(dissenting).
I am unable to concur in the view that a contract made as the one in this case was made may be terminated at will by either party without legal liability for the breach of the contract. Of course I understand that in personal service contracts either party may terminate the contract at will subject to. damages for the breach of the contract.
In the case of Jackson v. Railroad, 76 Miss. 607, 24 So. 874, this court held that a contract for permanent employment did not violate the statute of frauds for the reason that the contract might be performed within one year, and also held that a contract for permaiient employment ■was not in violation of public policy. The contract there involved was an oral contract where the parties had entered into the performance of the contract, and, as pointed out in the majority opinion, the court held that a contract of that kind would not bind the employer to retain in his service one who was unfaithful in performing his duties or incapable of doing so, nor is the employer bound in case he has no work which the employee can perform. In that case the court approved the case of Garnig v. Carr, 167 Mass. 544, 46 N. E. 117, 57 Am. St. Rep. 488, 35 L. R. A. 512, in which it was held that a contract for permanent employment was good so long as the employer continued in his business and had work for the employee to perform, and as long as the employee was able and willing to perform the services in a satisfactory manner. This.reasoning’, being adopted by this court, and not having been since overruled, was the law at the time the contract was made and entered into, and became a part of the contract itself.
In the case of Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U. S. 1, 19 Sup, Ct. 335, 43 L. Ed. 591, the supreme court of the United States also approved the ease of Carnig v. Carr, above cited. That court, in passing upon a contract similar to the one at bar, said:
*55“The only reasonable interpretation of this contract is that the defendant promised to pay the plaintiff wages at the rate of sixty-five dollars a month, and to allow him his fuel and the benefit of the garden so long as his disability to do full work continued, and that, in consideration of these promises of the defendant, the plaintiff agreed to do such work.as he could, and to release the defendant from all liability upon his claim for damages for his personal injuries. An intention of the parties that, while the plaintiff absolutely released the defendant from that claim, the defendant might at its own will and pleasure cease to perform all the obligations which were the consideration of that release, finds no support in the terms of the contract, and is too unlikely to be presumed. Carnig v. Carr, 167 Mass. 544, 547, 46 N. E. 117.
‘ ‘ The supreme court of Alabama, when the case at bar was before it on appeal from the county court, and before the removal of the case into the circuit court of the United States, expressed the opinion that ‘the contract is sufficiently definite as to time, and hound the defendant to its performance, so long as the plaintiff should be disabled by reason of the injuries he received, which, under1 the averment that he was permanently disabled, will be for life,’ and upon that ground reversed the judgment of the county court sustaining the demurrer to the complaint, and remanded the case to that court. 110 Ala. 533, 536, 19 So. 23. As we concur in that opinion, it is unnecessary to consider how far it should be considered as binding upon us in this case.”
In the case referred to, Pierce v. Tennessee Coal, Iron & R. R. Co., 110 Ala. 533, 19 So. 22, the supreme court of Alabama considered the ease under two aspects: First, because it was contended that the contract fixed no time of performance, and was determinable at the will of either party; and, second, because the contract shows it was not entered into by the defendant, but by the plaintiff and McCormack. The court then said:
*56“Noticing’ first the second proposition, simply remark that it is clearly without merit. The complaint avers that it was the contract of the defendant, duly entered into by it, and this averment the demurrer admits to be true. It was competent for the defendant to have McCormack to execute its written agreements on its behalf if it chose to do so; and in view of the express admission of the demurrer that such was the course pursued in this instance, we think it must be so accepted. As to the first proposition, our opinion is, without entering upon any discussion of the reasons which support it, that the contract is sufficiently definite as to time, and bound the defendant to its performance, so long as plaintiff should be disabled by reason of the injuries he received, which, under the averment that he was permanently disabled, will be for life. That contracts for the support or hire of one during his life are binding, and breaches thereof actionable, see Trustees of Howard College v. Turner, 71 Ala. 429, 434, and cases cited. ” .
The majority opinion in the case before us quoted partially from section 20, 18 R. C. L., p. 509. This section also quotes the doctrine of Carnig v. Carr, supra, and authorities cited in the notes to the section show that there are two lines of authorities in the different states upon this proposition. As is shown, our state had already adopted the doctrine of the Oarnig case, and in doing so necessarily repudiated the doctrine of the other cases cited in the majority opinion here to support its conclusion.
In 18 R C. L., p. 510, section 21, it is said:
“The employer enjoys the absolute right of dismissing, his employee without cause, though, of course, he subjects himself to liability in damages in case the dismissal is in violation of the contract of service. In America, at any rate, the employee is on a plane with the employer in this respect. Every workman may quit the service of his employer at will. This right cannot be abridged or taken away by any act of the legislature, nor is it subject to any *57control by the courts, it being- guaranteed to every person under the jurisdiction of our government by the Thirteenth Amendment to the federal Constitution, which declares that involuntary servitude, except as a punishment for crime, shall not exist within the United States ox any place subject to their jurisdiction. Whether in any particular case the employee may be discharged without liability depends upon the express and implied terms of the contract.”
There is a great difference between this right to discharge an employee and the right to breach a contract for a definite time or for a time sufficient in law to bring a case within the rules of Carnig v. Carr and Jackson v. Railroad supra.
In the case before us the contract should be considered in view of all of the evidence produced at the trial, and with the known conditions of business with reference to which the contract was made. In this case there was a strike among the employees of the railroad company. It was highly desirable from the railroad point of view for it to have employees who would perform its work and thus enable it to run its business as a common carrier. The plaintiffs were engaged in other occupations outside of the municipality where the railroad shops were, and the plaintiffs gave up their business, as the proof shows, and moved at an expense into the city to take employment, and the proof shows that after their discharge it was necessary to remove from the city in order to secure other employment, and the proof expre.ssly shows that it required money to make these moves, and that this was known to the superintendent of the defendant. The contract expressly assured the plaintiffs that they would not be discharged when the strike was ended but that they would be given permanent employment with the right of seniority. The right of seniority as understood by the parties and by the general custom of common carriers in making- contracts with their employees carries with it the right of the oldest employee in point of service to retain *58Ms position so long as the carrier has work to he performed, including the right to have all the employees subsequently employed discharged first in case it is necessary to discharge a portion of the employees of the railroad company. This right is a valuable right, highly prized by all of the employees of a common carrier and other large industrial employers. Upon the faith of this assurance the plaintiffs obtained their employment and entered the employment of the railroad company. It is a notorious fact that taking the place of strikers places an employee in an unenviable position. He incurs the enmity of a large number of his fellow workmen and of that part of the general public who are in sympathy with the object and purpose of the strike. It is frequently attended with danger of physical violence, and this is so well known that no im telligent person could fail to appreciate the significance of this fact. In so far as the consideration is concerned, the giving up of employment at one place and moving to another, and the actual entering upon a contract made, is a sufficient consideration, and is beneficial to both parties to the contract.
In the case before us the railroad company obtained the services of men greatly needed and desired to carry on its business in the situation in which it had found itself. The laborers were benefited because they procured wages and the assurance of contract right to a permanent employment with.the rights of seniority which, are highly desirable and valuable to all laboring men working for employers who employ large forces of men.
ín L. & N. R. R. Co. v. Cox, 145 Ky. 667, 141 S. W. 389, it was held that a contract to give a servant permanent employment in a certain position means a contract to give him the position as long as it exists and he is able to fib it. At page 675 of the Kentucky Report of this case (141 S. W. 389, 392), the court quotes with approval Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am St. Rep. 289, saying:
“ ‘Words are to be taken in their most usual and known signification, but they get their meaning almost wholly *59from, the time, place, and circumstances under which they are used. The words ‘steady and permanent’ usually signify stability and duration, and this is especially true when they are applied to the subject-matter and the peculiar circumstances under which they are here used. We think, when reasonably construed, they show an agreement on the part of appellant to furnish appellee with employment as long as the latter is able, ready, and willing to perform such services as the company may have for him to perform.’ ”
In the case of Derosia v. Ferland, 83 Vt. 372, 76 Atl. 153, 28 L. R. A. (N. S.) 577, 138 Am. St. Rep. 1092, the court held that a master has the power to dismiss his servant without cause* but he subjects himself in so doing to the consequences of his contract, and that the servant in case of a wrongful discharge has a right to sue in damages for the whole damage resulting from such breach of the contract.
These principles seem so clear to me that it seems it would be unnecessary to cite authorities thereon.
In Atlanta Stove Works v. Hamilton, 83 Miss. 704, 35 So. 763, this court held that a discharge of an employee under a contract for a definite term must be in good faith because of dissatisfaction with his work, and not from caprice.
In the case of Timberlake v. Thayer, 71 Miss. 279, 14 So. 446, 24 L. R. A. 231, this court held that the obligation of a servant who had contracted for a fixed time obliged him to perform the full service, or in default he could not recover for the period of time that he actually served, showing conclusively to my mind that the servant is under legal obligation to discharge the contract. Of course he has a constitutional right to quit work and abandon the contract, but he cannot by abandoning it discharge himself from liability for a wrongful breach. There can be tío such thing as breaching'; a legal contract by any person without legal cause without being liable to damage for so doing.
*60In Prichard v. Martin, 27 Miss. 305, it was held that, where an employee is prevented by his employer, without .reasonable ground, from performing his contract, he may sue upon his contract and recover damages to the amount of the actual loss sustained.
The majority opinion in the case at bar cites Echols v. N. O. J. & G. N. R. R. Co., 52 Miss. 610, as sustaining the conclusion' of the majority opinion. This case does not sustain the contention of the majority opinion. In that case the contract was entered into to furnish articles and supplies at a specified price and without limit as to duration, and the trial court held that one year was a reasonable time, and that the contract expired at the end of one year, and the judgment was recovered for that part of a year which had not expired when' the contract was breached. The case was decided and affirmed upon the theory that one year was a reasonable time, and that the contract, owing to its language, was terminable at the end of the year. It is true that the court in that case used the language set forth in the majority opinion in the case at bar. The court said, however, that it would be construed as either terminable at the pleasure of either party, or as implying that the thing’ to be done shall be performed within a reasonable time, and the obligation will ceas« within the same limitation. But the court did not decide that the contract was terminable at pleasure, and if it had so decided it would necessarily have been overruled by the pronouncement in the case of Jackson v. Railroad, 76 Miss. 607, 24 So. 874.
I realize that there are some authorities which support the majority opinion, but our court in the Jackson Case chose between the authorities, and adopted the view that such contracts were not contrary to public policy, and were not within the statute of frauds; and the interpretation as to the meaning of permanent employment pronounced by the case of Carnig v. Carr, 167 Mass. 544, 46 N. K 117, 57 Am. St. Rep. 488, 35 L. R. A. 512 and notes, referred to in Jackson v. Railroad, supra, and the cliang*61ing of the legal doctrine, in my opinion, has the effect of impairing the obligation of a contract perfectly valid when made. It is well settled that the decisions of the state in force when the contract was made is regarded as the law, and is entered into and becomes a part of the contract between the parties, and that a subsequent change of opinion by the court does not affect the legal right, of the parties to the contract entered into under the first decision. Ohio Life Ins. Co. v. Debolt, 16 How. (U. S.) 416, 14, L. Ed. 997; Douglass v. Pike County, 101 U. S. 677, 25 L. Ed. 968; Thomson v. Lee County, 3 Wall. (U. S.) 327, 18 L. Ed. 177, and other authorities cited in 2 Lawyers’ Co-operative Digest, “Constitutional Law,” p. 1780.