Thorne v. True-Hixon Lumber Co

• Decision Date: 29 May 1933
• Docket Number: 30664
• Citation: 148 So. 388,167 Miss. 266
• Court: Mississippi Supreme Court
• Parties: THORNE v. TRUE-HIXON LUMBER CO

148 So. 388

167 Miss. 266

THORNE v. TRUE-HIXON LUMBER CO

No. 30664

Supreme Court of Mississippi

May 29, 1933

Division A

Suggestion Of Error Overruled September 25, 1933.

APPEAL from the circuit court of Lafayette county HON. THOS.E PEGRAM, Judge.

Action by H. W. Thorne against the True-Hixon Lumber Company. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. W. T. Falkner and Jas. Stone & Sons, all of Oxford, for appellant.

In the present case the lower court correctly held that the verdict of the jury was not a part of the judgment and was inadmissible. This ruling is obviously correct.

15 R. C. L. 570, sec. 3; Gibson v. Robinson (1893), 90 Ga. 756, 16 S.E. 969, 35 A. S. R. 250; G. Amsinck & Company, Inc., v. Springfield Grocer Co., 7 F.2d 855.

In the case of Williams v. Luckett (1899), 77 Miss. 394, 26 So. 967, it was held that a recovery of one month's wages on a contract for services is, in a subsequent suit for another month's wages on a contract for services is, in a subsequent suit for another month's installment, res adjudicata as to the propositions that the previously disputed term of employment was by the year, and that the wages were payable monthly.

Before a plea of res adjudicata can prevail, four things must be shown: First, identity in the thing sued for; second, identity in the cause of action; third, identity of persons and parties to the action; and, fourth, identity of the quality in the person for or against whom the claim is made.

Jones v. George (1921), 126 Miss. 576, 89 So. 231; Dunlap v. Edwards (1855), 29 Miss. 41.

In the case of Adams v. Y. & M. V. Railroad Company (1898), 77 Miss. 194, 24 So. 200, it was held that a judgment as to the taxes of one year, is not res adjudicata as to liability for taxes for a later year although the same contention of law was involved in both suits.

Y. & M. V. R. R. Company v. Adams (1902), 81 Miss. 90, 32 So. 937.

In the case of Armfield v. Nash (1856), 31 Miss. 361, it was held that a suit on, and recovery for, the first installment of a contract is no bar to a suit on a second installment not due when the first suit was commenced.

Davis v. Davis (1888), 65 Miss. 498, 4 So. 554; Williams v. Luckett (1889), 77 Miss. 394, 26 So. 967.

L. C. Andrews, of Oxford, for appellant.

"When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive in the latter not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings or as incident to or essentially connected with the subject-matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties."

15 R. C. L., p. 963.

"A contract of employment for a particular period is entire and indivisible, but if it is agreed in the contract that the employee shall be paid in installments at stated intervals, performance of that part of the contract by the employer is divisible and the employee may maintain an action for wages for services performed on each failure of the employer to pay as agreed."

1 R. C. L., pp. 353, 354.

The judgment in the first case, which is pleaded as a bar to the prosecution of the second suit, receives its force from the verdict of the jury, and the jury by its verdict said that "we do not consider that a contract existed between True-Hixon Lumber Company and H. W. Thorn but think there is a strong probability that H. W. Thorn did not have sufficient notice."

Lamar v. Williams, 39 Miss. 342.

There was one contract, and one alleged breach of that contract. For that one breach of the contract, plaintiff, appellant here, measured his damages in the first suit at one thousand three hundred seventy-seven dollars, and in the second suit for the same breach of the contract claimed damages in the sum of eight hundred twenty-two dollars.

Ogden-Howard Company v. John H. Brank, 8 A. L. R. 334; Doherty v. Schipper and Block, 95 N.E. 75.

If it is permissible to construe the judgment in the former suit in the light of the verdict rendered therein, then it appears that there was a finding to the effect that there was no contract existing between appellant and appellee.

Lester G. Fant, Sr. & Jr., of Holly Springs, for appellee.

The contract was not divisible. It was a contract for employment for services for one continuous period of time, the services to be continuously rendered; and it is settled in Mississippi that such contracts, even though the payment is to be in monthly installments, are not divisible.

Fidelity & Guaranty Co. v. Tate Co. (1917), 114 Miss. 1, 74 So. 769.

In the original suit No. 5981 the appellant was not suing for installments or divisible contract, but for one entire breach of one contract. In his first action, No. 5981, he recovered damages for breach of the contract. He was bound to include all possible elements of damage in that action. As said by this court "He must also in one suit claim all the damages he has sustained, because for one cause of action but one suit is given the plaintiff to be tried upon its merits."

Insurance Co. v. Mercantile Co. (1917), 117 Miss. 760, 78 So. 709.

"A servant or agent wrongfully dismissed from his employment has his election to treat the contract as rescinded and recover on a quantum meruit the value of his services rendered, or to sue for breach of the contract; but having chosen one form of remedy he is bound by his election, that is to say, a judgment in an action on quantum meruit will bar a subsequent action for breach of contract, and vice versa, and a recovery for breach of contract will preclude any further recovery for such breach."

34 C. J. 831, par. 1241 (3).

OPINION

Cook, J.

The appellant, H. W. Thorne, sued the appellee, True-Hixon Lumber Company, in the circuit court of Lafayette county, alleging in his declaration that on May 4, 1929, appellee entered into a contract of employment with him to operate its planing mill at College Hill Switch, in Lafayette county, and agreed to pay him the sum of four dollars and fifty cents per day straight time, for every day except Sunday, payable weekly, and to furnish a residence for himself and...