An agreement in writing between a mining company and a machinist
stated that, while in its employ, he was seriously hurt under
circumstances which he claimed, and it denied, made it liable to
him in damages; that six months after the injury, both parties
being desirous of settling his claim for damages, the company
agreed to pay him regular wages and to furnish him with certain
supplies while he was disabled, and carried out that agreement for
six months, at the end of which, after he had resumed work, it was
agreed that the company should give him such work as he could do
and pay him wages as before his injury, and this agreement was kept
by both parties for a year, and then, in lieu of the previous
agreements, a new agreement was made that his wages "from this
date" should be a certain sum monthly, and he should receive
certain supplies, and he on his part released the company from all
liability for his injury and agreed that this should be a full
settlement of all his claims against the company.
Held
that the last agreement was not terminable at the end of any month
at the pleasure of the company, but bound it to pay him the wages
stipulated and to furnish him the supplies agreed so long as his
disability to do full work continued, and that if the company
discharged him from its service without cause, he was entitled
to
Page 173 U. S. 2
elect to treat the contract as absolutely and finally broken by
the company and, in an action against it upon the contract, to
introduce evidence of his age, health and expectancy of life, and,
if his disability was permanent, to recover the full value of the
contract to him at the time of the breach, including all that he
would have received in the future as well as in the past if the
contract had been kept, deducting, however, any sum that he might
have earned already or might thereafter earn as well as the amount
of any loss that the defendant sustained by the loss of his
services without its fault.
This was an action brought January 22, 1892, in the Circuit
Court of Jefferson County, in the State of Alabama, by Frank H.
Pierce, a citizen of the State of Alabama, against the Tennessee
Coal, Iron & Railroad Company, a corporation of the State of
Tennessee, doing business in the State of Alabama, upon a written
contract, signed by the parties, and in the following terms:
"Pratt Mines, Ala. 4th June, 1890. Whereas, I, F. H. Pierce,
while in the employ of the Tennessee Iron, Coal and Railroad
Company, Pratt Mines Division, as a machinist was seriously hurt by
a trip of tram cars on the main slope of the mine, known as 'Slope
No. 2' and operated by the Tennessee Coal, Iron, and Railroad
Company under circumstances which I claim render the said company
liable to me for damages, but whereas they disclaim any liability
for said accident or the injuries to me resulting from same, and
both parties being desirous of settling and compromising said
matter, and whereas the said Tennessee Coal, Iron, and Railroad
Company did make me a proposition on the ___ day of November, 1888,
said accident having occurred on the 21st day of May, 1888, that
they would furnish me such supplies from the commissary at No. 2
prison as I might choose to take, pay me regular wages while I was
disabled, and give me my coal and wood for fuel at my dwelling, and
the benefit of the convict garden at No. 2, and whereas, said
proposition was accepted by me and carried out by the said company,
and whereas, in May, 1889, after I had resumed work, a further
proposition was made to me to give me work such as I could do,
paying me therefor the wages paid me before said accident, that is,
$60 per month, and in addition free house rent [or, in lieu of
Page 173 U. S. 3
house rent, a certain amount of supplies from the convict
commissary at No. 2 prison which supplies were to amount to about
the sum paid by me for house rent], and whereas said agreement has
been faithfully kept by both parties, and whereas, on the 4th day
of June, 1890, it is mutually agreed between myself and the said
company that it will be better to give me the house rent than the
supplies of about equal amount from the commissary, now therefore
it is agreed, in view of the above propositions, which have been
faithfully carried out, that my wages from this date are to be $65
a month, and in addition I am to have, free of charge, my coal and
wood necessary for my household use at my dwelling, and the same
benefit from the garden as is had by others who are allowed the
garden privilege, and I, on my part, agree and bind myself to
release the said company from any and all liability for said
accident, or from the injuries resulting to me from it or from the
effects of it, and agree that this is to be a full and satisfactory
settlement of any and all claims which I might have against said
company."
The complaint set out the contract, except the clause above
printed in brackets, and alleged that, by this contract, the
defendant became liable to pay the plaintiff monthly during his
life the wages therein stipulated, and to furnish him with coal and
wood and allow him the privilege of the garden, as therein agreed;
that the plaintiff had always been ready and offered to do for the
defendant such work given to him as he was able to do, and had
labored at the same for such reasonable time as he was able to work
and bound to work under this contract; that, by the injuries
received by him from the accident mentioned therein he was
permanently disabled in the use of his legs and hands, and
otherwise so injured as to be incapacitated to do more work than he
had done and had offered to do; but that the defendant, without any
reasonable ground for so doing, abandoned the contract and refused
to carry it out, claiming that the defendant was under no
obligation to pay to the plaintiff the wages therein stipulated
longer than suited its pleasure, and had wholly and purposely
disregarded and refused to abide by the obligations of the
contract
Page 173 U. S. 4
for the period of six months next before the commencement of the
suit, and had entirely abandoned the contract and discharged the
plaintiff from its service. The plaintiff claimed damages in the
sum of $50,000 for the defendant's breach and abandonment of the
contract.
The defendant demurred to the complaint upon the ground that the
contract set out therein was one of hiring, terminable at the will
of either party, and not one of hiring for life, as alleged in the
complaint, and that it appeared from the allegations of the
complaint that the defendant, in terminating the contract of
hiring, had only exercised its legal right under the contract. The
court sustained the demurrer, and, the plaintiff declining to amend
his complaint, rendered judgment for the defendant, and the
plaintiff, on February 21, 1894, appealed from that judgment to the
Supreme Court of Alabama.
The record transmitted to this Court does not show any further
proceedings in the Supreme Court of Alabama. But the official
reports of its decisions show that, at November term, 1895, it
reversed that judgment and remanded the case to the county court.
Pierce v. Tennessee Coal Co., 110 Ala. 533. And the record
before this Court necessarily implies that fact by setting forth
that, in March, 1896, on motion of the defendant suggesting that
from prejudice and local influence it would not be able to obtain
justice in the state courts, the case was removed from the county
court into the Circuit Court of the United States for the Southern
Division of the Northern District of Alabama, and a motion to
remand the case to the state court was made by the plaintiff (on
what ground did not appear in the record), and was overruled.
In the circuit court of the United States, on January 4, 1897,
the following proceedings took place: the demurrer to the complaint
was renewed by the defendant and overruled by the court. The
plaintiff then amended his complaint by inserting in the copy of
the contract set forth therein the words above printed in brackets,
and a demurrer to the amended complaint was filed and overruled. In
answer to this complaint, the defendant filed two pleas: (1) a
denial of each and every allegation of the complaint; (2)
"the defendant,
Page 173 U. S. 5
for further answer to the complaint, says that the plaintiff,
under and by the terms of the contract set out in the complaint,
contracted to perform for the defendant during the term thereof
such service as he was able to perform, in consideration for the
promises made by defendant therein, and the defendant avers that
the plaintiff thereafter became able to perform service for the
defendant, and did in fact perform such service for some time
thereafter, and that, while engaged in the performance of such
service, the plaintiff voluntarily, and without excuse therefor,
refused to further perform such service as he was able to perform
and was in fact performing for the defendant as required by said
contract, and the defendant thereupon discharged the plaintiff from
its service, and the defendant avers that the plaintiff failed to
comply with the conditions imposed upon him by said contract."
The plaintiff joined issue on the first plea, and demurred to
the second plea upon the ground that it did not go to the whole
consideration of the contract, and was no answer to the entire
action, and the court sustained his demurrer. The defendant, for
further answer and by way of recoupment, pleaded that, on May 3,
1891, the plaintiff, voluntarily and without excuse, refused to
perform such labor as he was able to perform and was in fact
performing for the defendant as required by the contract, and since
that time had continued to refuse to perform, and had not in fact
performed, such service, or any part thereof, to the damage of the
defendant in the sum of $50,000.
A bill of exceptions tendered by the plaintiff and allowed by
the court showed that at the trial before the jury the following
proceedings were had:
The plaintiff introduced and read in evidence the contract sued
on, and introduced evidence tending to prove the allegations of the
complaint. He also offered evidence that, at the time of his
discharge by the defendant from its employment in May, 1891, he was
55 years of age, and that he was then, and had since been, in good
health and addicted to no habits, of drinking or otherwise,
affecting his health and expectancy of life, and introduced the
American tables of mortality
Page 173 U. S. 6
used by insurance companies, showing his expectancy of life at
the time of his discharge and at the time of the trial.
But the court ruled that no recovery could be allowed on the
contract beyond the installments of wages due and in default up to
the date of the trial, and, upon the defendant's motion, excluded
all evidence of the plaintiff's age, health, and expectancy of
life
"on the ground that it was immaterial and irrelevant, and
because damages for the expectancy of life was a matter too vague
and uncertain to be allowed."
The plaintiff duly excepted to the ruling and to the exclusion
of evidence, and, to present the same point, asked the court to
give, and duly excepted to its refusal to give, the following
instruction to the jury:
"If the defendant, after making the contract sued on and before
the suit, refused further to pay the plaintiff and to furnish the
articles stipulated to be furnished, and refused to employ the
plaintiff, and discharged him, the plaintiff is entitled to the
full benefit of his contract, which is the present value of the
money agreed to be paid and the articles to be furnished under the
contract for the period of his life, if his disability is
permanent, less such sum as the jury may find the plaintiff may be
able to earn in the future, and may have been able heretofore to
earn, and less such loss as the defendant may have sustained from
the loss of the plaintiff's service without the defendant's
fault."
The defendant also tendered and was allowed a bill of
exceptions, presenting substantially, though in different form, the
questions involved in the plaintiff's case, and the contents of
which therefore need not be particularly stated.
The jury returned a verdict for the plaintiff in the sum of
$5,893, upon which judgment was rendered. Each party sued out a
writ of error from the Circuit Court of Appeals for the Fifth
Circuit.
That court was of opinion that the contract sued on was for
"an employment by the month, and therefore, like every other
such employment, subject to be discontinued at the will of either
party at the expiration of any month or at any time for adequate
cause,"
and consequently that there was error
Page 173 U. S. 7
in overruling the demurrer to the complaint, and upon that
ground, without passing upon any other question in the case,
reversed the judgment of the circuit court of the United States and
remanded the case to that court for further proceedings, Judge
Pardee dissenting. 81 F. 814. The plaintiff thereupon applied for
and obtained a writ of certiorari from this Court. 168 U.S.
709.
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the court.
In the circuit court of the United States, a verdict and
judgment were rendered for the plaintiff for a less amount of
damages than he claimed, and each party alleged exceptions to
rulings and instructions of the judge, and sued out a writ of error
from the circuit court of appeals. That court held that the
defendant's demurrer to the complaint should have been sustained,
and therefore reversed the judgment of the circuit court and
remanded the case for further proceedings. A writ of certiorari to
review the judgment of the circuit court of appeals was thereupon
applied for by the plaintiff, and was granted by this Court.
The fundamental question in this case is whether the contract in
suit, made by the parties on June 4, 1890, is a contract intended
to last during the plaintiff's life, or is a mere contract of
hiring from month to month, terminable at the pleasure of either
party at the end of any month.
The facts bearing upon this question, as appearing upon the face
of this contract, are as follows: in May, 1888, the plaintiff,
while employed as a machinist in the defendant's coal mine in
Alabama, was seriously hurt by a trip of tram cars on the main
slope of the mine under circumstances which the plaintiff claimed,
and the defendant denied, rendered it liable to him in damages. The
parties were desirous of settling and
Page 173 U. S. 8
compromising the plaintiff's claim for damages for the injuries,
and had repeated negotiations with that object. In November, 1888,
they made an agreement (which does not appear to have been reduced
to writing) by which the defendant was to pay the plaintiff regular
wages while he was disabled, and also to furnish him with such
supplies as he might choose to get from a commissary and to give
him coal and wood for fuel at his dwelling house and the benefit of
a garden belonging to the defendant. That agreement was carried out
by the defendant until May, 1889, and was then, after the plaintiff
had resumed work, modified by stipulating that the defendant should
give the plaintiff such work as he could do, should pay him
therefor wages of $60 a month, as before the accident, and should
give him the rent of his house, or, in lieu of house rent, an
equivalent amount of supplies from the commissary, and the
agreement, as so modified, was faithfully kept by both parties
until June 4, 1890. Finally, on that day, the parties entered into
the written contract sued on, by which, after reciting the
plaintiff's claim for damages and the earlier agreements, it was
agreed "in view [evidently a misprint for "in lieu"] of the above
propositions, which have been faithfully carried out," that the
plaintiff's "wages from this date are to be $65 a month" (the
increase of wages being apparently intended as an equivalent for
the provision, now omitted, for house rent, or supplies from the
commissary), and that he was to have, free of charge, his fuel and
the benefit of the garden, and the plaintiff, on his part, agreed
to release the defendant from any and all liability for the
accident, or for the injuries resulting to him from it or from the
effects of it, and that this should be a full and satisfactory
settlement of all claims which he might have against the
defendant.
The effect of the provisions and recitals of the contract sued
on may be summed up thus: the successive agreements between the
parties were all made with a view to settle and compromise the
plaintiff's claim against the defendant for personal injuries
caused to him by the defendant's cars while he was in its service
as a machinist, and seriously impairing his ability to work. By
each agreement, the defendant was
Page 173 U. S. 9
to pay him certain wages and to furnish him with certain
supplies. The supplies to be furnished were evidently a minor
consideration, and require no particular discussion. The more
important matter is the wages. The defendant at first agreed to pay
the plaintiff "regular wages while he was disabled." The agreement
in that form would clearly last so long as he continued to be
disabled, and could not have been put an end to by the defendant
without the plaintiff's consent. By the next succeeding agreement,
made after the plaintiff had resumed work, the defendant was "to
give him work, such as he could do, paying him therefor the wages
paid before said accident -- that is, $60 a month." That agreement
must be considered as a mere modification of the first, requiring
the plaintiff to do such work as he could do, but showing that he
was still much disabled by his injuries. By the final agreement in
writing of June 4, 1890, after reciting the plaintiff's claim for
damages for these injuries, as well as the earlier agreements, his
wages were increased by a stipulation that his "wages from this
date are to be $65 a month," and he expressly released the
defendant from all liability for the injuries resulting to him from
the accident or from the effects thereof, and agreed that this
should be a full and satisfactory settlement of all his claims
against the defendant.
The only reasonable interpretation of this contract is that the
defendant promised to pay the plaintiff wages at the rate of $65 a
month, and to allow him his fuel and the benefit of the garden so
long as his disability to do full work continued, and that in
consideration of these promises of the defendant the plaintiff
agreed to do such work as he could, and to release the defendant
from all liability upon his claim for damages for his personal
injuries. An intention of the parties that, while the plaintiff
absolutely released the defendant from that claim, the defendant
might at its own will and pleasure cease to perform all the
obligations which were the consideration of that release finds no
support in the terms of the contract, and is too unlikely to be
presumed.
Carnig v. Carr, 167 Mass. 544, 547.
Page 173 U. S. 10
The Supreme Court of Alabama, when the case at bar was before it
on appeal from the county court and before the removal of the case
into the circuit court of the United States, expressed the opinion
that
"the contract is sufficiently definite as to time, and bound the
defendant to its performance so long as the plaintiff should be
disabled by reason of the injuries he received, which, under the
averment that he was permanently disabled, will be for life,"
and upon that ground reversed the judgment of the county court
sustaining the demurrer to the complaint and remanded the case to
that court. 110 Ala. 533, 536. As we concur in that opinion, it is
unnecessary to consider how far it should be considered as binding
upon us in this case.
See Williams v. Conger, 125 U.
S. 397,
125 U. S. 418;
Gardner v. Michigan Central Railroad, 150 U.
S. 349;
Great Western Tel. Co. v. Burnham,
162 U. S. 339,
162 U. S. 344,
and cases cited;
Moulton v. Reid, 54 Ala. 320.
It follows that the judgment of the United States circuit court
of appeals in this case was erroneous, and must be reversed.
It appears to us to be equally clear that the circuit court of
the United States erred in excluding the evidence offered by the
plaintiff, in restricting his damages to the wages due and unpaid
at the time of the trial, and in declining to instruct the jury as
he requested.
Upon this point the authorities are somewhat conflicting, and
there is little to be found in the decisions of this Court having
any bearing upon it beyond the affirmance of the general
propositions that,
"in an action for a personal injury, the plaintiff is entitled
to recover compensation, so far as it is susceptible of an estimate
in money, for the loss and damage caused to him by the defendant's
negligence, including not only expenses incurred for medical
attendance and a reasonable sum for his pain and suffering, but
also a fair recompense for the loss of what he would otherwise have
earned in his trade or profession, and has been deprived of the
capacity of earning by the wrongful act of the defendant,"
and,
"in order to assist the jury in making such an estimate,
standard life and annuity tables showing at any age the
Page 173 U. S. 11
probable duration of life and the present value of a life
annuity are competent evidence,"
Vicksburg &c. Railroad v. Putnam, 118 U.
S. 545,
118 U. S. 554,
and that, in an action for breach of contract, "the amount which
would have been received, if the contract had been kept, is the
measure of damages if the contract is broken."
Benjamin
v. Hilliard, 23 How. 149,
64 U. S. 167.
But the recent tendency of judicial decisions in this country,
in actions of contract as well as in actions of tort, has been
towards allowing entire damages to be recovered, once for all, in a
single action, and thus avoiding the embarrassment and annoyance of
repeated litigation. This especially appears by well considered
opinions in cases of agreements to furnish support or to pay wages,
a few only of which need be referred to.
In
Parker v. Russell, 133 Mass. 74, the declaration
alleged that in consideration of a conveyance by the plaintiff to
the defendant of certain real estate, the defendant agreed to
support him during his natural life, and that the defendant
accepted the conveyance and occupied the real estate, but neglected
and refused to perform the agreement. The plaintiff proved the
contract,and introduced evidence that the defendant did support him
in the defendant's house for five years, and until the house was
destroyed by fire, and had since furnished him no aid or support.
The jury were instructed that
"if the defendant for a period of about two years neglected to
furnish aid or support to the plaintiff, without any fault of the
plaintiff, the plaintiff might treat the contract as at an end, and
recover damages for the breach of the contract as a whole, and that
the plaintiff would be entitled to recover compensation for the
past failure of the defendant to furnish him aid and support, and
full indemnity for his future support."
Exceptions taken by the defendant to this instruction were
overruled by the Supreme Judicial Court of Massachusetts. Mr.
Justice Field, in delivering judgment, said:
"In an action for the breach of a contract to support the
plaintiff during his life, if the contract is regarded as still
subsisting, the damages are assessed up to the
Page 173 U. S. 12
date of the writ, and not up to the time when the verdict is
rendered. But if the breach has been such that the plaintiff has
the right to treat the contract as absolutely and finally broken by
the defendant, and he so elects to treat it, the damages are
assessed as of a total breach of an entire contract. Such damages
are not special or prospective damages, but are the damages
naturally resulting from a total breach of the contract, and are
suffered when the contract is broken, and are assessed as of that
time. From the nature of the contract, they include damages for not
performing the contract in the future, as well as in the past. The
value of the contract to the plaintiff at the time it is broken may
be somewhat indefinite because the duration of the life of the
plaintiff is uncertain, but uncertainty in the duration of a life
has not, since the adoption of life tables, been regarded as a
reason why full relief in damages should not be afforded for a
failure to perform a contract which, by its terms, was to continue
during life. When the defendant, for example, absolutely refuses to
perform such a contract after the time for entering upon the
performance has begun, it would be a great hardship to compel the
plaintiff to be ready at all times during his life to be supported
by the defendant if the defendant should at any time change his
mind, and to hold that he must resort to successive actions from
time to time to obtain his damages piecemeal, or else leave them to
be recovered as an entirety by his personal representatives after
his death.
Daniels v. Newton, 114 Mass. 530, decides that
an absolute refusal to perform a contract before the performance is
due by the terms of the contract is not a present breach of the
contract for which any action can be maintained, but it does not
decide that an absolute refusal to perform a contract after the
time and under the conditions in which the plaintiff is entitled to
require performance is not a breach of the contract, even although
the contract is, by its terms, to continue in the future."
133 Mass. 75, 76. It is proper to remark that the point decided
in
Daniels v. Newton was left open in
Dingley v.
Oler, 117 U. S. 490,
117 U. S. 503,
and has never been brought into judgment in this Court.
Page 173 U. S. 13
So, in
Schell v. Plumb, 55 N.Y. 592, the action was by
a woman for a breach of an oral contract by which the defendant's
testator agreed to support the plaintiff during her life, and she
agreed to render what services she could towards paying for her
support. The contract was carried out for some years, and the
defendant then turned her away and refused to support her. At the
trial, the judge, against the defendant's objection, admitted in
evidence the Northampton tables of life annuities to show the
probabilities of life at the plaintiff's age, and instructed the
jury that if the plaintiff was turned out in violation of the
contract without any misconduct on her part, she was entitled to
recover damages from the breach of the contract to the time of
trial, deducting what wages she might have earned during that time,
and also to recover for her future support and maintenance, as to
which the jury were instructed as follows:
"Your verdict is all she can ever recover, no matter how long
she may live. That ends the contract between these parties, and you
will decide, considering her age, her health, her condition in
life, and the circumstances under which she is placed, how long she
will probably live, and how much services she can probably perform
in the future, and say how much more it will cost her to support
herself than she will be able to earn, and allow her to recover for
such sum."
The verdict was for the plaintiff, and judgment was rendered
thereon. The defendant appealed, contending that if the plaintiff
was entitled to recover at all, she could only recover for the time
prior to the commencement of the action, or, at most, to the time
of trial, and that, as to the future, it was impossible to
ascertain the damages, as the duration of life was uncertain, and a
further uncertainty arose from the future physical condition of the
person. But the court of appeals, in an opinion delivered by Judge
Grover, affirmed the judgment, saying:
"Here, the contract of the testator was to support the plaintiff
during her life. That was a continuing contract during that period,
but the contract was entire, and a total breach put an end to it,
and gave the plaintiff a right to recover an equivalent in damages,
which equivalent was the present value of her contract. . . . It
may be
Page 173 U. S. 14
further remarked that, in actions for personal injuries, the
constant practice is to allow a recovery for such prospective
damages as the jury are satisfied the party will sustain
notwithstanding the uncertainty of the duration of his life and
other contingencies which may possibly affect the amount."
55 N.Y. 597, 598.
See also Remelee v. Hall, 31 Vt. 582;
Sutherland v. Wyer, 67 Me. 64.
In
Eastern Tennessee &c. Railroad v. Staub, 7 Lea
397, the facts were singularly like those in the case at bar. The
plaintiff having, while in the employ of the defendant railroad
company as an engineer and in the discharge of his duties as such,
received serious injuries by a collision between his locomotive
engine and another train, and having brought an action to recover
damages for those injuries, an agreement by way of compromise was
entered into by which, in consideration of the plaintiff's agreeing
to dismiss his suit, the defendant agreed to pay the costs thereof
and the plaintiff's attorney's fee and physician's bills, and
further agreed to retain him in its employ, the plaintiff working
when in his own opinion he was able to do so and performing only
such services as in his disabled condition he might be able to
perform. The defendant agreed to pay him a certain specified sum
per day, regular wages paid to machinists, whether he labored or
not, and the contract was to continue as long as the injuries
should last. For some time after this agreement, the plaintiff
continued at intervals to perform light work for the defendant,
receiving pay, however, only for the time he actually worked, and
the defendant then denied any liability under the agreement and
refused to allow the plaintiff to continue the service under it.
The Supreme Court of Tennessee held that the plaintiff was entitled
to recover in one action the entire damages not only for wages
already due and unpaid, but also damages to the extent of the
benefit that he would probably have realized under the contract,
and, speaking by Judge McFarland, said:
"It is a mistake to suppose, as has been done in argument, that
because, in estimating the damages, we look to the probable course
of events after the suit is brought, we are therefore allowing
damages that accrue after the action is
Page 173 U. S. 15
brought. The right to recover damages accrues upon the breach of
the contract. But the rule of damages in such cases is what would
have come to the plaintiff under the contract had it continued,
less whatever the plaintiff might earn by the exercise of
reasonable and proper diligence on his part, and, of course, in
ascertaining this, we must look to a time subsequent to the breach,
and in some cases to a time subsequent to the bringing of the suit.
Nor is it any objection to the recovery that, in this case, the
damages are difficult to ascertain, depending upon contingent and
uncertain events. There are many cases in which the damages are
uncertain and difficult to ascertain, and in fact cannot be
ascertained with certainty, but this has never been regarded as a
sufficient reason for denying all relief."
7 Lea 406.
These cases appear to this Court to rest upon sound principles,
and to afford correct rules for the assessment of the plaintiff's
damages in the case at bar.
The legal effect of the contract sued on, as has been seen, was
that the defendant promised to pay the plaintiff certain wages and
to furnish him with certain supplies so long, at least, as his
disability to work should continue, and the consideration of these
promises of the defendant was the plaintiff's agreement to do for
the defendant such work as he was able to do, and his release of
the defendant from all liability in damages for the personal
injuries which had caused his disability.
The complaint alleged, and the plaintiff at the trial introduced
evidence tending to prove, that by those injuries he was
permanently disabled; that he was always ready and offered to do
for the defendant such work as he was able to do, and labored at
that work for such reasonable time as he was able to work and bound
to work under the contract, and that the defendant, without any
reasonable ground therefor, denied its obligation to pay the
plaintiff the stipulated wages longer than suited its pleasure,
and, for six months before the commencement of the action,
disregarded the contract and refused to abide by it, and entirely
abandoned the contract, and dismissed the plaintiff from its
service.
Page 173 U. S. 16
If these facts were proved to the satisfaction of the jury, the
case would stand thus: the defendant committed an absolute breach
of the contract at a time when the plaintiff was entitled to
require performance. The plaintiff was not bound to wait to see if
the defendant would change its decision and take him back into its
service, or to resort to successive actions for damages from time
to time, or to leave the whole of his damages to be recovered by
his personal representative after his death. But he had the right
to elect to treat the contract as absolutely and finally broken by
the defendant, to maintain this action, once for all, as for a
total breach of the entire contract, and to recover all that he
would have received in the future, as well as in the past, if the
contract had been kept. In so doing, he would simply recover the
value of the contract to him at the time of the breach, including
all the damages, past or future, resulting from the total breach of
the contract. The difficulty and uncertainty of estimating damages
that the plaintiff may suffer in the future is no greater in this
action of contract than they would have been if he had sued the
defendant, in an action of tort, to recover damages for the
personal injuries sustained in its service, instead of settling and
releasing those damages by the contract now sued on.
In assessing the plaintiff's damages, deduction should, of
course, be made of any sum that the plaintiff might have earned in
the past or might earn in the future, as well as the amount of any
loss that the defendant had sustained by the lose of the
plaintiff's services without the defendant's fault. And such
deduction was provided for in the instruction asked by the
plaintiff and refused by the judge.
The questions of law presented by the defendant's bill of
exceptions, allowed by the circuit court of the United States, are
substantially like those above considered, and require no further
notice.
The result is that the judgment of the circuit court of appeals
sustaining the demurrer to the complaint and reversing the judgment
of he circuit court of the United States must be reversed, that the
judgment of the circuit court of the
Page 173 U. S. 17
United States must also be reversed because of the rulings
excepted to by the plaintiff, and that the case must be remanded to
that court, with directions to set aside the verdict and to order a
new trial.
Judgments of the circuit court of appeals and of the circuit
court of the United States reversed, and case remanded to said
circuit court for further proceedings in conformity with the
opinion of this Court.
