say, from February 12, 1932, to June 24, 1933. When the November, 1933, term of the circuit court came on, the two last-mentioned cases were consolidated, and in the trial thereof appellee took the position that the opinion of this court in Thorne -v. True-Hixon Lbr. Co., supra, was such by its terms as to compel the trial court to the conclusion that the verdict and judgment in the first case between the parties was res adjudicata upon the issue that a contract existed, and had continued to exist, between them as alleged by appellee in his several declarations, and that the only issue remaining to be tried was the amount due appellee upon the installments sued for in his second and third declarations. The trial court acceded to' that view, granted a peremptory instruction in behalf of appellee, and a judgment was rendered for two thousand seven hundred seven dollars and twenty-one cents.
In resisting the contention of appellee, last above
stated, appellant succeeded in getting into the record of the last trial the complete record of the first trial, including a full transcript of the evidence, so that upon the present appeal there is now before this court, for the first time, a complete record of all that was said and done in the first trial; and, upon the examination of that record of the first trial, Division B of this Court held in its opinion delivered on May 28, 1934, reported 155’ So. 181, that the verdict and judgment in the first trial were not in conformity or responsive to the issues presented therein, but was a variance therefrom, and therefore was' not res adjudicata so far as any second or third suit was concerned, and reversed the last judgment.
Thereupon appellee filed his suggestion of error insisting that the opinion was in conflict with that in 167 Miss. 266; 148 So. 388, and was in contravention of the law of the case. In response to that insistence, the judgment of reversal entered by Division B was set aside, and the cause remanded to the court in banc.
An extended reconsideration of the entire record discloses that there were three principal issues tendered by the pleadings and the evidence on the first trial: First, whether appellee had a contract for four dollars and fifty cents per day, straight time, so long as appellant continued to operate its mill at the stated place, and this in turn is divisible into two issues: (a) Whether appellant had paid everything due under that contract so stated from September 1, 1930, to January 14, 1931; and (b) whether and for what amount appellee was chargeable for what he earned or could have earned at other similar employment from January 14, 1931, to August 12, 1931. Second, whether the contract or agreement was as contended for by appellant, that appellee was to be paid only for the days he'actually worked, and that the employer had the right to terminate the services at any time desired by it; and this issue, in turn, is divisible into two issues; (c) whether the pay for the
days served was to be- at four dollars and fifty cents per day or at that rate less two> dollars per week for house rent, claimed by the employer; and (d) whether all the days actually worked were actually paid for. Third, whether the rate of pay was. to be four dollars and fifty cents per day, straight time, with the privilege nevertheless to the employer to> dispense with the services at ‘any time desired by it.
Taking up these issues, the evidence shows, without dispute, that there was paid to appellee for the period from September 1, 1930', to January 14, 1931, the aggregate sum of three hundred twenty dollars and eighteen cents. If his contention were true that he was to be paid four dollars and fifty cents per day, straight time, his pay for that period would have amounted to- five hundred twenty-two dollars, and if we deduct therefrom the sixteen days that appellee admits he was in the ¡hospital, or seventy-two' dollars, there would yet have been due him four hundred fifty dollars. He was paid three hundred twenty dollars, which leaves a balance of one hundred thirty dollars. The verdict and judgment was for one hundred seventeen dollars. But if his contention was further true that his contract was to last as long as appellant operated its mill at that place, there would be due him from January 14,1931, to August 12,1931, the further sum of approximately eight hundred twenty dollars. Against this and for the same period of time, the evidence shows, without dispute, that he had been able to obtain other employment only from May 13, 1931, to August 12, 1931, at one dollar per day, including Sundays, or approximately ninety days.
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Griffith, J.,
delivered the opinion of the court.
On August 13, 1931, appellee filed his declaration against appellant alleging that on May 4, 1929, appellant had made a contract with him by which he was employed by appellant at a salary of four dollars and fifty cents per day, straight time for every day, except Sunday, payable weekly; said employment to continue during the period of the operation of the planing mill of appellant at College Hill Switch, in Lafayette county. That appellee entered upon the performance of his contract and so continued until January 14, 1931, when he was wrongfully discharged by appellant. That appellant had not paid him the wages due him from September 1, 1930, to January 14, 1931, nor from January 14, 1931, to the date of tire filing of his suit, and he sued for the total sum of one thousand three hundred seventy-seven dollars, alleged to be the aggregate amount due him for the two periods aforesaid.
To that action appellant filed its plea of the general issue, and a notice that although appellee was employed by appellant by the day at a stipulated amount, the terms of the employment were not as alleged by appellee in his declaration, and that under the said agreement appellant had a right to terminate the employment whenever appellant saw proper, and that appellant had exercised that right, and that appellant had paid appellee in full for every day’s work done by him under the contract. The case was tried at the November, 1931, term of the circuit court,' resulting in a verdict and judgment for appellee for one hundred seventeen dollars; and no' appeal therefrom was taken, but the judgment was paid by appellant.
Subsequently, and on February 13, 1932, appellee filed
another declaration against appellant, declaring upon the same contract and demanding recovery against appellant for the period subsequent to that covered by the first declaration, that is to say, from August 12, 1931, to February 12, 1932. To that action appellant filed a plea of res adjudicata averring that the judgment in the first case was a complete estoppel of any further suits growing out of the alleged contract between the parties. This plea was sustained by the trial court, and the second suit was dismissed, whereupon appellee appealed to this court, with the result that it was held here in Thorne v. True-Hixon Lbr. Co., 167 Miss. 266, 148 So. 388, that the first suit was not res adjudicata of the second, and the judgment was reversed.
Soon after the above-mentioned decision in this court, appellee filed a third declaration against appellant, declaring upon the same contract and demanding recovery against appellant for the period subsequent to that covered by the second declaration, that is toi say, from February 12, 1932, to June 24, 1933. When the November, 1933, term of the circuit court came on, the two last-mentioned cases were consolidated, and in the trial thereof appellee took the position that the opinion of this court in Thorne -v. True-Hixon Lbr. Co., supra, was such by its terms as to compel the trial court to the conclusion that the verdict and judgment in the first case between the parties was res adjudicata upon the issue that a contract existed, and had continued to exist, between them as alleged by appellee in his several declarations, and that the only issue remaining to be tried was the amount due appellee upon the installments sued for in his second and third declarations. The trial court acceded to' that view, granted a peremptory instruction in behalf of appellee, and a judgment was rendered for two thousand seven hundred seven dollars and twenty-one cents.
In resisting the contention of appellee, last above
stated, appellant succeeded in getting into the record of the last trial the complete record of the first trial, including a full transcript of the evidence, so that upon the present appeal there is now before this court, for the first time, a complete record of all that was said and done in the first trial; and, upon the examination of that record of the first trial, Division B of this Court held in its opinion delivered on May 28, 1934, reported 155’ So. 181, that the verdict and judgment in the first trial were not in conformity or responsive to the issues presented therein, but was a variance therefrom, and therefore was' not res adjudicata so far as any second or third suit was concerned, and reversed the last judgment.
Thereupon appellee filed his suggestion of error insisting that the opinion was in conflict with that in 167 Miss. 266; 148 So. 388, and was in contravention of the law of the case. In response to that insistence, the judgment of reversal entered by Division B was set aside, and the cause remanded to the court in banc.
An extended reconsideration of the entire record discloses that there were three principal issues tendered by the pleadings and the evidence on the first trial: First, whether appellee had a contract for four dollars and fifty cents per day, straight time, so long as appellant continued to operate its mill at the stated place, and this in turn is divisible into two issues: (a) Whether appellant had paid everything due under that contract so stated from September 1, 1930, to January 14, 1931; and (b) whether and for what amount appellee was chargeable for what he earned or could have earned at other similar employment from January 14, 1931, to August 12, 1931. Second, whether the contract or agreement was as contended for by appellant, that appellee was to be paid only for the days he'actually worked, and that the employer had the right to terminate the services at any time desired by it; and this issue, in turn, is divisible into two issues; (c) whether the pay for the
days served was to be- at four dollars and fifty cents per day or at that rate less two> dollars per week for house rent, claimed by the employer; and (d) whether all the days actually worked were actually paid for. Third, whether the rate of pay was. to be four dollars and fifty cents per day, straight time, with the privilege nevertheless to the employer to> dispense with the services at ‘any time desired by it.
Taking up these issues, the evidence shows, without dispute, that there was paid to appellee for the period from September 1, 1930', to January 14, 1931, the aggregate sum of three hundred twenty dollars and eighteen cents. If his contention were true that he was to be paid four dollars and fifty cents per day, straight time, his pay for that period would have amounted to- five hundred twenty-two dollars, and if we deduct therefrom the sixteen days that appellee admits he was in the ¡hospital, or seventy-two' dollars, there would yet have been due him four hundred fifty dollars. He was paid three hundred twenty dollars, which leaves a balance of one hundred thirty dollars. The verdict and judgment was for one hundred seventeen dollars. But if his contention was further true that his contract was to last as long as appellant operated its mill at that place, there would be due him from January 14,1931, to August 12,1931, the further sum of approximately eight hundred twenty dollars. Against this and for the same period of time, the evidence shows, without dispute, that he had been able to obtain other employment only from May 13, 1931, to August 12, 1931, at one dollar per day, including Sundays, or approximately ninety days. Deducting this ninety dollars from eight hundred twenty dollars would leave due him, for the period last aforesaid, according to his contention, seven hundred thirty dollars. Does a verdict of one hundred seventeen dollars respond to that contention?
It is said, however, that the verdict and judgment were
in any event, and necessarily, an adjudication that there was a contract of employment between appellant and appellee. Conceding, for the sake of the argument, that this is true, the questions yet remain as to what kind of contract it was, what were its terms, and particularly what were its provisions as to when and how it should be terminated. It is elemental that a jury, in weighing the evidence, in reconciling its conflicts, in considering the reasonableness of the various features thereof in the light of all the surrounding circumstances and conditions, is not bound to accept in its entirety the evidence for either side, but may believe and accept, in part, the evidence in behalf of plaintiff and, in part, that for the defendant, and make up their verdict as a composite of the evidence for both sides. In consequence, so far as we can tell from this record, the jury may have believed and accepted the evidence of appellee that the contract was for four dollars and fifty cents per day, straight time, so long as he remained in the employment, and at the same time may have believed and accepted the evidence of appellant that appellant had the right to terminate the employment at any time it desired.
We have thus developed the fact that it cannot be said with any dependable certainty upon which of the several issues and admixtures of issues in the first case the jury returned its verdict for one hundred seventeen dollars; which brings into application the well-settled rule that where a party to a former suit relies upon the judgment in that suit as being conclusive upon an issue in a subsequent suit between the same parties, the party so asserting must show that it is certain that the precise issue of fact, so relied on, was actually determined in his favor in the former suit; and the rule is, further, that a judgment which may have resulted from a determination of either out of two or more separate issues does not constitute an adjudication as to any of them, unless it is made clearly to appear from
the record in the former case that the particular issue as to which the rule of res adjudicata is invoked was, in fact, actually and undoubtedly adjudicated in the former action. DeSollar v. Hanscome, 158 U. S. 216, 15 S. Ct. 816, 39 L. Ed. 956, 959; Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; 15 R. C. L., p. 980; 34 C. J., pp. 1072-1075. Our court is definitely committed to this doctrine by Greene v. Merchants’ & Planters’ Bank, 73 Miss. 542, 550, 19 So. 350, 352, where it is said: “The verdict proves nothing more than that the jury found for the defendant on one or the other issues; but on which one we do not know. Under such circumstances the rule is that the whole matter remains at large, and there is no estoppel.” The conclusion is inescapable, therefore, that the verdict and judgment in the former suit is not res adjudicata in subsequent suits of the issue relied on here by appellee, to-wit: That he had a contract for four dollars and fifty cents per day, straight time, „and that this contract was not terminable by appellant so long as it continued to operate its mill.
But it is argued that we are now precluded from the above-stated conclusion by the language of this court in the former appeal, Thorne v. Lumber Co., 167 Miss. 266, 148 So. 388. That opinion holds, as we hold here, that the judgment in the first suit is not res adjudicata of subsequent suits. We have examined the record as it existed before the court when that opinion was rendered. Neither the pleading’s nor the evidence in the first suit was made a part of the record in Thorne v. Lumber Co., supra. There was in that latter case nothing before this court of the facts of the first suit, except the verdict and judgment therein and the further bare fact that the two suits were between the same parties and involved the same general subject-matter.
The positive authority of any opinion of an appellate court is coextensive only on the facts on which it is founded. 15 C. J. 941. As tersely said in Pass v. McRea,
36 Miss. 143, 148, “it has become a settled rule that all adjudications are to be considered only in connection with, and as explained by, -and limited to, the state of circumstances appearing’ in the record.” And where on a second appeal an additional state of facts, materially pertinent to the decision on the second appeal, is shown of record, the former determination is not controlling’. 4 C. J. 1101, and the numerous authorities there cited. On a second appeal the court decides according to the record then before it, and not upon the record of a previous appeal. Gulf & Ship Island Railroad Co. v. Simmons, 153 Miss. 327, 337, 121 So. 144.
The parties to this litigation have all along well known that the record in the first appeal here was stripped bare of the actual facts in respect to the trial of the first case; and the record in that first appeal shows, further, that this court in a memorandum to counsel, dated July 28, 1933, while the suggestion of error therein was pending, called the attention of counsel to the fact “that the record seems not to disclose the exact issue that was tried in the case which resulted in the judgment here plead in bar of. plaintiff’s cause of action,” and the record shows also that, in response to that observation of the court, no effort was made by either side to clear up that omission in the record as it then existed.
We, therefore, overrule the suggestion of error; reinstate our former judgment of reversal; and remand the cause for a new trial. But because the other matters dealt with the opinion of Division B, delivered on May 28, 1934, have been by the parties befogged in their several contentions in respect to¡ the issue of res adjudieata, we withdraw that opinion in its entirety and leave all questions in the pending consolidated action, other than the one point dealt with herein, to be litigated between the parties as if nothing had ever been said about them here.
Suggestion of error overruled, and reversed and remanded.