Hippodrome Co. of Baltimore v. Lewis

Decision Date19 January 1917
Docket Number50.
Citation100 A. 78,130 Md. 154
CourtMaryland Court of Appeals

Appeal from Superior Court of Baltimore City; James M. Ambler Judge.

Action by Charles E. Lewis against the Hippodrome Company of Baltimore. From a judgment for plaintiff, defendant appeals. Affirmed.


H. H Dinneen, of Baltimore (W. Stuart Symington, Jr., of Baltimore, on the brief), for appellant.

J Edward Tyler, Jr., of Baltimore, for appellee.


The action in this case was brought to recover damages for the breach of a written contract, set out in the declaration entered into by the appellee and the appellant company. By it the defendant agreed to pay to the plaintiff a salary of $60 per week, payable weekly, for the period of two years from the date of the contract (December 1, 1914), as compensation for his services as manager of the Hippodrome Theater in the city of Baltimore. The plaintiff therein agreed in consideration of his salary to accept said employment "and to faithfully render said services as manager of said theater during the period" of the contract. The declaration alleges:

That the plaintiff "entered into the services of the defendant under said contract and performed his duties thereunder until the 3d day of July, 1915; that the said defendants broke said contract, in that they refused to permit him, the said plaintiff, to perform his part of said contract, and also refused to pay him the salary to which he is entitled under said contract from and after July 3, 1915;" and "that by reason of said breach of said contract he has been greatly injured and damaged in a large amount of money, to wit, $4,414.28."

The defenses relied on, as shown by the defendant's pleas, were:

That the "defendant discharged the plaintiff: First, because the conduct of the plaintiff as manager of said defendant's theater was such that it was injurious to the interest of said defendant to continue to employ him;" and, second, "because the plaintiff was incompetent and not qualified to manage the defendant's theater."

Both of these pleas were demurred to, but the demurrer was overruled, and after replication and joinder of issue thereon the case proceeded to trial, and resulted in a verdict and judgment for the plaintiff, from which judgment this appeal is taken.

The defendant by its ninth prayer asked the court to instruct the jury that:

"The plaintiff is not entitled to recover damages except for the period intervening between the date of the plaintiff's dismissal, July 1, 1915, and the date of the verdict, May 24, 1916, less such sums as the jury shall find the plaintiff has earned or should have earned during the period."

This prayer was rejected by the court below, and the correctness of its ruling thereon is before us for review.

The declaration was filed on the 16th day of July, 1915, and it is conceded that the salary of the plaintiff was paid to him to the time of his dismissal. The contract in this case is very similar in its terms to the one found in Olmstead v. Bach, 78 Md. 132, 27 A. 501, 22 L. R. A. 74, 44 Am. St. Rep. 273, where the contract was held to be an entire and not a divisible one. This court in that case said, speaking through Judge McSherry, that:

"The contract being entire, and having created the relation of master and servant, and the latter having been, as averred in the pleadings, dismissed before the expiration of the term for which he had been engaged, what redress was open to him? Obviously but one remedy for the recovery of the whole damage sustained by him. In Keedy v. Long, 71 Md. 389 [18 A. 705, 5 L. R. A. 759], this court said: 'A servant wrongfully discharged has only two remedies open to him at law, either of which he may pursue immediately on his discharge: First, he may treat the contract as continuing, and bring a special action against the master for breaking it by discharging him; and this remedy he may pursue whether his wages are paid up to the time of his discharge or not; or, secondly, if his wages are not paid up to the time of his discharge, he may treat the contract of hiring as rescinded, and sue his master on a quantum meruit for the services he has actually rendered. These two alternative remedies are the only ones open to him. Mayne on Damages, 159. Upon a quantum meruit he can only recover for the services actually rendered. Archard v. Horner, 3 Car. & P. 349; Smith v. Hayward, 7 Adol. & El. 544. In an action for damages for a breach of the contract he will be entitled to recover the actual damages he has sustained, in addition to the wages earned; and in case he has by diligence been unable to secure other employment during the entire term, he can recover the entire wages, less the amount he has actually earned during the interim, or the amount he might have earned by the exercise of proper diligence in seeking for employment in the same or similar business."

Among the defenses relied on in Olmstead v. Bach, supra, the defendant pleaded that on the date therein named they dismissed the plaintiff from their services, and at the same time paid him all wages or salary due to him under the contract to the end of the week terminating four days after his dismissal, that nine days after said dismissal the plaintiff brought suit against the defendants before a justice of the peace upon the identical contract and cause of action sued on in the case then before the court, and that thereafter the plaintiff recovered judgment in that suit for the sum of $50 and costs, which judgment was fully paid and satisfied by the defendant before the pending action was brought. The court said:

"There was but one dismissal and but one breach, and the plaintiff could not split up his cause of action, recovering a part of his damages in one suit and the remainder afterwards in other suits for that single breach. 'It is an ancient and familiar rule of law that only one action can be maintained for the breach of an entire contract, and the judgment obtained by the plaintiff in one suit may be pleaded in bar of any second proceeding. Sedgwick on Damages, 224.' Dugan v. Anderson, 36 Md. 584 . It was the appellant's plain duty to include all that belonged to that cause of action-that one breach-in the first suit, so that one proceeding, and one recovery should settle the rights of the parties. It would be at his own risk and peril if he negligently or ignorantly omitted a part of what might properly have been embraced in the cause of action in the first suit. Or as expressed by Lord Campbell in Clossman v. Lacoste, 28 Eng. L. & Eq. R. 140: 'If the contract is entirely broken, and the relation of employer and employed put an end to, I agree that the party suing ought to allege in his declaration the whole gravamen that he suffers by such breach of contract, and that he may recover therein all the damages that may ensue to him in consequence.' Again, as clearly put by the Supreme Court of Ohio in James v. Allen Co., 44 Ohio St. 226 [6 N.E. 246, 58 Am. Rep. 821]: 'As a result of the authorities, as well as upon principle, we are satisfied that in such a contract as the one in the case at bar, where the employé is wrongfully dismissed, but all wages actually earned up to that time are paid, the only action the employé has, whether he bring it at once or wait until the entire period of time has expired, is one for damages for the breach of the contract; and the measure of damages will be the loss or injury occasioned by that breach, and one recovery upon such claim, whether the damages be denominated loss of wages, or damages for breach, is a bar to a future recovery.' Wood's Mas. & Serv. 246. * * *
We hold, then, that the contract declared on is entire and indivisible; that for the breach of it by the defendants in discharging the plaintiff before the expiration of the year, or in refusing to allow him to work, a right of action arose, not for unearned wages or salary as such, but for damages for a breach of the contract, the measure of which damages would be the stipulated salary for the stipulated period of one year, less the amount the plaintiff actually earned or might by due and reasonable diligence have earned after his dismissal. Jaffray v. King, 34 Md. 223."

See, also, McGrath v. Marchant, 117 Md. 480, 83 A. 912; Baltimore Baseball Club v. Pickett, 78 Md. 378, 28 A. 279, 22 L. R. A. 690, 44 Am. St. Rep. 304.

It is said in Labatt's Master and Servant, § 363:

"The doctrine applied in England and many of the American states is that, in cases where the action is tried before the expiration of the term covered by the contract, the servant is entitled to have his damages assessed with reference to the entire term. * * * The courts which take this view decline to attach a controlling importance to the

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