Ream v. Watkins

• Decision Date: 31 October 1858
• Citation: 27 Mo. 516
• Parties: REAM, BY NEXT FRIEND, Respondent, v. WATKINS, Appellant.
• Court: Missouri Supreme Court

27 Mo. 516

REAM, BY NEXT FRIEND, Respondent,

v.WATKINS, Appellant.

Supreme Court of Missouri.

October Term, 1858.

1. Where an employé, wrongfully discharged before the completion of his term of service, brings an action, before the expiration of such term, to recover damages for the breach of the contract, it is error to rule that the measure of damages is the contract price of his services for the whole term.

2. A child allowed by its father to leave home and to work and shift for himself may maintain an action in his own name to recover the value of services rendered by him.

Appeal from St. Louis Law Commissioner's Court.

Buckner, for respondent.

A. M. Gardner, for appellant.

RICHARDSON, Judge, delivered the opinion of the court.

The plaintiff, who is a minor, commenced this suit by his next friend before a justice of the peace. In the statement filed with the justice, the plaintiff claimed a balance of twenty-two dollars and five cents for three months and fourteen days' work, at the rate of one hundred dollars per year, from the 23d of September, 1855, until the 6th January, 1856, when he was wrongfully discharged by the defendant; also sixty-seven dollars and seventy-five cents as damages for breach of a contract by which the defendant had engaged the plaintiff to work for him one year, commencing September 23d, 1855, at the price of one hundred dollars per annum, enough to be paid at such times as the plaintiff needed it to purchase necessary clothing, and the residue at the expiration of the year. The suit was commenced January 23, 1856. The contract as proved was that the plaintiff was engaged by the defendant to work for him for one year at the price of one hundred dollars, of which twenty dollars were to be paid from time to time as the same should be needed. The plaintiff was discharged on the 7th January, 1856, and the main defense relied on was, that his conduct was such as to justify his dismissal. The court instructed the jury that if the plaintiff was discharged before the expiration of the time for which he was hired, without good cause, he was entitled to recover the full amount of the wages for the whole term at the contract price.

This instruction was erroneous. In Smith on Master and Servant, 73 Law Lib. 90, it is said that a servant wrongfully discharged has two remedies, either of which he may pursue immediately on his discharge: “First, 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, secondly, 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.” The plaintiff can only recover in the latter form of action for the services actually rendered up to the time of his discharge, whilst in the former case he might recover something beyond the amount due at the period of his discharge. In the note to Cutter v. Powell, 2 Smith's Lead. Cas. 87, it is stated, with some hesitation, that a servant improperly discharged has another remedy, to-wit: “he may wait till the termination of the period for which he was hired, and may then, perhaps, sue for his whole wages in indebitatus assumpsit, relying on the doctrine of constructive service.” But this proposition is doubted, if not denied, in a note to Smith on Master and Servant (p. 90), and in Goodman v. Pocock, 15 Q. B. 574.

The measure of damages, in...