
    [No. 6562.
    Decided February 18, 1907.]
    A. W. Carmean, Appellant, v. North American Transportation and Trading Company, Respondent.
      
    
    Judgment — Res Judicata- — Contracts for Services — Wrongful Discharge — Successive Actions. As the doctrine of “constructive service” whereby successive actions may be maintained for wages accruing after a wrongful discharge does not now prevail, and the only remedy is damages for breach of contract, a recovery for salary for several months subsequent to a wrongful discharge, under a contract for employment for one year, whether for damages eo nomine, or for constructive service, is a bar to a subsequent action to recover salary for the balance of the term; since there is but one breach of the contract for which but one recovery for damages can be had.
    Appeal from a judgment of the superior court for King county, Gilliam, J., entered October 12, 1906, in favor of the defendant, upon overruling a demurrer to the defense and the refusal of the plaintiff to plead further, in an action on a contract of employment.
    Affirmed.
    
      I. D. McCutcheon, for appellant.
    
      Bausman & Kelleher, for respondent.
    
      
      Reported in 88 Pac. 834.
    
   Rudkin, J.

On or about the 19th day of May, 1905, the defendant company employed the plaintiff to take charge of its business at Circle City, Alaska, for the term of one year, commencing on the 1st day of June, 1905, at a salary of $175 per month, payable monthly at the end of each and every month during the term, and it was further agreed that the defendant would board and lodge the plaintiff, or pay him in lieu thereof $50 per month at the end of each and every month. On or about the first day of October, 1905, the defendant discharged the plaintiff from its service, and paid him in full for all salary due or to become due under his contract up to November 1, 1905, and the $50 per month in lieu of board and lodging up to October 1, 1905. On the 11th day of January, 1906, the plaintiff commenced an action against the defendant in the superior court of King county to recover the sum of $350, as salary for the months of November and December, 1905, after his discharge; the sum of $150 in lien of board and lodging for the months of October, November, and December, after his discharge; and an item for hotel expenses not material here. On February 1, 1906, judgment was taken against the defendant by default for the aggregate amount of these several claims, and that judgment has been paid and satisfied of record. The present action was commenced on the 22d day of June, 1906, to recover salary under the same contract for the months of January, February, March, April, and May, 1906, and for the further sum of $50 per month for each of these months in lieu of board and lodging, aggregating in all the sum of $1,125. The defendant pleaded the former judgment in bar of the present action. A demurrer to this defense was overruled in the trial court, and the plaintiff electing to stand on his demurrer and refusing to plead further, a judgment of dismissal was entered. From that judgment the present appeal is prosecuted.

If a servant employed for a stated term is wrongfully discharged from his master’s employment before the expiration of his term of service, may he thereafter maintain suecessive actions to recover subsequently accruing wages, or has he but a single right of action for damages for breach of his contract of employment? In other words, is a recovery in one action a bar to any further recovery for a breach of the same contract. The right to maintain successive actions for wages accruing after a wrongful discharge is based on the doctrine of constructive service, first announced by Lord Ellenborough in Gandell v. Pontigny, 4 Camp. 375. The decisions in Alabama, Georgia, Mississippi, Wisconsin, Minnesota, and possibly one or two other states, follow this rule. On the other hand, the doctrine of Gandell v. Pontigny is no longer the law in England where it had its origin (Archard v. Hornor, 3 Car. & Payne 349; Smith v. Haward, 7 Ad. & Ell. 544; Aspdin v. Austin, 5 T. B. 671; Fewings v. Tisdal, 1 Exch. 295; Elderton v. Emmens, 6 Com. Bench 160, 60 E. C. L. 158; Goodman v. Pocock, 15 Q. B. 576), and has been repudiated by the great mass of the authorities in this country. Moody v. Leverich, 4 Daly (N. Y.) 401; Howard v. Daly, 61 N. Y. 362, 19 Am. Hep. 285; Keedy v. Long, 71 Md. 385, 18 Atl. 704, 5 L. R. A. 759; James v. Allen Co., 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821; Richardson v. Eagle Machine Works, 78 Ind. 422, 41 Am. Rep. 584; Olmstead v. Bach, 78 Md. 132, 27 Atl. 501, 44 Am. St. 273; Alie v. Nadeau, 93 Me. 282, 44 Atl. 891, 74 Am. St. 346; Booge v. Pacific Railroad, 33 Mo. 212; Cutter v. Gillette, 163 Mass. 95, 39 N. E. 1010; 20 Am. & Eng. Ency. Law (2d ed.), p. 41.

In discussing the doctrine of constructive service in Howard v. Daly, supra, the court said:

“This doctrine is, however, so opposed to principle, so clearly hostile to the great mass of the authorities, and so wholly irreconcilable to that great and beneficent rule of law, that a person discharged from service must not remain idle, but must accept employment elsewhere if offered, that we cannot accept it. If a person discharged from service may recover wages, or treat the contract as still subsisting, then he must remain idle in order to be always ready to perform the service. How absurd it would be that one rule of law should call upon him to accept other employment, while another rule required him to remain idle in order that he may recover full wages. The doctrine of ‘constructive service’ is not only at war with principle, but with the rules of political economy, as it encourages idleness and gives compensation to men who fold their arms and decline service, equal to those who perform with willing hands their stipulated amount of labor. Though the master has committed a wrong, the servant is not for one moment released from the rule that he should labor; and no rule can be sound which gives him full wages while living in voluntary idleness. For these reasons, if the plaintiff was discharged after the time of service commenced, she had an immediate cause of action for damages, which were prima facie a sum equal to the stipulated amount, unless the defendant should give evidence in mitigation of damages.”

In Olmstead v. Bach, supra, the court said:

“Salary as salary, definitely fixed and agreed to, and not a sum of money as unliquidated damages for a broken contract of hiring, is what is sued for under the declaration in the case at bar. It is a suit to recover wages, though no services have been rendered at all, and, if maintainable in that form, would preclude the defendants from showing by evidence that the plaintiff could have secured other similar employment during the time covered by the contract; because, if wages, distinctively as wages, can be recovered under such conditions instead of damages for a wrongful discharge or dismissal, they must be recovered as specific, ascertained debts, the amount of which is fixed by the contract, and is in no way subject to abatement by circumstances which would reduce the damages in a suit founded on a refusal by the defendant to allbw the plaintiff to perform his part of an indivisible contract of hiring. In other words, if under such a contract the plaintiff is entitled to recover wages as wages upon the mere offer to perform, he must be entitled' to recover just precisely the wages named in the contract, even though he might have obtained other work of the same kind at the same- price during the period for which he claims his wages under the contract. This would be recovering for constructive services. That doctrine has been altogether repudiated both in England and in this country.”

We deem it unnecessary, to review at length the authorities cited by the appellant. The cases cited from Alabama, Georgia, and Wisconsin sustain him. McEvoy v. Bock, 37 Minn. 402, 34 N. W. 740, was an action to recover an installment due under a contract of employment, but the contract itself had never been abrogated. However, in the later case of McMullan v. Dickenson Co., 60 Minn. 156, 62 N. W. 120, 51 Am. St. 511, 27 L. R. A. 409, while rejecting the doctrine of constructive service as false and illogical, the court yet held that successive actions might be maintained by the discharged employee, so that the decisions of that state probably sustain the appellant. Badger v. Titcomb, 15 Pick. 409; Stifel v. Lynch, 7 Mo. App. 326; Kerr v. Simmons, 9 Mo. App. 376; and Crouse v. Holman, 19 Ind. 30, were not actions for breach of contracts of employment, and, as we have shown, the decisions in these states are adverse to the appellant. Cutter v. Gillette; Booge v. Pacific Railroad and Richardson v. Eagle Machine Works, supra.

In Cutter v. Gillette, the court said:

“The plaintiff’s cause of action accrued when he was wrongfully discharged. His suit is not for wages, but for damages for the breach of his contract by the defendant. For this breach he can have but one action.”

The cases cited from the New York and English courts have been overruled. See Howard v. Daly, supra. The only point decided in Howay v. Going-Northrup Co., 24 Wash. 88, 64 Pac. 135, 85 Am. St. 942, was that where an action is commenced during the term of service and the trial does .not take place until after the expiration of the term of service, the plaintiff is entitled to recover the same damages that he would have been entitled to had the action been commenced after the expiration of the term. Indeed that was an action to recover damages for breach of contract of employment, not to recover wages never earned. On principa,! as well as on authority we are of opinion that the position assumed by the appellant is unsound. There was but one contract of employment, there was but one breach of that contract, and in the nature of things there should be but one action and one recovery for that breach. The former recovery, therefore, whether for damages eo nomine, or for constructive service after the discharge of the appellant, is a bar to the present action.

The judgment of the court below is affirmed.

Hadley, C. J., Fullerton, Mount, Root, and Crow, JJ., concur.  