The only question here presented is, whether the former action, brought by the plaintiff, to recover damages against the defendant for a. breach of the same contract, is a bar to. this action. The plaintiff, in the former action counted upon a breach of the contract by the defendant, in discharging him from further work and labor, under the contract, and refusing to allow him to work any longer under the same, and claimed damages by reason of such *383breach, and for- loss of employment and inability to obtain other employment on terms as favorable as he had secured by the agreement.
The plaintiff in this action avers the same identical breach, and the right of action is predicated entirely upon it. It is true, that in addition to his other damages, he now claims for wages according to the contract, for the three quarters of the year ending on the 1st of August, 1858. But this is not for services rendered under the agreement, but the claim for compensation is founded upon the alleged offer and readiness of thp plaintiff to work according to the agreement, and the defendant’s refusal to allow him to do so. This, however, makes no difference in the nature of the action. It is still founded upon the breach of the contract by the defendant, and not upon its performance by the plaintiff. It is entirely clear that the two causes of action are identical, however the measure of damages claimed may be varied. On the former trial, the referee, as it appears, found as matter of fact that the defendant had wrongfully put an end to the contract as alleged in the complaint, without any fault on the part of the plaintiff, but held nevertheless, as matter of law, that the plaintiff was not entitled to damages, for such breach, but must wait until another payment became due by the tertiis of the agreement, before he could maintain an action for such cause. In this the referee was clearly mistaken. A party discharged under such circumstances has three remedies, either of which he may pursue at his election. First, he may bring a special action to recover the damages arising from such breach * and this . remedy he may pursue the moment the contract is broken. Secondly, he may treat the contract as rescinded, and immediately sue on the quantum meruit, for the work actually performed. Or, thirdly, he may wait until the termination of the period for which he was hired, and claim as damages the wages agreed to be paid by the contract. (See 2 Smith's Lead. Cases, p. 27, notes to Cutter v. Powell.) It is manifest, however, that a party under such circumstances could not pursue *384all these remedies, in separate actions. An action upon one, and judgment upon it, would operate as a bar to any further action. This necessarily results from the doctrine that a party cannot split up a demand, and maintain several actions for the same cause. (Fish v. Folley, 6 Hill, 54. Bendemagle v. Cocks, 19 Wend. 207.)
It is claimed on the. part of the plaintiff, that the referee in the former action, having decided that no action could be maintained, for the cause alleged, and judgment having been entered upon his report in accordance with such decision, it cannot operate as a bar to this action. But the rule is otherwise. If the party submits his claim to be passed upon, it will operate as a bar, if the decision is erroneous, the same as though it were not, if his cause of action has then accrued. The error must be corrected in'that action, by review of the verdict or judgment, and not by a new action for the same cause. (Brockway v. Kinney, 2 John. 210. Platner v. Best, 11 id. 530. Phillips v. Berick, 16 id. 136. Cowen & Hill’s Notes, 842, 3, 956, 7.)
There can be no doubt that the cause of action here alleged is in its nature indivisible. All the damages which the plaintiff could under any circumstances recover, were such as flowed directly and necessarily from the breach, which is the sole cause of action. The contract is not in the nature of a continuing covenant, like a covenant running with land. It is idle to suppose that when such a contract has been once put an end to, by one party, entirely, though without sufficient cause, and the other party has brought his action for the damages occasioned by such breach, • and had the judgment of the- court upon his claim, the contract still remains in force, so as to entitle such other party to the compensation provided for in case of its performance. When the action is brought to recover damages, for a breach of that character, it is necessarily an election, on the part of the party prosecuting it, to consider the contract at an end, so far at least as performance on his part is concerned. The action operates as a rescission by him as to *385further performance. If the party thus situated brings his action before the entire measure of damages has been filled, or, before the damages have all become known, so as to be susceptible of proof, it is his folly, or misfortune. He cannot sever them, and recover part in one action, and the residue, when discovered, in another. But the question as to what damages the plaintiff ought to recover as his compensation, does not arise here. That question necessarily arose in the other action, and should have been there determined. That action being a bar, the nonsuit was properly granted.
[Cayuga General Term, June 4, 1860.Hew trial denied.
Smith, Knox and Johnson, Justices.]