This action was brought to recover a salary of $350 per month for seven months from September 1, 1893, to April 1, 1894, amounting in the aggregate to $2,450. The plaintiff obtained a verdict and judgment for the full amount claimed. The defendant appeals from the judgment and from an order denying him a new trial.
The action is based on a written agreement made between the parties to the suit on August 20, 1886, in which plaintiff, Stone, agreed to devote ten years, beginning with that date, to the publication and sale of the historical works of defendant, Bancroft, at a monthly salary of $350, and defendant agreed to employ him on those terms. Suit was maintained for a former period of service under this same contract, and the judgment in plaintiff's favor affirmed in Stone v. Bancroft, 112 Cal. 652. Reference is here had to that case for a fuller statement of the contract here in suit. It is settled by that case that the contract is one for personal services, and not a partnership agreement.
1. It is contended by appellant that in this suit the plaintiff *Page 83 has mistaken his remedy; that the defendant discharged plaintiff from his service; and that, consequently, if plaintiff has any cause of action at all, it is one for breach of the contract, and not one for services under the contract. But appellant fails to call our attention to any declaration or other act of defendant which amounted to an unequivocal discharge of the plaintiff from further employment. To be sure, it appears that plaintiff was prevented from working at all during the period covered by the present suit, by the defendant; but it is one thing to prevent a party from laboring, and quite a different thing to discharge him from all further employment.
In the former instance the contract need not be treated as broken, but the party, though he has performed no labor under it, may sue on the contract and recover the agreed compensation. In the latter instance there is an unequivocal breach of the contract to employ for a specified time by the employer, and the suit should be as for a breach of the agreement to employ. All of which is clearly laid down and illustrated in Stone v. Bancroft,112 Cal. 652. The same principle is stated in Dingley v. Oler,117 U.S. 490. The plaintiff testified that he was not discharged, and stated what was said and done to prevent him from working, and on his evidence the jury based their verdict in his favor, and thus it was impliedly found that he was not discharged, and we think the evidence warranted the finding. If the defendant desired to discharge the plaintiff, he should have told him that he was discharged. Instead of doing this, he seems to have adopted a course by which, if he was sued for a breach of the contract, he might plausibly say: "You have mistaken your remedy. I did not discharge you." And if, on the other hand, the suit should be on the contract, he might say: "You should have sued as for a breach of the contract, for I discharged you, and thus broke my agreement." Where it is admitted that the plaintiff is entitled to recover in some form of action this court will not be overnice in its distinctions as to what form should be pursued. On the circumstances presented we decline to interfere with the judgment on any theory of mistake as to remedy. The law touching this point is clearly laid down in the former case of Stone v.Bancroft, 112 Cal. 652, and need not be again repeated. The evidence showing that there was no discharge is fully as strong here as it was in that case, and there it was conceded *Page 84 by appellant that there was no discharge, but it was contended that Stone had withdrawn from the contract and abandoned the employment.
2. The evidence tended to show that plaintiff, during a small portion of the period covered by the suit, assisted another in the publication and sale of a medical book entitled "Femina," and it is contended that this was a violation of plaintiff's contract "to devote his whole time" to the historical works of Bancroft. It appears that Stone was at all times ready and willing to fully perform his contract with Bancroft, but was prevented from so doing. He was left, then, either to remain idle or work at something else. This work did not "interfere with his efforts on behalf of the said History Company." Bancroft was in no way injured by Stone working at something else when he was not permitted to work under the contract, and cannot be heard to complain thereat. What plaintiff did in connection with the "Femina" publication did not, therefore, constitute a substantial breach of his contract with appellant, and the jury were warranted in their conclusion to that effect. (Hermann v.Littlefield, 109 Cal. 430.) This same question, on practically the same evidence, was passed on adversely to appellant's contention in the former case of Stone v. Bancroft, 112 Cal. 652.
3. Appellant's next contention is, that by the terms of the contract plaintiff could recover nothing until the expiration of the ten years' service contemplated by said contract. There is no merit in this contention. This was a contract of hiring for the period of ten years, with compensation fixed at $350 per month, and that amount was due and owing at the conclusion of each month's service. There is nothing in the contract to indicate an intention as to the times of payment otherwise than as above stated.
4. Appellant's last contention is based on section 1980 of the Civil Code, which provides as follows. "A contract to render personal service, other than a contract of apprenticeship, as provided in the chapter on Master and Servant, cannot be enforcedas against the employee beyond the term of two years from the commencement of service under it; but if the employee voluntarily continues his service under it beyond that time, the contract may be referred to as affording a presumptive measure of the compensation." *Page 85
There is nothing in this contention, because, — 1. The statute was not pleaded; and 2. It would not have been a bar or defense to this action if it had been pleaded.
The judgment and order should be affirmed.
Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Garoutte, J., Harrison, J., Van Dyke, J.