The judgment recovered in the Third District Court, before Judge Fowler, was conclusive between the parties as to certain facts, which are: That the plaintiff was hired by the defendant on January 1st, 1871, for the period of one year, at the rate of $3,000, payable monthly; that in pursuance of this agreement, there was due to the plaintiff the sum of $37 42 for his wages under *271this agreement for the month of January, after deducting payments that had been made to him ; and a counter-claim which the defendant had against him.
The present action was brought to recover $2,000 for the plaintiffs wages under this contract, from May 1st, 1871, to January 1st, 1872, after deducting the amount earned and received by the plaintiff for work and services performed by him for other persons, after July 1st, 1871, and, as averred, during the continuance of the contract.
The plaintiff testified that from May 1st, 1871, to January 1st, 1872, he was ready and willing to perform the services under the contract made with the defendant, and that he made a tender of his services on the first day of February to the defendant.
The defendant proved that he discharged the plaintiff on the 20.th of January, 1871; that the plaintiff then left his employment, and that he has never performed any services for the defendant since.
This evidence on the part of the defendant was objected to by the plaintiff, upon the ground that he could not show that the plaintiff was dismissed during the month of January, 1871, as that was a matter of defense in the action in which •the judgment was recovered, and that the judgment was conclusive on that point. The judgment in that action was conclusive as respects the wages claimed for and recovered in it; but it is in no way conclusive upon the question in this action, whether the plaintiff was in the defendant’s ser- ' vice during the time for which he sought to recover; that is, from the first of May, 1871, to the first of January, 1872; and as respects that claim, it was certainly competent for the defendant to show that before that period commenced the plaintiff was discharged, and had not, during that period, been in the defendant’s service. There is nothing in the recovery of the previous judgment to cut him off from show- • ing that fact. To maintain an action for wages upon the contract, the plaintiff had to show that he had performed the services contracted for, or had made sufficient tender of them. (Moody v. Leverich, 4 Daly, 403; Smith v. Hayward, *2727 Adol. & El. 544; Fewings v. Tisdal, 1 Exch. 295; Flderton v. Emmens, 6 C. B. 178; Howard v. Daly, 61 N. Y. 362.) If he was prevented from performing them by his employer, his remedy is a general action to recover damages for the breach of the contract. This was not an action for recovering damages, but to recover $2,000, which, it is alleged, became due to the plaintiff, and which sum the plaintiff reduces to $1,400, allowing to the defendant the amount which he, the plaintiff, received during that time, for work done for other persons.
The proposition of the appellant, so -far as I understand it, amounts to about this: That because judgment was given in the plaintiff’s favor for a month’s wages, for the month of January, under this contract, the judgment is conclusive to show that the plaintiff was not discharged by the defendant during that time; and that his being allowed in this action to show that he dismissed the plaintiff on January 20th, 1871, was erroneous. But that judgment covers only the plaintiff’s right to wages during that month. It does not, and cannot, estop the defendant from showing that after that time, and during the whole of the time for which wages are sought to be recovered in this action, the plaintiff was out of his employment, and performed no services under the contract whatever, and made no tender of any. And this he did show by proving that the plaintiff had not been in his employment since January 20th, 1871, which fact being uncoutradicted, established that the plaintiff’s only remedy was an action for damages under the contract. He relies upon the averment' and proof, that on the first of February he tendered his services, and was, up to the time agreed upon, ready and willing to render them. But this will not entitle him to maintain an action on the contract for the recovery of the stipulated wages. To authorize such a recovery, actual performance of the services contracted for must be shown, and a tender of them, or readiness and willingness to render them, will not authorize such a recovery. If the plaintiff was prevented by the defendant from performing the services, his remedy, and his only remedy, was an action to recover damages for the *273breach of the contract, and that is not the action which he has brought.
The judgment should be affirmed.
Larremobe, J., concurred.