Brand v. Ogden-Howard Co.
| Decision Date | 11 October 1920 |
| Citation | 31 Del. 88,111 A. 370 |
| Court | Delaware Superior Court |
| Parties | JOHN H. BRAND v. THE OGDEN-HOWARD COMPANY, a corporation of the State of Delaware |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Superior Court for New Castle County, March Term, 1920.
COVENANT No. 67, March Term, 1919.
ACTION by John H. Brand against The Odgen-Howard Company to recover damages for breach of an employment contract. Verdict directed for defendant, and plaintiff's motion for new trial was heard by the court in banc. New trial denied.
See also, 7 Boyce, 428, 108 A. 277.
On February 1, 1914, the plaintiff was employed by the defendant as its buyer and manager, until January 1, 1919, at a salary of $ 100 a week, payable weekly. The contract between them was in writing under seal, with a provision for its termination by either party before the expiration thereof, by giving to the other party six month's prior written notice. Without such notice, the defendant, February 27, 1918, discharged the plaintiff, who thereafter performed no services for the defendant, although ready and willing to do so until April 1st following.
In due course, on April 1, 1918, judgment was rendered and entered, as follows:
The plaintiff took an appeal to the Superior Court, for New Castle County, it being No. 89 May term, 1918, and filed a pro-narr in debt, declaring upon the same contract declared upon in the present action of covenant, being No. 67, March term, 1919. The pleas in that action were nil debit, set-off, and a special plea, which on demurrer was stricken from the files, on the ground that the defense set up in the plea could be proven under the general issue. Reps. and issues were entered. Afterwards, on February 4, 1919, defendant confessed judgment in the cause for the sum of $ 100, the amount demanded, which judgment was, on February 21, 1919, paid to and satisfied by the plaintiff.
Seven other actions in debt of a like nature, and for a like sum, were brought before the justice by the plaintiff against the defendant. A judgment was given for the plaintiff in each case, from which appeals were taken to the Superior Court by the defendant, and in the ordinary course, all were tried together, resulting in verdicts for the plaintiff in five of them, for the sum of $ 100 each. From the judgments entered, the defendant sued out writs of error. The Supreme Court reversed each of them, holding that there was but one contract between the parties, and that the discharge of the plaintiff was a single act constituting but one breach, and damages for such a breach can be recovered in but one action; that damages for such a breach are unliquidated, and are not recoverable in action of debt. The pro-narr in debt in each of these cases, and the pleas of the defendant, were identical with the pro-narr, and pleas in the first case on appeal, in which judgment was confessed.
In the meantime, March 17, 1919, the plaintiff brought the present action against the defendant in the Superior Court. The narr filed is in covenant, for the recovery of damages from February 27, 1918, for the breach of the contract. The defendant interposed a plea of former recovery, setting up the judgment recovered in the first action on appeal. This plea was traversed by the plaintiff, it being averred in the replication that the suit referred to in said plea, and docketed in the Superior Court as No. 89, May term, 1918, was and is not the same cause of action as that alleged in the declaration filed herein, in that the cause of action declared upon in said suit, No. 89, May term, 1918, was an action in debt for a liquidated sum due and owing to the plaintiff as salary, for the week wherein he was wrongfully discharged, and not one for unliquidated damages, resulting from the breach of covenant declared upon in this action.
The cause came on for trial, and after plaintiff had introduced his facts, and rested, the defendant offered in evidence the record of the pleadings and judgment of the first action on appeal. The record was admitted in evidence over the objection of plaintiff's counsel, on the ground that the former cause of action was an action in debt for wages accrued, and that this is an action in covenant for damages arising from the breach of the contract for the wrongful discharge of the plaintiff. A motion to strike out the record evidence was denied. Without offering further testimony, counsel for defendant moved for a directed verdict in favor of the defendant, contending, that the record shows a former recovery in the same cause of action before the court. After argument, covered by the arguments of counsel hereinafter stated, the court instructed the jury to render a verdict for the defendant. Counsel for plaintiff took an exception, and also moved for a new trial. Briefly, the reasons filed for a new trial are: The court erred (1) in admitting into evidence the judgment and record of a certain cause, being No. 89, at the May term, 1918; (2) in its refusal to strike from the record the said judgment and record of the said cause; (3) in its instructions to the jury to render a verdict for the defendant.
Upon application of the parties, the Superior Court directed that the motion for new trial and the reasons therefor be heard by the court in banc.
Argued before PENNEWILL, Chief Justice, and BOYCE, CONRAD, RICE, and HEISEL, Associate Judges.
ARGUMENT FOR PLAINTIFF.
A cause of action for a breach of the contract of employment is independent of, and distinct from, the cause of action for wages already earned. Perry v. Dickerson, 85 N.Y 345, 39 Am. Rep. 663.
An action for damages for the breach of a contract of services is not barred by the former recovery of wages due to the time of discharge. Thompson v. Wood, 1 Hilt. (N. Y.) 93.
The last week during which plaintiff rendered services to the defendant began on February 25, and ended on March 2, 1918. He was discharged February 27th. There was, therefore, due him as wages the sum of $ 50 for one-half of the week. When suit was begun in the justice's court, there existed two distinct and independent causes of action, one in debt for wages, and another in covenant for breach of the contract of employment. There is nothing to show that the right of the plaintiff to recover damages for breach of the covenant was ever raised, or tried in the justice's court, or what the justice took into consideration, in arriving at the judgment entered, except that the defendant pleaded a set-off, and was given judgment for the sum of $ 80.97. On the appeal to the Superior Court there was nothing to indicate upon what issues the judgment was confessed for plaintiff, which is pleaded in bar of this action.
The pro-narr of the plaintiff on the appeal was in debt. The pro-narr is not clear, in that it may be said that the first count is in covenant, but the second count is in debt and alleges:
"That the defendant below, respondent, has not paid * * * to the said plaintiff below, appellant, the sum of $ 100 due and owing by it, the said defendant below, respondent, to him, the said plaintiff below, appellant, for the week ending on the 2d day of March A. D. 1918," etc.
The natural inference is that the action was treated as a plain action in debt. Had it been contended to the court that the first count was in covenant, the court would then have been bound to hold that a count in covenant could not be joined with a count in debt. It must be assumed that this question was never determined in the action on appeal.
In the other seven cases, on appeal from the justice, in which the pleadings were identical with those in the former case pleaded in bar, the question suggested was raised, and its final determination in the Supreme Court was that unliquidated damages could not be recovered in an action of debt. If this question had been raised in the former case, and determined by the Superior Court as it was afterward determined, adversely to the plaintiff, by the Supreme Court in the other cases, the special plea, interposed in this action, would be no bar.
It nowhere on the face of the record in the former action on appeal appears that the question of the right of the plaintiff to recover damages for defendant's breach of covenant was ever raised or determined, nor was there any evidence in the trial of the case, now before the court on motion for new trial, to show that the question was actually litigated in the former action. It does appear, however, from the pleadings in the former action, that this question might have been litigated had judgment not been confessed.
The rule is well stated by Judge Sanborn, in Harrison v. Remington Paper Co., 140 F. 385, 400, 72 C. C. A. 405, 420, (3 L. R. A. [N. S.] 954, 5 Ann. Cas. 314):
"Where the record is such that there is or may be a material issue question, or matter in the second suit upon a different cause of action, which may not have been raised, litigated, and decided in the former action, the judgment therein does not constitute an estoppel from litigating this issue, question, or matter, unless by pleading or proof the party asserting the...
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