Booge v. Pacific R.R.

• Decision Date: 31 October 1862
• Citation: 33 Mo. 212
• Parties: CHARLES P. BOOGE, Appellant, v. THE PACIFIC RAILROAD, Respondent.
• Court: Missouri Supreme Court

33 Mo. 212

CHARLES P. BOOGE, Appellant,

v.THE PACIFIC RAILROAD, Respondent.

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Louis Court of Common Pleas.

James C. Moody, for appellant.

I. The only question raised by the record is this: Did the former recovery by plaintiff of his wages for July and August bar this action? In other words, was the contract so entire a thing that plaintiff could bring separate suit for his wages at the end of each month, or would a recovery of one month's pay bar any other suit?

II. The breach of contract by defendant was the failure at the end of each month to pay plaintiff his wages, and he could have sued for each month at its expiration. Defendant's refusal to let him work was no breach of the contract for which he could sue. It was no injury to him. The breach was the non-payment of his wages, and each failure to pay was a separate breach, which gave plaintiff a right of action. Occurring, as these several breaches do, at different periods of time, plaintiff had a right to sue on each as it occurred, and any former recovery for a different breach would have been no bar. I can see no difference in principle between this and a contract for monthly rent. A tenant for a year under a written lease at $125 per month, payable monthly, quits at the end of the first month, and pays his rent for that month. The premises stand idle for the rest of the year. If the ruling of the court below is correct, the landlord cannot sue him until the end of the year; or, if he does, and recover the second month's rent, that will bar any action for the other ten months' rent after the year has expired.

III. The instruction given by the court was erroneous; the one asked for by the plaintiff ought to have been given, and the finding and judgment of the court ought to have been for plaintiff for $375. The judgment ought therefore to be reversed.

Whittelsey, for respondent.

I. Plaintiff can have but one action for the same breach of contract, and in that suit he can recover all the damages to which he is entitled up to the day of trial.

The whole doctrine in relation to causes of action arising from breach of contract will be found condensed in the case of Cutter v. Powell, 2 Smith's L. C. 17, 36, Am. ed. 1852, and notes; p. 36, discusses the English cases for discharge from service; and see pp. 40, 41, Am. N.; 15 Mo. 175; Dare v. Pacific R. R. 31 Mo. 480; Pond v. Wyman, 15 Mo. 175; Ream v. Watkins, 27 Mo. 516.

The principle laid down seems to be this: that if plaintiff sues for breach of contract for services before the time of service expired, he is limited to the damage sustained up to the time of trial, although one or two cases in England have allowed the plaintiff to recover damages as if he had served the whole time.

Plaintiff claims that he may sue for damages and divide his cause of action in the same manner as if he had actually served month by month.

The former judgment for the same cause of action is a bar to the present action.

For effect and character of a judgment as a bar, see Doe v. Oliver et al., 2 Smith's L. C., Am. ed. 503, 572, 574; McKnight v. Taylor, 1 Mo. 282; Edgell v. Sigerson, 26 Mo. 583.

III. The plaintiff is really splitting up his demand, and bringing several suits for the same cause of action, which is erroneous. (Wagner v. Jacoby, 26 Mo. 532.)

BAY, Judge, delivered the opinion of the court.

This is a suit upon a contract for hire. The petition states that on the 15th of March, 1858, the defendant employed the plaintiff as a runner or solicitor for freight and passengers from that time until the close of navigation on the Missouri river, at the price of $125 per month, payable monthly; that on that day plaintiff entered upon such service and continued to serve defendant in that capacity until the 19th of June following, when defendant, without cause, discharged him, and refused to permit him to perform said contract, which he was at all times willing and ready to do, and offered to do. The petition further states that the navigation on the Missouri river did not close until December, 1858, and that there is due and owing him $375 for his wages under said contract for the months of September, October and November.

The answer of defendant admits the employment, and at the price stated, but denies that it was for any stipulated period of time, but only for such time as defendant might require his services; and that defendant had fully paid him for his services up to the time of his discharge.

Defendant sets up as a further defence a former recovery for a breach of the same contract.

The cause was tried by the court...