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Parry v. American Opera Co., 19 Abb. N. C., 269.

At the trial the defendant put in evidence the judgment roll 3 in the prior suit between the parties, the complaint therein showing that after his discharge he had tendered his services to defendant, which were refused; that he was unable to procure other employment, and demanding "judgment for the salary due and owing him for the said two weeks under said contract," etc.

The demand of the complaint in the present action was "for the damages so caused by the wrongful refusal to fulfill the said contract, and for all loss and injury resulting to him therefrom," etc.

Defendant's request to direct a verdict in its favor was refused, and thereupon plaintiff's motion for a direction in his favor was granted.

From the judgment entered upon the verdict, defendant appealed.

MCADAM, Ch. J. Services were actually rendered under the contract of employment until December 11, 1886, to which time salary was paid. The plaintiff was on that day discharged, by means of which he was prevented from rendering any further services under his contract.

The plaintiff's appropriate remedy under such circumstances. was an action for wrongful discharge, founded on the breach by the defendant (Moody v. Leverich, 4 Daly, 401, 408; Howard v. Daly, 61 N. Y., 362; s. c. 19 Am. R., 285), in which form of action he is entitled to recover for the loss or injury occasioned" up to the time of trial (Bruell v. Colell, 1 City Ct. R., 308; Everson v. Powers, 89 N. Y., 527).



The cause of action arose at the time of the wrongful discharge, and there can be but one recovery for the breach, 6 although the services (if they had been rendered) were to be paid for in weekly installments. One action is sufficiently comprehensive to embrace all the damages suffered, and the law will not permit the cause of action to be split up into parts so as to permit of a number of suits for substantially the same cause. The plaintiff herein recovered a judgment on the contract for the loss from December 11, 1886 (the day of the discharge), up till December 25, 1886. This recovery was founded on the breach

Parry v. American Opera Co., 19 Abb. N. C., 269.

7 because it was conceded by the printed case that no services whatever were rendered during this period. The judgment so recovered is a complete bar to any further recovery founded on the same breach, that is, the wrongful discharge (see cases before cited).


The request to direct a verdict for the defendant should have been granted. It was error to have directed a verdict for the plaintiff. For this error the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. BROWNE and HALL, JJ., concurred.

NOTE [from 1 Univ. Law Rev., 52.]-The right of a servant to recover for a breach of the contract of service is ably discussed in Olmstead v. Bach (Md., 1893), 27 Atl. Rep., 501. The court holds that a contract of hiring for a year is an entire contract, which is not rendered divisible by a subsidiary provision for weekly payments. The employee under such a contract, upon a wrongful discharge before the expiration of the year, has only two [independent] remedies at law. He may treat the contract as continuing and bring an action against the master for breaking it by discharging him, and this action lies whether his wages are paid up to the time of his discharge or not; or if his wages are not paid up to the time 9 of his discharge, he may treat the contract as rescinded, and sue his employer on a quantum meruit for the services actually rendered. When the servant's wages have been paid in full up to the time of his discharge, as in the case at bar, he has no option as to which of these remedies he may pursue. He is confined to an action for the recovery of damages which he has sustained by a breach of the contract; whether he brings his action immediately upon his discharge, or waits until the period of the contract has expired, his action is an action for a breach of the contract. The measure of damages will be the loss or injury occasioned by that breach, and one recovery on such claim, whether the damages be denominated loss of wages" or damages for breach" is a bar to a future recovery.



The rule is stated to be different where there has been no dismissal of the servant, and the only breach of the contract consists in the failure of the master to pay, when due, the wages or installments of wages actually earned. In such a case, the contract not having been broken by the dismissal of the servant, and he not having been prevented from performing his work, and the relation of master and servant still continuing, an action on the contract could be maintained to recover the salary or wages due for a past stated period. Recovery in such an action would not be a bar to a future recovery for a subsequent dismissal. But to hold that an action brought by the servant after dismissal, his wages having been paid in full until his dismissal, is an action for wages, and so not a bar to a future recovery for dismissal, would be to hold that the servant is en

Parry v. American Opera Co., 19 Abb. N. C., 269.

titled to recover for "constructive services," a doctrine repudiated in 11 England, where it had its origin, as well as in this country, and declared in Howard v. Daly, 61 N. Y., 362; s. c. 19 Am. R., 285, to be "so opposed to principle, so clearly hostile to the great mass of authority, that it cannot be accepted."

The same rule has been applied in New York, in Parry v. American Opera Co. (the case in the text), and in Ohio in James v. Allen County, 44 Ohio St., 226; s. c. 25 Am. L. Reg., 521, cases nearly parallel to Olmstead t. Bach.

The result of the authorities may be stated thus:

(1.) If before services have been rendered or wages earned under the contract, the employer discharges or refuses to receive the employee, the 12 latter cannot sue for wages, but his remedy is only for damages by breach of the contract.

Howard v. Daly, 61 N. Y., 362.

(2.) If after services have been rendered and paid for, the employer wrongfully dismisses the employee before any further services have beer. rendered, the remedy is the same, only an action for damages.

Olmstead v. Bach, supra.

Keedy v. Long, 71 Md., 392; 18 Atl. Rep., 704.

(3.) If, after services have been rendered which all remain unpaid for, the employer wrongfully discharges the employee, the latter may either, (a) treat the contract as rescinded and sue for the value of his services, which would not then be controlled by the limit of rate fixed by the 13 contract, for he would be entitled to recover a quantum meruit; or, (b) he may sue on the contract for wages for services actually rendered (in which case he is bound by the contract rate), and he may also bring a separate action, or join in the same action, his demand for damages for the wrongful discharge.

Olmstead v. Bach, supra.

Perry v. Dickerson, 85 N. Y., 345.

(4.) If, after services have been rendered, some of which have been paid for, and others remain unpaid for, there is a wrongful discharge, the remedy is to sue on the contract for those unpaid for, and to join in the same action, or bring a separate action for, the demand for damages for wrongful dismissal.

Perry v. Dickerson, 85 N. Y., 345.

The cause of action for wages under the contract, and that for wrongful dismissal are distinct (id.).

Recovery of damages for wrongful dismissal only, does not bar a subsequent action for wages previously earned under the contract by services actually rendered (id.).

But there can be but one recovery for damages for a wrongful dismissal; and all the damages up to the time of trial may be included.

Olmstead v. Bach, supra.

Parry v. American Opera Co. (in the text).




Bank of British North Am. v. Delafield, 126 N. Y., 410.


New York Court of Appeals, June, 1891.

[Reported in 126 N. Y., 410.]

1. It seems, that the rule that an action of a legal nature cannot be maintained by a portion of a firm against another member, for breach of contract or for wrongful act on the part of the latter until after a final accounting and balance struck between them, and an express promise to pay—does not preclude an action by a portion of the firm to recover a loan of firm money made to one member of it; for the law upon an ordinary simple loan even to a partner, implies a promise to pay it at the time stated or upon demand, without going into an accounting.

2. Even were it otherwise, if on the trial of the action the accounts are examined sufficiently to show that the defendant is indebted to the firm in a much larger sum than the loan sued for, the action can be maintained.

3. So held, even where the action was by an assignee of the demand, it not being claimed that a full accounting in which all the partners should be parties would show a different state of indebtedness.

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The allegations of the complaint were:

That on or about the month of December, 1887, the firm or co-partnership of Wm. T. Coleman & Co., of San Francisco, advanced and lent to the defendant at his request the sum of $25,000.

That on April 26, 1888, said sum had not been repaid by the defendant, and was then due and owing from the defendant to said firm, and on that day the said firm duly assigned and transferred said indebtedness to this plaintiff.

That on May 4, 1888, the plaintiff gave the defendant due notice of said assignment, and on that day duly demanded payment of said sum of $25,000 from the defendant, but no part thereof has been paid, and there is now due and owing from the defendant to the plaintiff the sum of $25,000, with interest from May 4, 1888.


Upon the trial it appeared that defendant (residing in New York) was a member of the California firm of Wm. T. Cole

Rank of British North Am. v. Delafield, 126 N. Y., 410.

man & Co. He requested of his firm leave to draw $25,000, but 3 the other partners refused; they however offered to lend him. Thereafter he drew a check in the firm name for that sum and deposited it to his own credit in his personal bank He now claimed that the transaction was not a loan, but was drawn by him as matter of right, on account.


At Circuit, plaintiff had a verdict.

The Supreme Court at General Term affirmed the judgment thereon. Defendant appealed to the Court of Appeals.

PECKHAM, J. Upon the question whether the money which the plaintiff seeks to recover was a loan to the defendant from the firm of which he was a member, or was money drawn by him under a claim of right from the firm treasury in New York, we think there was evidence to warrant finding that it was a loan, and was so received by the defendant.

The learned trial judge found that it was a loan. No time was specified for its repayment, and it became due upon demand.


The defendant claims that no action at law by a portion of a firm can be maintained in case of a breach of contract and of a 5 wrongful act by another member against such other member, unless upon an express promise to pay and after a final accounting and a balance struck. This may be true; but the case is one where the member sued has been guilty of a wrongful act, and a breach of his duty, and has, for instance, converted funds to his personal use by payment of his debts, which belonged to the firm. These are the general characteristics of the cases cited by the defendant's counsel.*

Here is a case, however, where a loan of money belonging to the firm had been made to one member of it, and the law, upon an ordinary simple loan, even to a partner, implies a promise to pay it at the time stated, or upon demand, without going into an accounting. The cases where an express promise to pay has been required were those where from the facts no implied promise to repay would be raised, excepting upon an accounting and a balance struck.

* See Payne v. Freer, 91 N. Y., 43; Richardson v. Bank of England, 4 Myl. I. & C., 165; Bouton v. Bouton, 40 How. Pr., 217.


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