Olmstead v. Bach

Decision Date05 October 1893
Citation27 A. 501,78 Md. 132
CourtMaryland Court of Appeals

Appeal from Baltimore city court.

Action by Charles B. Olmstead against Henry Bach, Jr., and others for breach of contract of employment. A demurrer to the replication was sustained, and plaintiff appeals. Affirmed.


Charles Marshall and Wm. L. Hodge, for appellant.

Thos M. Lanahan and Frank Gosnell, for appellees.


The declaration in this case alleges that the plaintiff and defendants entered into a written contract under seal, whereby the latter agreed to pay to the former a salary of $50 per week, payable weekly, as compensation for the services of the plaintiff as cutter in the business of the defendants, and that the plaintiff agreed, in consideration of said salary, to devote his time and attention to the business of the defendants, as is usual in conducting a merchant tailoring business. The agreement further provided that the contract should continue in full force for one year from February 1, 1892, to February 1, 1893. The declaration also avers that the plaintiff entered into the service of the defendants under the above contract, and performed his duty thereunder until April 5, 1892, when the defendants refused to permit him to perform his part of said contract, or to pay him the salary to which he was entitled thereunder, after April 9, 1892. It further alleges that the plaintiff has always been ready and willing to perform his part of the contract, and to render the services which he agreed thereby to perform, and has always held himself in readiness and offered to perform said services according to said contract, but that the defendants have refused to permit him to perform the contract on his part, and have refused, and still do refuse, to pay him the salary of $50 a week, as therein provided, since April 9, 1892. It concludes with a claim by the plaintiff "that there is due and unpaid to him of the amount payable to him under said contract the sum of two hundred and fifty dollars, being the amount of said weekly salary stipulated to be paid by said contract to the 25th of May, 1892."

Among the defenses relied on the defendants pleaded that on April 5, 1892, they dismissed the plaintiff from their service, and at the same time paid him all wages or salary due to him under the contract down to April 9th, 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 at bar, 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 defendants before the pending action was brought. To this plea the plaintiff replied that after the pretended dismissal of him by the defendants he, notwithstanding the dismissal, presented and offered himself to the defendants as ready and willing to perform his part of the contract set forth in the declaration, and did in fact continuously so offer to perform the same, and that the suit mentioned in said plea was a suit for his salary for one week under said contract. This replication was demurred to. The Baltimore city court sustained the demurrer, and entered judgment thereon for the defendants. The plaintiff thereupon took this appeal from that judgment.

It is apparent from this outline of the pleadings that the wages or salary now sought to be recovered, as well as those sued for before the magistrate, were not wages or salary which had been actually earned, but were wages or salary for work and labor that the plaintiff was ready and willing, but had not been allowed, to perform. That the contract declared on was broken by the defendants when they dismissed the plaintiff is conceded, or, at least, is not denied, by the pleadings. For that breach the plaintiff was clearly entitled to recover. But to what extent, and how often? The answer to these inquiries involves at the very outset an examination of the scope of the agreement set forth in the declaration, as to whether it is an entire or divisible one; because, if it be entire and indivisible, and there has been but a single breach, but one action can be brought therefor. The contract is one of hiring. Under it the plaintiff was employed as a cutter at $50 per week, payable weekly, and it was expressly provided that this employment and this weekly payment of wages should continue for one year. The duration of the employment was as much an integral part of the agreement as the stipulation relating to the amount of the compensation and the stated periods for its payment. It was not a hiring by the week, payable weekly, because it was explicitly declared that it should continue for a year. It was not 52 separate, independent contracts, but one indivisible agreement, covering the period of a year, and making provision for the weekly payment of wages. The consideration for the plaintiff's undertaking was the defendants' agreement to pay him $50 a week and to employ him as a cutter for one year. The latter was as much a part of the consideration promised him for entering the service of the defendants as the former, for it would be wholly unreasonable to assume, as any other construction must, that it was the intention of the parties that the hiring should be for a week, determinable by notice, or else merely a hiring at will, as it undoubtedly would have been had there been no stipulation as to its duration. Iron Co. v. Carpenter, 67 Md. 554, 11 A. 176. The good sense and reasonableness of the particular case must always guide and govern courts in determining whether a contract is divisible or entire. Dugan v. Anderson, 36 Md. 585; Jones v. Dunn, 3 Watts & S. 109; Robinson v. Green, 3 Metc. (Mass.) 159. Whether a contract must be sued on as an entirety or is divisible and can become the foundation of separate suits for the infraction of independent stipulations depends on its terms; and, in order to arrive at a correct construction, due regard must be had to the intention of the contracting parties as revealed by the language which they have employed, and the subject-matter to which it has reference. Broumel v. Rayner, 68 Md. 47, 11 A. 833; Brewster v. Frazier, 32 Md. 308; Brantly, Cont. 216. Obviously the appellant expected and contracted for continuous employment for a year, and not for a weekly or still more precarious hiring at will, and the appellees contemplated securing a permanent cutter in their tailoring business. Certainty in the duration of the employment, as well as exemption from the annoyance incident to frequent changes in such an employ, were manifestly within the contemplation of both of the parties to the contract when it was entered into, and with these considerations before them it seems to us clear that the appellant never supposed himself only hired by the week or at will, and equally clear that the appellees never understood that their employe was at liberty to terminate the engagement upon a week's notice. The hiring was for a year and the wages were payable in weekly installments of $50 each. The subsidiary provision as to the payment of the wages each week does not split up the contract into as many agreements as there were payments or periods named for payments to be made, (Norrington v. Wright, 115 U.S. 188, 6 S.Ct. 12;) nor is it inconsistent with a yearly hiring, (Norton v. Cowell, 65 Md. 362, 4 A. 408; Fawcett v. Cash, 5 Barn. & Adol. 908;) for, as said by Lord Kenyon in King v. Birdbrooke, 4 Term R. 245: "Whether the wages be to be paid by the week or the year can make no alteration in the duration of the service if the contract were for a year." The contract is, then, an entire, and not a divisible, one. It does not consist of distinct and independent subjects which admit of being separately executed and closed. A dismissal during the year was consequently a breach of the contract as an entirety, and furnished the party not in default with a good cause of action. 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, wnat 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. 704, 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, Dam. 159. Upon a quantum meruit he can only recover for the services actually rendered. Archard v. Hornor, 3 Car. & P. 349; Smith v. Hayward, 7 Adol. & E. 544. In an action for damages for a breach of the...

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