The English courts formerly permitted a wrongly discharged servant to sue for subsequently accruing wages, as such, either waiting until the termination of the period for which he was hired,18 or bringing an action for each instalment of wages as the time for the payment thereof arrived.19 The recovery of each instalment was based on a theory of constructive service. If this theory was logically carried out, it would seem as if the employee in order to avail himself of the remedy must remain continuously ready to serve, and therefore free of any obligation to take other employment.20 The doctrine of conv. Love, 152 Ind. 641, 63 N. E. 181, 54 N. . 437, 71 Am. St. Rep. 384; Chisholm v. Preferred Bankers' Assur. Co., 112 Mich. 50, 55, 70 N. W. 415; Bennett v. Morton, 46 Minn. 113, 48 N. W. 678; Beissel v. Vermillion Farmers' Elevator Co., 102 Minn. 229, 113 N. W. 575,12 L. R. A. (N. S.) 403; Boland v. Glendale Quarry Co., 127 Mo. 520, 30 S. W. 151; Larkin v. Hecksher, 22 Vroom, 133; Milage v. Woodward, 186 N. Y. 252, 78 N. E. 873; King v. Steiren, 44 Fa. St. 90, 84 Am. Dec. 419; Chamberlin v. Morgan, 68 Pa. St. 168; Hendrickson v. Anderson, 5 Jones, 246; Latimer v. York Cotton Mills, 66 S. C. 135, 44 S. E. 559; Porter v. Burkett, 65 Tex. 383; Barker v. Knickerbocker Ins. Co., 24 Wis. 630, 638; Winkler v. Racine Wagon, etc., Co., 99 Wis. 184, 74 N. W. 793. To the same effect are Fisher v. Masillon Iron & Steel Co., 209 I11. App. 616, 120 N. E. 467; Mindes Millinery Co. v. Wellborn (Tex. Civ. App.), 201 S. W. 1059.

17John C. Lewis Co. v. Scott, 95 Ky. 484, 26 S. W. 192, 44 Am. St.

Rep. 251; Shepherd v. Gambill, 29 Ky. L. Rep. 1163, 96 S. W. 1104; Hunt v. Crane, 33 Miss. 669, 69 Am. Dec. 381. In Maynard v. Royal etc. Co., 200 Mass. 1, 85 N. E. 877, the court found it unnecessary to decide which was the proper rule.

"Gandell v. Pontigny, 4 Camp. 375, S. C. 1 Stark. 198. See also Collins v. Price, 5 Bing. 132; Smith v. Kingsford, 3 Scott, 279.

19 See per Crompton, J., in Emmens Elderton, 4 H. L. C. 624.

20In Doherty v. Schipper, 250 Ill. 128, 134, 95 N. E. 74, 34 L. R. A. (N. S.) 557, Ann. Cas. 1912 B. 364, the court said:

"The doctrine of constructive service, as applied to a case like this and where used as a basis of recovery, is illogical and unsound. This court has universally held that the proper measure of damages in a case like this is the contract price, less what the employee earned or could have earned. That being so, if the discharged employee can find employment it is his duty to accept it. How structive service has, however, been abandoned in England,21 and is discredited in the United States. The proper remedy for the discharged employee being recognized as the breach of a contract to employ and thereby allow the employee to earn the promised reward.22

This principle is as applicable where the. agreed compensation is to be made at the testator's death by a legacy, as where it is a fixed amount payable at stated intervals.23 A few jurisdictions still allow the remedy of suing for the wages; as such.24 But even in such jurisdictions though the employer may be vexed by successive actions, presumably the ultimate damages allowed would be the same as in other jurisdictions; that is, can it then be said that while he is performing service for another person he is constructively engaged in the employ of the employer by whom ' he was discharged? The result of this doctrine would be that the employee was actually performing service for one person while he was constructively performing service for aother. The only true basis upon which an action like this can rest is for damages for breach of contract, ud as the breach of contract occurs at the time of the discharge the cause of action is then complete, and such cause of action cannot be split up but all the damages must be recovered in one judgment and in the first action, and this being true, no subse-<pent action can be based upon the one of action which has been merged in the first judgment."

21 Smith v. Hayward, 7 A. & E. 544; Fewings v. Tudal, 1 Ex. 206; Emmens v. Hderton, 4 H. L C. 624; Brace v. Odder, [1895) 2 Q. B. 253; James v. Evans, [1807] 2 Q. B. 180.

22 Doherty v. Schipper, 250 111. 128 95 N. E. 74, 34 L. R. A. (N. S.) 557; Ann. Cas. 1012 B. 364; Richard-no v. Eagle Machine Works, 78 fad. 422, 41 Am. Hep. 584; Olmstead v Bach, 78 Md. 132, 27 Atl. 501, 22 R. A. 74, 44 Am. St. Rep. 273;

Howard v. Daly, 61 N. Y. 362, 19 Am. St. Rep. 285; Fisher v. Mechanic-ville, 168 N. Y. S. 908, 910, 172 N. Y. App. Div. 426 ( cf. Potter v. City of New York, 59 N. Y. App. Div. 70, 68 N. Y. S. 1039; Bell v. City of New York, 46 N. Y. App. Div. 195, 61 N. Y. S. 709); Buffkin v. Baird, 73 N. C. 283, 292; James v. Allen County, 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821; Menihan Co. v. Hopkins, 129 Tenn. 24, 164 S. W. 775; Derosia p. Ferland, 83 Vt. 372, 28 L. R. A. (N. S.) 577, 76 Atl. 153; Jameson v. Board of Education, 78 W. Va. 612, 89 S. . 255, L. R. A. 1916 F. 926.

22 Edwards v. Slate, 184 Mass. 317, 68 N. E. 342; Henry v. Rowell, 31 N. Y. Miss. 384, 64 N. Y. S. 488, aff'd without opinion, 63 N. Y. App. D. 620, 71N. Y. S. 1137; McCurry v. Purgason. 170 N. Car. 463, 87 S. E. 244, Ann, Cas. 1918 A. 907; cf. Ga Nun v. Palmer, 202 N. Y. 483, 96 N. E. 99, 36 L. R. A. (N. S.) 922.

24Strauss v. Meertief, 64 Ala. 299, 38 Am. Rep. 8; Marx v. Miller, 134 Ala. 347, 32 So. 765; Isaacs v. Davies, 68 Ga. 169; Armfield v. Nash, 31 Miss. 361; Allen v. Colliery Engineers' Co., 196 Pa. 512, 46 Atl. 899; Allen v. International Text Book Co., 201 Pa. 579, 51 Atl. 323, 88 Am. St. Rep. 834.

the value of the employee's time as shown by wages which he obtained, or might have obtained in other employment would be deducted.26 It should be observed, however, that if the rule laid down in England ill regard to the effect of an anticipatory breach26 is actually carried into effect, when an employer repudiates the contract before the time for performance begins, the employee. may disregard the repudiation and hold himself ready to carry put his contract until the period of employment begins .This involves the conclusion that he may refuse other employment if offered. The American cases on the effect of repudiating a contract to manufacture27 make it seem probable that in the case of an anticipatory repudiation of a contract of service, as well as in the case of a wrongful discharge after the service has begun an employee must avoid unnecessary damage by seeking other employment.