This is an action to recover damages for the allegéd breach of a written contract. By the terms of the contract the defendant agreed to employ the plaintiff as a salesman for one year from September 15, 1913, at a salary of $50 a week, and to pay his travelling and other reasonable expenses; and at the end of the year, upon full performance by the plaintiff, to assign and deliver to him two hundred and fifty shares of the capital stock of the defendant corporation.
It is the contention of the plaintiff that a judgment recovered by him against^ the defendant in the Municipal Court of the City of Boston is res judicata upon the question whether the plaintiff performed the contract in accordance with its terms,, and whether a breach thereof was committed by the defendant. In other words, the question is, whether the judgment in the first action precludes the defendant from showing ini the case at bar that there was a breach of the contract by the plaintiff, and that the defendant did not wrongfully discharge him.
In order to determine that question it is necessary to consider what was properly tried in the action in the Municipal Court. It appears from the record that it was an action of contract upon an account annexed, — the first three items being $50 each for the weeks ending respectively April 11, 18 and 25, 1914, for services rendered by the plaintiff as a salesman, and the other items for travelling and other expenses, and credits given for cash received. The defendant’s answer was a general denial and payment. The judge of the Municipal Corut properly ruled that the plaintiff could not recover upon the second and third items — as the writ was dated April 13, 1914, it is plain that the plaintiff could not recover for services rendered after that date —and found for the plaintiff upon the first item and for certain expenses. Judgment was entered in accordance with the finding.
Where services are rendered in accordance with the terms of a written contract of employment, the employee may maintain an action upon an account annexed for such services and expenses as are then due and payable. Cullen v. Sears, 112 Mass. 299, 308. In an action upon an account annexed the burden of proof was upon the plaintiff to show that he had performed the written contract in order that he might prevail. Under the gen*433eral denial it would have been competent for the defendant to have proved that the plaintiff hadxnot performed his part of the contract. Marvin v. Mandell, 125 Mass. 562, 563. Starratt v. Mullen, 148 Mass. 570. Wylie v. Marinofsky, 201 Mass. 583, 584. Hughes v. Williams, 229 Mass. 467, 470. It would not be performance of his contract by the plaintiff for him so to conduct himself as would warrant his discharge by the defendant. The judge of the Municipal Court found that on April 11, 1914, the plaintiff was discharged by the defendant without justification; and that on April 13,1914, the action was brought. He also found that on April 11, the treasurer of the defendant company said to the plaintiff “Dalton you are discharged. You discharged yourself by leaving Pittsburg . . .;” and that the plaintiff left Pittsburg and came to Boston on April 9 or 10, 1914. It is apparent that, if the defendant was justified in discharging the plaintiff, it would have, been a defence to the original action, and presented, an issue which could have been tried and adjudicated in that action. There is nothing to show that the defendant waived that defence. Upon this issue the judge of the Municipal Court found that on April 11, 1914, the plaintiff was discharged by the defendant without justification. The issue whether the plaintiff had performed his contract during the week ending April 11, 1914, was directly involved on the pleadings. That was a question which in law not only might have been tried but which the record shows was actually tried and adjudicated. Hence the rule of ires judicata must apply. Foye v. Patch, 132 Mass. 105, 110, Watts v. Watts, 160 Mass. 464. Corbett v. Craven, 193 Mass. 30. Newburyport Institution for Savings v. Puffer, 201 Mass. 41.
The exceptions to the refusal of the court to give the plaintiff’s requests two, six, seven, twelve and thirteen,, must be sustained.
Ordered accordingly.