Dissents are distasteful, but in this case I cannot agree with the main opinion, for the reason that, in my judgment, the whole case remains unsettled. The material part of the declaration in this case is as follows:
"For that, whereas, on May 4, 1929, the defendant being then and there engaged in the operation of planing mill at College Hill Switch in Lafayette county, Mississippi, entered into a contract of employment with the plaintiff herein whereby the defendant agreed and then and there employed the plaintiff, H.W. Thorne, to operate said planing mill and agreed to pay the plaintiff the sum of four dollars and fifty cents per day, straight time, for every day except Sunday, payable weekly, and furnish the defendant a residence for the occupancy of plaintiff and his family together with water, wood and fuel necessary for the occupancy of said residence for the plaintiff and his family, the said house rent, water, wood and fuel to be furnished, being of the value of twenty dollars per month. Said employment to continue during the period of operation of the said planing mill at the point aforesaid by the defendant, which said period of operation was dependent upon the happening of several contingencies and therefore unknown and impossible of definite determination by the parties to said agreement at said time.
"Plaintiff alleges that after the consummation of said contract which was accepted and understood thoroughly by both plaintiff and defendant, the plaintiff entered upon his duties under the terms of said contract and continued in the service of the defendant continuously until January 14, 1931, at which time the defendant herein without any cause or reason whatsoever discharged the plaintiff *Page 795 from the service of the defendant and thereafter refused to permit the plaintiff to perform the work and labor contracted for or to carry out his part of the contract in any manner whatsoever since said date.
"Plaintiff alleges that on and after September 1, 1930, the defendant refused to pay the plaintiff for his services at the rate above specified in said contract and agreement. That on February 23, 1931, the defendant notified the plaintiff to vacate the premises heretofore occupied as a residence and surrender possession thereof to the defendant. That at that time it was impossible for the plaintiff to rent a residence and comply with said notice and it was not until May 25, 1931, that the plaintiff was able to procure a residence and remove his family and surrender occupancy of said residence as insistently demanded by the defendant.
"Plaintiff alleges that he has stood ready, willing and anxious to carry out his part of the contract between the parties hereto, but the defendant on the other hand has refused to carry out its part of the contract or permit the plaintiff to render the service contracted for after the date aforesaid.
"Plaintiff now charges that on account of the breach of contract by the defendant and the positive refusal of the plaintiff to carry out its contract aforesaid, the plaintiff has been damaged in the sum of one hundred seventeen ($117) dollars per month salary from September 1, 1930, to August 12, 1931, amounting to one thousand three hundred twenty-seven ($1327) dollars, and also the sum of twenty ($20) dollars per month additional salary covering the value of house rent, wood, water and fuel from May 25, 1931, to August 12, 1931, amounting to fifty ($50) dollars and the defendant, although often requested, has refused and still refuses to pay the same, and therefore the plaintiff brings this his suit and asks judgment of and from the defendant in the total sum of one thousand three hundred seventy-seven ($1,377) *Page 796 dollars, together with interest thereon at six (6%) per cent from the due dates thereof and all costs herein."
To this declaration True-Hixon Lumber Company filed a plea of the general issue, and notice thereunder that Thorn was employed by the day for a stipulated amount, on an oral contract, terminable at will by either party, and that this contract had been fully performed by the lumber company by payment of the amount due thereon; and further set up that plaintiff was discharged because of incompetency.
The judgment rendered after the hearing of the evidence and the verdict was as follows: "This cause is this day heard by the court and the jury of the regular panel, all parties being in court and represented by counsel and after hearing the evidence and receiving the instructions of the court and hearing the arguments of counsel, the jurors retired and returned into court this verdict, `We the jurors find for the plaintiff and fix the amount at one hundred seventeen dollars. It is therefore the judgment of the court that the plaintiff, H.W. Thorne do have and recover of the defendant, the True-Hixon Lumber Company, a corporation, the sum of one hundred seventeen dollars and all cost in this behalf expended for which let execution issue.'"
The pleadings, therefore, presented the single issue of whether or not Thorne had a contract with the lumber company for straight time at the rate of four dollars and fifty cents a day, Sundays excepted, from September 1, 1930, until August 12, 1931. The defendant's plea and notice joined issue thereunder, and alleged, in short, that the contract was that it was paying only for the days Thorn actually worked. The judgment, on this single issue, was based upon the verdict of the jury in behalf of the plaintiff for one hundred seventeen dollars, which clearly established a finding by the jury that the contract existed, as contended by Thorne.
But the main opinion has looked to the evidence in *Page 797 the case, and seems to deduce therefrom that some other issue might account for the verdict of the jury in this case. A close examination of the record of the trial of the first case on November 9, 1931, discloses that Thorn testified substantially to the contract as alleged in the declaration, and to his discharge on January 12, 1931; and his evidence was pointed at the time embraced within the dates set out in the declaration, counting straight time. He did not testify as to how many days he actually worked from September 1, 1930, until January 14, 1931, the date of his discharge; and his testimony presented to the jury only one issue, straight time according to the allegations of the declaration. Mr. Alford, manager of the lumber company, testified positively and unequivocally that they had no such contract as that alleged in the declaration, but that Thorne was to work by the day, and was to be paid by the day for the days he actually work; and testified in detail as to the time checks and the checks given in payment. He testified that during the year 1930, and until January 14, 1931, the lumber company had paid Thorne for the time he actually worked, in accordance with Alford's version of the agreement. The amount of time that Thorn actually worked during the period from September 1, 1930, to the time of his discharge, is not disputed by Thorn, nor is the payment therefor in dispute, so far as the evidence is concerned. If we look to the instructions of the court, they attempted to submit only the one issue — whether the contract between the parties existed, as contended by Thorne. Hence it seems to me to be conclusive that the judgment of the court, based upon the verdict of the jury, indicates that it was of the opinion that the contract existed, as contended by Thorne, and that it was res adjudicata as to that issue.
In Thorne v. True-Hixon Lbr. Co., 167 Miss. 266, 148 So. 388, this court held, in a second suit on this same contract, that several suits might be maintained for accrued *Page 798 wages payable in installments, especially where the termination of employment by the contract depends on contingencies rendering a definite determination thereof impossible, and that the contract in this case was not invalid, and that case was remanded for trial, and there was no res adjudicata in favor of the lumber company.
We further held in that case that the verdict alleged actually to have been rendered could not be substituted for, or considered as, the verdict of the jury, to contradict the judgment entered by the court, let it be remembered that the first judgment for one hundred seventeen dollars rendered in this cause was not appealed from, but was allowed to become final, and was paid by the lumber company. If the so-called verdict can now be resorted to, then it establishes beyond peradventure that the jury did not render a verdict for any time prior to January 14, 1931, the date of Thorne's discharge. That verdict is in this language: "We, the jury, find for the plaintiff and fix the amount at one hundred seventeen dollars. We don't consider that a contract existedbetween the True-Hixon Lbr. Co. and the plaintiff, but thinkthere is a strong probability that the plaintiff did not havesufficient notice."
The italicized words were eliminated therefrom by the court in entering its judgment. Whether or not that action of the court was error, it became final and fixed, and is not now subject to review. I think we correctly held in the reported case in167 Miss. 266, 148 So. 388, that this verdict was properly excluded in that case, and it cannot be resorted to here. It is therefore my opinion that the issue of the existence of the contract was determined favorably to Thorne, and was in fact actually and undoubtedly adjudicated in the former case; and this is not contrary to Greene v. Merchants' Planters' Bank, 73 Miss. 542 et seq., 19 So. 350.
In the record here under consideration as res adjudicata *Page 799 on the issue of the liability of True-Hixon Lumber Company, the only time fixed as to when Thorne was in the hospital for an operation is found in the testimony of the manager of the company, wherein he fixed these dates as prior to June, 1930. So the figures as to time lost in the hospital for the period subsequent to September 1, 1930, in my judgment are incorrect, and are not persuasive that the jury returned a verdict for a sum found to be due Thorne for the period beginning September 1, 1930, and ending January 14, 1931.
I conclude, therefore, that the issue was submitted to the jury on whether or not the contract, in its entirety, existed as contended by Thorn; and that the judgment of the court for the plaintiff, even though for an insufficient sum, was res adjudicata of the issue of liability on that contract.