Dissenting Opinion by
Orlady, J.,Oct. 11, 1915:
I dissent from the conclusion reached by the majority of the court, for the following reasons:
'A jury could properly find from the undisputed evidence in the case, that the suspension of the mine was a condition over which the plaintiffs did not have control, and under the undisputed facts they stood ready to load the coal into cars as soon as they would be furnished. They could not anticipate the action of the defendants in either proceeding with the work, or in dismantling the colliery, and the first affirmative notice to bind them was when the plant was wrecked. The defendants could have relieved all doubt of this situation at any time by *8giving proper notice, and thus fix a definite time when the statute of limitations would begin to run. There is no undisputed fact in this record to warrant the court in fixing a particular date, and the neglect of the defendants to do so should not be made to work a satisfaction of these labor claims. It must be conceded that the performance of the contract was suspended through no fault of the workmen, and there are other facts in dispute and conflicting inferences to be drawn from them, to determine the good faith of the defendant’s delay in not proceeding with the operation of the mine.
Where a party’s right of action depends upon the happening of a certain event in the future, the cause of action accrues, and the statute begins to run only from the time when the event happens; and when the happening of the event is within the control of the defendant, as in this case, he should be required to establish the time of that event by clear testimony.
I feel that the running of the statute was suspended until the dismantling of the colliery or within a reasonable time thereafter. What is a reasonable time in such a case cannot be determined according to any precise rule, but depends upon the particular circumstances involved.
Where there are several breaches of a continuing contract, it is not required by the law to treat the contract as abandoned at the first breach or at- any particular breach, and where several breaches amount to a total failure of performance, an action may be sustained on the theory that the statute does not begin to run until such time as the claimant elects to rely no longer on performance by the promisor.
I feel that the case should have been submitted to a jury, under proper instructions, and would reverse the judgment, with a procedendo.