Mt. Hope Cemetery Ass'n v. Weidenman

• Decision Date: 31 October 1891
• Citation: 28 N.E. 834,139 Ill. 67
• Parties: MT. HOPE CEMETERY ASS'N v. WEIDENMAN.
• Court: Illinois Supreme Court

139 Ill. 67

28 N.E. 834

MT. HOPE CEMETERY ASS'N

v.WEIDENMAN.

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from appellate court, first district.

Action by Jacob Weidenman against the Mount Hope Cemetery Association. Judgment for plaintiff. Defendant appeals. Reversed.

G. W. & J. T. Kretzinger, for appellant.

Robert Hervey and Bryan & Hatch, for appellee.

PER CURIAM.

This action was brought on a written agreement, by which the defendant appointed the plaintiff landscape gardener, engineer, and superintendent of its grounds for the term of five years, at a salary of $3,500 a year, to be paid in monthly installments. The term commenced October 1, 1885, and the plaintiff's salary was paid to May 1, 1886. On the 15th of June, 1886, the defendant discharged the plaintiff, as it claimed it had a right to do under the contract. The plaintiff denied the right to thus terminate the contract, and October 22, 1886, brought this action, filing the consolidated common counts only. On the 12th of March, 1888, the plaintiff, by leave of court, amended his declaration by filing a special count founded upon a breach of the contract. This count sets out the terms and conditions of the contract, and alleges that the plaintiff had performed and fulfilled on his part, etc., as landscape gardener, engineer, and superintendent of the defendant's cemetery grounds, etc., as required by the defendant, and the terms and conditions of his agreement, ‘and has always been ready and willing to perform and complete all and singular the services in said agreement by him to be performed.’ Yet the defendant, contriving, etc., did not and would not perform such agreement, but has hitherto wholly refused and neglected so to do, and, disregarding its agreement, would not permit or suffer the plaintiff to proceed to complete said work and service by him to be rendered, and prevented him from so doing, and then and there wrongfully discharged the plaintiff from further performance and completion of said agreement, etc., ‘whereby said plaintiff hath lost and been deprived of the profits and advantages which he otherwise might and would have derived and acquired from the completion of said work, labor, and service,’ etc. By this count plaintiff elected to treat the defendant's act as a repudiation of the contract, and sought to recover once for all his damages for being wrongfully prevented from performance. It is not sought to recover wages under the contract, but damages for being wrongfully prevented from earning the same under the contract.

The first point insisted upon is that the judgment should have been arrested by the court below. It is said that by filing the common counts plaintiff elected to sue for wages due him at the time of his discharge upon a quantum meruit, and, having made his election, was barred from afterwards proceeding for damages accruing from a breach of the contract; such subsequent proceeding being in affirmance of the contract. This position is untenable. Indebitatus assumpsit lies upon written contract, though it be under seal, when the plaintiff has performed, and nothing remains to be done under it but the payment of money, which payment it is the duty of the defendant under the contract to make. In such case the plaintiff need not declare specially. Lane v. Adams, 19 Ill. 167;Eggleston v. Buck, 24 Ill. 262;Elder v. Hood, 38 Ill. 533;Runde v. Runde, 59 Ill. 98. In Catholic Bishop v. Bauer, 62 Ill. 188, it is said: ‘There is no liability, by implication of law, upon an express contract, executory in its provisions. But where there has been full performance, and nothing remains to be done but the payment of money, or where there has been only part performance, and the remainder has been waived or prevented, and the work performed has been accepted, then, in either case, a recovery may be had for the contract price of the service performed under an indebitatus assumpsit.’ It would follow that the plaintiff could have recovered in indebitatus assumpsit under the contract for the services performed, and therefore it cannot be said that by filing the common counts merely he has elected to proceed upon the quantum meruit. In Smith, Mast. & S. 188, the rule is thus stated: ‘A servant wrongfully discharged has the two following remedies open to him at law, either of which he may pursue immediately on his discharge: (1) He may treat the contract of hiring and service as continuing, and bring a special action against his master for breaking it by discharging him; and this remedy he may pursue whether his wages are paid up to the period of his discharge or not; or (2) if his wages are not paid up to the time of his discharge he may treat the contract of hiring and service as rescinded, and sue his master on a quantum meruit for the services he has actually rendered.’ And, after stating that the former of these remedies is the preferable one, the author continues: ‘In this form of action the plaintiff cannot recover wages due for the period during which he has actually served. These wages must be recovered on the count for wages, which may be added to the count for the wrongful dismissal.’ By the words ‘this form of action’ the author evidently means that wages earned cannot be recovered under the special count for breach of the contract, but that a count for such wages may be added in the same action. Wood, Mast. & S. § 125. In this case the undertaking was to pay in monthly installments. Each installment was a several demand, and might have been sued for severally during the continuance of the contract. If there had been no discharge, the recovery on a single installment would have been no bar to the recovery of installments subsequently falling due. The discharge of the plaintiff without cause would not affect plaintiff's right or remedy to recover for services before that time earned. Under the special count the plaintiff was entitled to recover such actual damages as he had sustained by his wrongful discharge, and under the common counts he was entitled to recover the wages due, so far as he had actually performed under the contract.

It is next insisted that the trial court did not adopt the proper measure of damages, and therefore the damages awarded are excessive. These questions are directly raised by the propositions of law asked to be held, and refused by the court. We are of opinion that the court erred in fixing the measure of demages. It refused to hold that no recovery could be had in this action for damages accruing subsequent to the day of trial, but held that the plaintiff was entitled to recover wages from the 1st of May to the 15th of June for services rendered during that period at the contract price; and from the latter date, being the date of his discharge, to the date of the trial, the measure of damages for breach of the contract was the contract price, less $700 earned by the plaintiff; and that the measure of damages for the unexpired term subsequent to the trial was the contract price, less a discount of 6 per cent. per annum from the trial to the expiration of the term of service. In this action the plaintiff sued for a present breach of the contract, and seeks to recover not for any one or more of the installments due or to become due, but, once for all, the damages he has sustained by the breach of the contract by the defendant. Instead, therefore, of alleging as a breach the non-payment of installments, the breach averred is the prevention of plaintiff from performance on his part, whereby he is deprived of profits and gains he would have realized from the completion of the agreement. The special count is in all substantial particulars taken from Chitty. 2 Chit. Pl. 325-327. As held by this court in Hamlin v. Race, 78 Ill. 422, if the plaintiff sought the enforcement of the contract he would be required to proceed in accordance with its terms,-that is, he must allege that the installments...