St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-01-31
FIRST SUIT NO BAR.
Interesting Discussion on a
Contract Between Employ
er and Employe.
WILL HAVE A TENDENCY
10 Make Employers Cautious
Of. Alluring Contracts ii
Future.
WILL HAVE A TENDENCY
A SERIES OF Law SUITS
Can Be Enjoyed by the Plain
tiff in the Case Re-
ferred To.

A decision handed down yesterday
Nv judge Canty, of the supreme
court. may tend to make employers
more cautious of entering into al
Turing contracts with employees.
In February, 1892, William McMui-
Ian made a written contract WIN
the Dickinson company, of Mime
anolis. by which the company
agreed to pay him $500 year IN
installments of 1925 per month for
services as assistant manager SO
long as he performed the duties OF
his Dosition and retained the own
ership of fifty shares of the COM
panv's stock. The contract, how
ever, was to terminate with the cS-
piration of the thirty years CT the
company's corporate existence.
MCMILLAN was discharged, With
out Just cause, in October, 1893. He
afterwards ATTAINED a judgment
against the Dickinson company for
his services up to March, 1891. Again
he entered this last suit to secure
his wages for March and April, 1894.
The company claimed, as defense,
that the previous suit was bar to
all further proceedings. Such, in
deed. has been Uncommon decision;
but, as the supreme court well says,
this view would oblige an employe
o;+l,o,. until n II10OCt the
End of Six Years,
receiving meantime no income what
ever, or lose all the salary due him
after he began suit. At any rate,
to agree with the statute of linita-
lions. the suit would have to be
brought within six years; and when
the contract runs, as in this case,
for a much longer period, the great
er part of the lost pay would never
be recovered-which is a manifest
injustice.
The remedy Of the employee lies
in a suit for damages by reason Of
the non-receipt of the contract pay
ments; not a suit for wages to pay
for constructive services during the
balance of the contract term. He
can, therefore, sue for recovery of
e.. these damages whenever, according
to the contract, an installment of his
salary becomes due. So MIR. McMul-
Ian can enjoy a series of lawsuits,
and be paid for the same at the
rate of $125 month, which is, per-
70 il
salary.
The decision of the lower court,
denying that the first suit was bar
to subsequent suits, is affirmed. The
syllabus follows:
The syllabus.
William Mcmillan, respondent, VS..
The Dickinson Company, appellant.
Syilabus-Where, under a contract
for personal service, the wages are
paid in installments, and before the
term of service expires the master
dismisses the servant without his
fault and the wages are paid up to
the time Of dismissal, held, the la
bility of the master to the servant is
for constructive service during the
balance of the term, but a contin-
gent liability of indemnity for loss
of wages. This liability acc~ues by
installments on successive contin-
gencies, each of which consists in
the failure of the servant without his
fault to earn during an installment
period the amount Of wages which
he would have earned had the con-
tract been performed, and the de-
ficiency is the measure of dam
ages; the original breach is not total,
but the failure to pay the successive
installments constitutes successive
breaches, and successive actions
may be maintained for the recovery
of the installments of damages as
they accrue, if any.
This is the rule of damages usually
allowed under the fiction of con-
structive service, but that fiction is
rejected as false and inconsistent
with that rule, While the rule itself
is retained.
1t does not follow because of this
that the discharged servant can
not, if he so elect, consider the
breach total, bring an action for all
his damages and recover all accru-
Ing up to the time of the trial; but it
is held that prospective damages
beyond the time of trial are too con-
tingent and speculative to be al
1OyNG6 OT1a1, Il
CAVITY, J.
Other Decisions.
-Four other decisions were handed
down of which the syllabi are:
Berlin Machine Works, respondent.
VS.. Security Trust Company, appel
liant. Syllabus-1. Some four months
after the making of an agreement to
sell a chattle and the delivery of it
to the vendees, they signed and de-
Ivered to the vendor an instrument
purporting to be a receipt for the
chattle, stating that it was held by
them as the property of the vendor
on a conditional sale to them, that
title to it was not to pass until it
was paid for, and agreeing to paw
the purchase price; it further pro-
vided that on failure to pay the
same the vendor shall have a right
to take possession of the chattle
and remove and sell it, and pay the
balance of the proceeds of the sale
above the claim of the vendor to the
Yendees.
Feld-Conceding that the sale to
TIE vendees was absolute and not
conditional, and that this instrument
would not divest a title once vested,
it at least constituted an equitable
chattle mortgage which gave to the
vendor lien on the chattIe and a
right to take possession and enforce
that lien.
2. After delivery of this instru-
ment to the vendor, a return of it to
the vendee for the sole purpose of