liable to many of the inconveniences pointed out by the *645 judgment in the Exchequer Chamber; * and it would be much to be lamented if a servant, or agent, or clerk, who was dismissed, should be able to say, "I could easily get another situation, as good or better, but I will not do so, and instead of claiming the real damage I have sustained by the inconvenience and temporary loss of situation, I will bring an action for every instalment of salary till the contemplated period has elapsed." It is not, however, necessary in the present case for your Lordships to decide whether such an action could be maintained. There may be some contracts for payments, as by way of annuities for life or years, where, by reason of express stipulation, the payment may become due from time to time, until some default has happened on the part of the annuitant. There may be others where the salary depends on the performance of the labour, and where the only remedy in the case of a wrongful dismissal would be by action on the contract for damages. The question now is, whether there cannot be a breach of such a contract of employment and service as the present by a dismissal; for if so, both parties have agreed on these pleadings that such a breach has taken place. It seems to me quite too late to question the principle upon which so many actions have proceeded in modern times; and which is, that after a dismissal, the servant or party employed may recover such damages as a jury may think the loss of the situation has occasioned. If he has obtained, or is likely to obtain another situation, the damages ought to be less, or nominal, according to the real loss; and in such case the servant need not remain idle, in readiness to give services which cannot be wanted. I quite agree with what was said by my brother Erle in this House, in the case of Beckham v. Drake, that where a promise for *646 continuing employment * is broken by the master, it is the duty of the servant to use diligence to find another employment. If such an action was not maintainable, and the only remedy was by action of debt for the salary, the servant could enter into no inconsistent employment; or, if he did, could recover nothing. Thus, suppose that the servant chooses to enter into a situation at a smaller salary, he could maintain no action at all, because he could not aver that he continued ready to serve till the salary became due. Suppose a clerk or agent to be engaged for 1 2 H. L. Cas. 606. some years at a yearly salary and to be wrongfully dismissed, surely he is not bound to remain idle, and to sue his employers every year for his salary; but he may engage himself elsewhere, and at once bring an action for the dismissal; and he does not, by engaging himself elsewhere, lose a right to this remedy, as he would to the other supposed remedy. If there is a contract to keep in the employment, it seems necessarily to follow that a dismissal from such employment is a breach of contract. The result of the modern authorities, as to the remedies of a servant wrongfully discharged, is well discussed in the passage in Smith's Leading Cases. He is said to have the election of treating the contract as continuing, and suing for damages for the breach by the discharge; or, of treating it as, and acquiescing in its being, rescinded by the wrongful act of the master, and bringing an action on the quantum meruit for the work actually performed; and it is added, that he may wait till the termination of the period for which he was hired, and may then, perhaps, sue in indebitatus assumpsit for the whole wages, relying on the doctrine of constructive service. It is clear, since the decision of * Fewings v. Tisdal,2 that this last remedy cannot be main- * 647 tained in the shape of indebitatus assumpsit; for the simple reason, that the allegation of his being indebted for work done is untrue. But that decision may be supported on the form of action; and the question is still left undecided, how far a special action of debt averring a contract to pay, a continuing readiness on the part of the servant during all the period to serve, and a dispensation from the service on the part of the master, might not be maintained. A great part of the argument of the counsel for the plaintiff in error at your Lordships' bar proceeded on this point. But even supposing that they were correct, that such an action would have been maintainable on the particular contract, it by no means follows that the servant should be bound so to wait, and that he may not elect the first of the remedies, and sue for the breach in not continuing him in the employment. Whatever doubt remains as to the law on the supposed third remedy, I am not aware that the first has been ever doubted, in cases where it appears that there was to be the continuing relation of employer and servant, which is the real question in this case. 1 Lampleigh v. Brathwait, Hobart, 105; 1 Smith Leading Cases, 67. The cases of Aspdin v. Austin1 and Dunn v. Sayles2 must, I think, be considered as decided upon the construction of the particular covenants and the peculiar circumstances appearing in those cases. If they are to be taken as deciding that there is no obligation on the part of the employer to continue the relation between the parties in cases like the present, or that, where there is an agreement to employ and serve for a specified time at a specified salary, an action is not maintainable against the employer immediately for a wrongful termination of the relation, but that the party discharged, instead of suing for damages imme*648 diately, must wait, and remain idle till the end of the specified period, and then sue for the salary as a sum certain; I should think that they ought not to be supported in a Court of Error. * In the present case I think that the contract was a contract for an employment and service to continue at least for a year; and that the promise to retain and employ, laid in the second count of the declaration, does not enlarge the promise arising from the employment; and that the wrongful dismissal, which is the real breach, gave a right of action for the damages really sustained by reason of the dismissal. I answer your Lordships' question, therefore, by saying that, in my opinion, a plaintiff would, in the Courts of law, be entitled, after verdict, to judgment upon a count in the form of the second count set out in this record. MR. BARON MARTIN. In answer to your Lordships' question, I have to state that, in my opinion, a plaintiff in a Court of law would be entitled, after verdict, to judgment upon a count in the form of the second count set out in the record. In considering the question, I think the second averment in the count must be entirely disregarded. The promise there alleged is not supported by any consideration, and is a nullity. The first point is, What is the true meaning of the agreement stated in the first averment? And in my opinion it signifies that the directors expressed their then present intention, that the plaintiff below should be their attorney for the year from the 1st of January, 1845, and that they agreed to pay him 1007. for transacting their general business during that period. 15 Q. B. 671. 25 Q. B. 685. * *649 There was no obligation upon them to give him any such business; but at the expiration of the year he would be * entitled to receive the 1007., provided he had been ready and willing during that period to transact for them such general business as they required him to do. I think, after verdict, the agreement may be taken to have been made on the 30th of November, 1844; and the action having been commenced on the 8th of January, 1846, a year's salary was earned, and the plaintiff is entitled to recover it, if it appears upon the face of the count that he was ready and willing to perform his part of the contract, and that the company has not paid him his salary. In my judgment both these circumstances are distinctly averred; and I therefore think that the second count is good. MR. JUSTICE TALFOURD. Two principal considerations are involved in the question proposed by your Lordships in this case: What is the true import of the agreement stated, as made between the parties, and which forms the sole consideration for the promise alleged?and, What is the effect of the breach or breaches. complained of as violating such promise? The first consideration must, it is conceded, be confined to the matter alleged to be agreed, inasmuch as it is clear that the words added to the statement of mutual promises," and to retain and employ him as such attorney and solicitor of said company in the terms aforesaid," cannot avail the plaintiff below, by extending the agreement to something not antecedently involved in it; as, if used in such sense, there is no consideration to support them, and, if so understood, they vitiate the pleading. Is there, then, to be found in the preceding words of agreement any contract which is afterwards shown by apt averment to be broken? The question which has been mainly argued is, whether any contract is alleged as made by the company to continue, for a year, with the plaintiff below, the relation of solicitor and client,* which was broken by his dismissal and discharge, and the refusal of the company to continue to retain or employ him; and it appears to me that the count neither alleges nor implies such con tract. * 650 The agreement stated as that of the parties seems to assume that the plaintiff below was, at the time it was made, attorney and solicitor to the company, and appears to have had for its object the fixing and determining the extent and mode of remuneration during such period as the relation should continue, but does not profess to determine the period for which such relation shall endure, or the circumstances or the mode in which it may be determined by either of the contracting parties. It may contemplate such relation as probably subsisting for a year or for many years; it may possibly be collateral to some other contract fixing the duration of such relationship; but it seems to me that, in itself, it does not by any necessary implication bind the company to continue to retain and employ the plaintiff as solicitor in any sense for any term, or to abstain during any period from his dismissal. The cases of Aspdin v. Austin1 and that of Dunn v. Sayles seem to establish that a contract, whether under seal or not. under seal, to pay wages or salary during a stipulated time, does not imply an obligation to retain or employ the party entitled to receive it during the corresponding period; that, if able and willing to render service, he is entitled to demand his wages; but that he cannot insist on being enabled to earn them. I cannot distinguish the principle on which these cases are decided from that which should govern the present; for the degree of inconvenience which might result from implying a contract to retain or employ in any case can scarcely be regarded as affecting the principle; and if it could have *651 * such operation, I cannot think the Courts are bound to take judicial notice of the necessity that every joint stock company must exist for at least a year, or that it must require the aid of a standing solicitor during that time. Indeed, in the case of Aspdin v. Austin, there was a circumstance which has no corresponding incident in the present case, by which a contract to give actual employment might be rendered probable; namely, that at the end of the term contemplated in that case, a partnership was to be formed between the parties in the business which was the subject of the previous services and salary. I therefore think that the count discloses no contract to retain the plaintiff below as solicitor to the company for a year; and consequently, that if there was no breach sufficiently alleged, except his dismissal from the employment of the company, the count would disclose no good cause of action. But I think the count does allege an agreement to pay the plaintiff below one year's salary of 1007., and that it does assign a sufficient breach of that contract in the nonpay25 Q. B. 685. 1 5 Q. B. 671. |