Dalton v. American Ammonia Co.

• Decision Date: 27 May 1920
• Parties: DALTON v. AMERICAN AMMONIA CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 105

127 N.E. 504

DALTON

v.AMERICAN AMMONIA CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1920.

Exceptions from Superior Court, Suffolk County; Quinn, Judge.

Action by John J. Dalton against the American Ammonia Company, with trustee. Verdict for plaintiff, and defendant excepts. Exceptions overruled. Order overruling plea affirmed.

Defendant's tenth request for ruling and instruction, relative to revocation of plaintiff employé's discharge by defendant, referred to in the last paragraph of the opinion, was as follows:

(10) That, if the jury shall find that the plaintiff was discharged, that the defendant had the right to retract that discharge, and if the defendant did retract that discharge before the time that any circumstances had arisen which changed the position of the parties, no recovery can be had in this action, because, upon the evidence in the case, it has not been shown that the plaintiff was ready and willing to perform his part of the contract or made any tender of the performance of the contract on his part.

John J. Walsh and John F. Lynch, both of Boston, for plaintiff.

Elbridge R. Anderson and Thomas J. Casey, both of Boston, for defendant.

CARROLL, J.

This is an action of contract to recover damages for breach of a written agreement to employ the plaintiff as a salesman from September 15, 1913, to September 15, 1914, at a weekly salary of $50, and further compensation, payable at the end of the term, of 250 shares of the capital stock of the defendant corporation at its par value of $10 a share. The writ is dated June 8, 1914. There was evidence that the defendant discharged the plaintiff April 11, 1914. April 13 the plaintiff brought an action in the municipal court of the city of Boston on an account annexed-item 1 being for salary for the week ending April 11, item 2 for salary to April 18, and item 3 salary to April 25 and expenses from March 14 to April 11. The court found there was due the plaintiff the sum of $50 for salary to April 11, 1914, and $45.78 for expenses. Judgment was entered in the sum of $98.78. Execution issued and was returned to court, satisfied in full. At the trial the record of the former action was introduced in evidence by the plaintiff.

The defendant filed a plea to dismiss this action because of the former proceedings. At the hearing on the plea evidence was presented which is not reported; the plea was overruled. The plaintiff recovered a verdict of $4,365.40. In Dalton v. American Ammonia Co., 231 Mass. 430, 121 N. E. 407, when the same parties were before this court, it was decided that the judgment of the municipal court of the city of Boston was conclusive that the defendant had broken the contract and had wrongfully discharged the plaintiff. The defendant now contends that as the plaintiff has elected by this action in the municipal court to treat the contract as rescinded and has recovered the value of the services actually performed, he cannot pursue an inconsistent remedy and recover damages for the breach, based on the affirmation of the contract.

There is no doubt of the general principle of law that the plaintiff had an election of remedies; and if he chose to treat the contract as ended or rescinded and recovered the value of the work and labor done he could not thereafter consider it as subsisting and recover damages for its breach. Such an action would be inconsistent with his former action, and he must accept the consequences of his assent to the repudiation of the contract by the defendant. Mullaly v. Austin, 97 Mass. 30;Daley v. People's Building, Loan & Saving Ass'n, 178 Mass. 13, 17, 59 N. E. 452;Brown v. Woodbury, 183 Mass. 279, 67 N. E. 327;Holman v. Updike, 208 Mass. 466, 471, 94 N. E. 689;Pye v. Perry, 217 Mass. 68, 70, 104 N. E. 460;Bullard v. Eames, 219 Mass. 49, 53, 106 N. E. 584; Goodman v. Pocock, 15 Q. B. 576. Unquestionably the plaintiff could, upon the defendant's breach, have elected to consider the contract ended and have sued upon a quantum meruit for the value of his services, and such an election would have precluded him from pursuing a contradictory remedy based on the affirmation of the contract. Mullaly v. Austin, supra.

The action of debt is abolished in this commonwealth (R. L. c. 173, § 1, cl. 1), and if the terms of a special contract have been fulfilled, so that nothing remains but a duty to pay money, the amount may be recovered under an account annexed (Hall v. Wood, 9 Gray, 60;Morse v. Sherman, 106 Mass. 430;Lovell v. Earle, 127 Mass. 546). By the practice in this commonwealth, recovery may be had on an account annexed where the common counts at common law would lie (Lowe v. Pimental, 115 Mass. 44); and if the defendant repudiates a special contract and unlawfully discharges a servant, the latter may recover upon an account annexed either for the price fixed in the contract or the reasonable worth of the services. Smith v. Proprietors of First Congregational Meetinghouse in Lowell, 8 Pick. 178;Van Deusen v. Blum, 18 Pick, 229, 29 Am. Dec. 582; Lowe v. Plimental, supra. When such a contract is broken by the defendant without the plaintiff's fault, and the latter, disaffirming the contract and considering it at an end, sues for the value of the services rendered upon a quantum meruit, he may recover the full value of his services independent of the contract price, as if the special agreement did not exist; and the contract price is important only as bearing on the true value of the services rendered. Fitzgerald v. Allen, 128 Mass. 232;Connolly v. Sullivan, 173 Mass. 1, 53 N. E. 143;Brown v. Woodbury, 183 Mass. 279, 67 N. E. 327;Posner v. Seder, 184 Mass. 331, 68 N. E. 335.

The plaintiff recovered in the municipal court upon an account annexed for the expenses and the installments of salary due under the contract. He did not elect by this action to consider the contract as terminated, he relied on it and considered it still in force. He did not in the former action seek to recover for the value of the services independent of the contract price; he recovered the wages due him as wages, or salary, according to the stipulation of the contract; and the action was not inconsistent with the position he now takes in claiming that the contract is still subsisting and that he is entitled to damages for its breach.

‘The defense of waiver by election arises where the remedies are inconsistent; as where one action is founded on an affirmance, and the other upon the disaffirmance of a voidable contract, or sale of property. In such cases any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties, once for all.’ Connihan v. Thompson, 111 Mass. 270, 272.

The contract provided that the plaintiff was to receive a salary of $50 a week. He could have sued for this claim even if he continued in the employment of the defendant. The defendant on April 11 became his debtor for that amount, and his demand was not inconsistent with the one he now makes, based upon the refusal of the defendant to carry out the agreement to employ him. It follows that the former action of the plaintiff in enforcing payment of the fixed sum due by the terms of the special contract, is consistent with the position he now takes in claiming damages founded upon the defendant's breach of a valid existing contract, in violation of the plaintiff's rights. Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663;Williams v. Luckett, 77 Miss. 394, 26 South. 967. See Isaacs v. Davies, 68 Ga. 169;Allen v. Colliery Engineers' Co., 196 Pa. 512, 46 Atl. 899;Liddell v. Chidester, 84 Ala. 508, 4 South. 426,...