The question of the entirety of a contract of employment is presented in determining whether a separate action can be brought for each breach. An employe who is wrongfully discharged, has a choice of remedies; all of them, according to the view entertained by the majority of the courts, are based upon the theory that the contract is an entire one. He may ignore the contract, and sue in quantum meruit for the services already rendered.1 Choosing this remedy bars an action on the contract for damages, to which the employe is otherwise entitled.2

N. W. 41; Northwest Thresher Co. v. Mehlhoff, 23 6. D. 476, 122 N. W. 428; Nichols & Shepard Co. v. Chase, 103 Wis. 570, 79 N. W. 772.

8 Berlin Machine Works v. Miller, 59 Wash. 572, 110 Pac. 422.

9 Robinson v. Berkey, 111 la. 550, 82 N. W. 972.

lO Aultman & Taylor Co. v. Lawson, 100 la. 569, 69 N. W. 865.

11 Aultman & Taylor Co. v. Lawson, 100 la. 569, 69 N. W. 865.

1 Montgomery County v. Emigrant Co., 47 la. 91.

2 Cantwell v. Crawley, 188 Mo. 44, 86 S. W. 251.

3 Montgomery County v. Emigrant Co., 47 la. 91.

1 Keedy v. Long, 71 Md. 385, 5 L. R. A. 759, 18 Atl. 704.

See ch. LXXXVIII.

If the employe who is discharged without cause elects to bring an action upon the contract, and not for reasonable value for services rendered, a question is frequently presented whether he must bring one action for damages on the theory that the contract is an entire contract, and that the breach on the part of the employer has operated as a total breach of the entire contract, or whether he may treat the contract as still in effect and may recover his compensation under the contract according to the terms thereof, as the various instalments of such compensation fall due. The English courts were at first inclined to hold that the employe could remain ready and willing to perform and that he could thus keep the contract alive and recover his compensation as the instalments thereof fell due by the terms of the contract.3 It was soon seen, however, that the rule was resulting in great economic loss, since the employe could recover, on this theory, only if he remained idle and ready to serve his employer whenever the employer wished him to serve; and it was furthermore feared that this rule might furnish a constant temptation to employes to provoke their employers to a discharge without giving them technical legal cause therefor; in which case the employes were allowed to recover full compensation while doing no work. The earlier cases were, accordingly, overruled; and it was held that the employe could have but one action on the contract, and that action for the recovery of damages,4 which, in cases of this sort, would not be the entire contract price, but rather the contract price less the amount which the employe could earn at similar employment in that neighborhood by the use of due diligence.5

In the United States, the courts at the outset were inclined to follow the original English view and permit the employe to recover the full contract price;6 and this theory is still held by a number of courts.7 The great weight of modern authority, however, is in favor of the theory that the employe has but one right of action in case of unlawful discharge; and that right of action is a right to recover damages.8 If the employe recovers a judgment upon the contract on account of the breach thereof by unlawful discharge, such judgment merges the entire cause of action;9 and the employe can not maintain another action upon such contract even though, through a mistaken view as to the effect of such breach, he merely sought to recover the compensation which was due under the contract at the time that the action was brought, or at the time of the trial.10 A different result might be reached, it may be added, in jurisdictions in which the Code of Civil Procedure contains a provision to the effect that in case a less amount than is actually due is sought to be recovered, through a mistake of the pleader, the party who is entitled to recover such amount may maintain another action to recover such additional amount, subject only to the penalty of being obliged to pay the costs of the second action.

2 Keedy v. Long, 71 Md. 385, 6 L. R. A. 769, 18 Atl 704.

See ch. LXXXVII and ch. LXXXVIII.

3Gandell v. Pontigny, 4 Campbell, 375.

4Archard v. Hornver, 3 Car. & P. 349; Goodman v. Pocock, 15 Ad. & EL 576.

5 See ch. LXXXVII.

6 Gordon v. Brewster, 7 Wis. 355.

7 Alabama. Liddell v. Chidester, 84 Ala. 508, 5 Am. St. Rep. 387, 4 So. 426.

North Carolina. Markham v. Mark-ham, 110 N. Car. 356, 14 S. E. 963.

Pennsylvania. Allen v. Colliery Engineers Co., 196 Pa. St. 512, 46 Atl. 899.

Rhode Island. Frost v. International Rubber Co., 37 R. I. 406, 92 Atl. 1022.

Tennessee. Allen, v. Maronne, 93 Tenn. 161, 23 S. W. 113.

8 United States. Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U. S. 1, 43 L. ed. 591.

Connecticut. Viall v. Lionel Mfg. Co., 90 Conn. 694, 98 Atl. 329.

Indiana. Hamilton v. Love, 152 Ind. 641, 71 Am. St. Rep. 384, 53 N. E. 181, 54 N. E. 437.

Iowa. Weeksman v. Powell, 178 la. 991, 160 N W. 377.

Maryland. Dugan v. Anderson, 36 Md. 567, 11 Am. Rep. 509.

New Jersey. Larkin v. Hecksher, 61 N. J. L. 133, 3 L. R. A. 137, 16 Atl. 703.

New York. Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; McCargo v. Jergens, 206 N. Y. 363, 99 N. E. 838.

Ohio. James v. Allen County, 44 O. S. 226, 58 Am. Rep. 821, 6 N. E. 246.

West Virginia. Rhoades v. Chesapeake & Ohio Ry., 49 W. Va. 494, 87 Am. St. Rep. 826, 55 L. R. A. 170, 39 S. E. 209.

Wisconsin. Kennedy v. South Shore Lumber Co., 102 Wis. 284, 78 N. W. 567; Ornstein v. Yahr & Lange Drug Co., 119 Wis. 429, 96 N. W. 826; Green v. Somers, 163 Wis. 96, 157 N. W. 529.

9 See Sec. 1136 et seq. and Sec. 2555 et seq.

10 United States. Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U. S. 1, 43 L. ed. 591.

Connecticut. Viall v. Lionel Mfg. Co., 90 Conn. 694, 98 Atl. 329.

Indiana. Hamilton v. Love, 152 Ind. 641, 71 Am. St. Rep. 384, 53 N. E. 181, 54 N. E. 437.

Maryland. Dugan v. Anderson, 36 Md. 567, 11 Am. Rep. 509.

New Jersey. Larkin v. Hecksher, 51 N. J. L. 133, 3 L. R. A. 137, 16 Atl. 703.

New York. McCargo v. Jergens, 206 N. Y. 363, 99 N. E. 838.

Ohio. James v. Allen County, 44 O. S. 226, 58 Am. Rep 821, 6 N. E. 246.

Wisconsin. Ornstein v. Yahr & Lange Drug Co., 119 Wis. 429, 96 N. W. 826; Green v. Somers, 163 Wis. 96, 157 N. W. 529.