day of May, 1888, that they would furnish me such supplies from the commissary at No. 2 prison, as I might choose to take, pay me regular wages while I was disabled, and give me my coal and wood for fuel at my dwelling, and the benefit of the convict gar den at No. 2; and whereas said proposition was accepted by me, and carried out by the said company; and whereas in May, 1889, after I had resumed work, a further proposition was made to me to give me work, such as I could do, paying me therefor the wages paid me before said accident, that is, $60 per month, and in addition free house rent for in lieu of house rent a certain amount of supplies from the convict commissary at No. 2 prison, which supplies were to amount to about the sum paid by me for house rent]; and whereas said agreement has been faithfully kept by both parties; and whereas on the 4th day of June, 1890, it is mutually agreed between myself and the said company that it will be better to give me the house rent than the supplies of about equal amount from the commissary; now therefore it is agreed, in view of the above propositions, which have been faithfully carried out, that my wages from this date are to be $65 a month, and in addition I am to have, free of charge, my coal and wood necessary for my household use at my dwelling, and the same benefit from the garden as is had by others who are allowed the garden privilege; and I on my part agree and bind myself to release the said company from any and all liability for said accident, or from the injuries resulting to me from it or from the effects of it, and agree that this is to be a full and satisfactory settlement of any and all claims which I might have against said company.

in the sum of $50,000, for the defendant's breach and abandonment of the contract.

The defendant demurred to the complaint, upon the ground that the contract set out therein was one of hiring, terminable at the will of either party, and not one of hiring for life, as alleged in the complaint; and that it appeared from the obligations of the complaint, that the defendant, in terminating the contract of hiring, had only exercised its legal right under the contract. The court sustained the demurrer, and the plaintiff declining to amend his complaint, rendered judgment for the defendant; and the plaintiff on February 21, 1894, appealed from that judgment to the supreme court of Alabama.

The record transmitted to this court does not show any further proceedings in the supreme court of Alabama. But the official reports of its decisions show that at November term, 1895, it reversed that judgment, and remanded the case to the county court. Pierce v. Tennessee Coal, I. & R. Co. 110 Ala. 533. And the record before this court necessarily implies that fact, by setting forth that in March, 1896, on motion of the de fendant, suggesting that from prejudice and local influence it would not be able to obtain justice in the state courts, the case was removed from the county court into the circuit court of the United States for the southern division of the northern district of Alabama; and a motion to remand the case to the state court was made by the plaintiff (on what ground did not appear in the record) and was overruled.

In the circuit court of the United States, on January 4, 1897, the following proceedings took place: The demurrer to the complaint was renewed by the defendant, and overruled by the court. The plaintiff then The complaint set out the contract, except amended his complaint by inserting, in the the clause above printed in brackets; and copy of the contract set forth therein, the alleged that by this contract the defendant words above printed in brackets; and a debecame liable to pay the plaintiff monthly murrer to the amended complaint was filed during his life the wages therein stipulated, and overruled. In answer to this complaint and to furnish him with coal and wood and the defendant filed two pleas: 1st. A denial allow him the privilege of the garden, as of each and every allegation of the comtherein agreed; that the plaintiff had always plaint; 2d. "The defendant, *for further an- [5] been ready and offered to do for the defend-swer to the complaint, says that the plainant such work given to him as he was able tiff, under and by the terms of the contract to do, and had labored at the same for such set out in the complaint, contracted to perreasonable time as he was able to work and form for the defendant during the term bound to work under this contract; that by thereof such service as he was able to perthe injuries received by him from the acci- form, in consideration for the promises made dent mentioned therein he was permanently by defendant therein; and the defendant disabled in the use of his legs and hands, avers that the plaintiff thereafter became and otherwise so injured as to be incapaci- able to perform service for the defendant, tated to do more work than he had done and and did in fact perform such service for some had offered to do; but that the defendant, time thereafter, and that, while engaged in without any reasonable ground for so doing, the performance of such service, the plainabandoned the contract and refused to carry tiff voluntarily and without excuse therefor it out, claiming that the defendant was un- refused to further perform such service as der no obligation to pay to the plaintiff the he was able to perform, and was in fact perwages therein stipulated longer than suited forming for the defendant, as required by its pleasure; and had wholly and purposely said contract, and the defendant thereupon disregarded and refused to abide by the ob- discharged the plaintiff from its service; and [4]ligations of the contract *for the period of the defendant avers that the plaintiff failed six months next before the commencement of to comply with the conditions imposed upon the suit, and had entirely abandoned the him by said contract." The plaintiff joined contract and discharged the plaintiff from issue on the first plea; and demurred to the its service. The plaintiff claimed damages, second plea, upon the ground that it did not

go to the whole consideration of the contract, and was no answer to the entire action; and the court sustained his demurrer. The defendant, for further answer, and by way of recoupment, pleaded that on May 3, 1891, the plaintiff, voluntarily and without excuse, refused to perform such labor as he was able to perform and was in fact performing for the defendant, as required by the contract; and since that time had continued to refuse to perform and had not in fact performed such service, or any part thereof; to the damage of the defendant in the sum of $50,000.

A bill of exceptions, tendered by the plaintiff and allowed by the court, showed that at the trial before the jury the following proceedings were had:

The plaintiff introduced and read in evidence the contract sued on, and introduced evidence tending to prove the allegations of the complaint. He also offered evidence that, at the time of his discharge by the defendant from its employment in May, 1891, he was fifty-five years of age, and that he was then and had since been in good health, and addicted to no habits of drinking or otherwise, affecting his health and expectancy of life; and introduced the American [6] tables of mortality used by insurance companies, showing his expectancy of life at the time of his discharge, and at the time of the trial.

a writ of error from the circuit court of appeals for the fifth circuit.

That court was of opinion that the contract sued on was for "an employment by the month, and, therefore, like every other such employment, subject to be discontinued, at the will of either party, at the expiration of any month, or at any time for adequate cause; and consequently that there was error *in overruling the demurrer to the complaint; [7] and upon that ground, without passing upon any other question in the case, reversed the judgment of the circuit court of the United States, and remanded the case to that court for further proceedings, Judge Pardee dissenting. 52 U. S. App. 355, 365. The plaintiff thereupon applied for and obtained a writ of certiorari from this court. 168 U. S. 709.

But the court ruled that no recovery could be allowed on the contract, beyond the instalments of wages due and in default up to the date of the trial; and, upon the defendant's motion, excluded all evidence of the plaintiff's age, health, and expectancy of life, "on the ground that it was immaterial and irrelevant, and because damages for the expectancy of life was a matter too vague and uncertain to be allowed."

Mr. W. A. Gunter, for the petitioner: On the total renunciation of a contract by party thereto, the person against whom it is renounced, if in other respects entitled to damages, is entitled to recover full and final damages in one action.

a

Schell v. Plumb, 55 N. Y. 592; Howard College v. Turner, 71 Ala. 434; Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 30 L. ed. 257; Shover v. Myrick, 4 Ind. App. 7; Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Kentucky & I. Cement Co. v. Cleveland, Ind. App. 171.

The usual measure of damages upon a breach of a contract is "the amount that would have been received if the contract had been kept."

Benjamin v. Hilliard, 23 How. 149, 16 L. ed. 518.

The standard life and annuity tables, showing at any age the probable duration of life and the present value of a life annuity, are competent evidence.

The plaintiff duly excepted to the ruling and to the exclusion of evidence; and, to present the same point, asked the court to give, and duly excepted to its refusal to give, the following instruction to the jury: "If the defendant, after making the contract sued on and before the suit, refused further to pay the plaintiff and to furnish the articles stipulated to be furnished, and refused to employ the plaintiff, and discharged him, the plaintiff is entitled to the full benefit of his contract, which is the present value of the money agreed to be paid and the articles to be furnished under the contract for the period of his life, if his disability is permanent, less such sum as the jury may find the plaintiff may be able to earn in the future, and may have been able heretofore to earn, and less such loss as the defendant may have sustained from the loss of the plaintiff's service without the defendant's fault."

The defendant also tendered and was allowed a bill of exceptions, presenting substantially, though in different form, the questions involved in the plaintiff's case, and the contents of which therefore need not be particularly stated.

The jury returned a verdict for the plain-clining further to pay the compensation protiff in the sum of $5,893, upon which judg.vided for in it. The facts as to plaintiff's ment was rendered. Each party sued out quitting work were such as to make it a quesU. S.. Book 43. 593

38

Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 30 L. ed. 257; The D. S. Gregory, 2 Ben. 226, Fed. Cas. No. 4,100; Foster v. Hilliard, 1 Story, 77, Fed. Cas. No. 4,972; Cooke v. Cook, 110 Ala. 567; Sauter v. New York C. & H. R. R. Co. 66 N. Y. 50, 23 Am. Rep. 18; Parker v. Russell, 133 Mass. 74; Amos v. Oakley, 131 Mass. 413; Remelee v. Hall, 31 Vt. 582, 76 Am. Dec. 140; Mullaly v. Austin, 97 Mass. 30; People v. Security L. Ins. & Annuity Co. 78 N. Y. 128, 34 Am. Rep. 522.

Messrs. Walker Percy and William I. Grubb, for respondent:

The contract sued on was for an indefinite time, and terminable at the will of either party thereto.

Franklin Min. Co. v. Harris, 24 Mich. 115; Parsons on Contracts, 519; Howard v. East Tennessee, V. & G. R. Co. 91 Ala. 270; Clark v. Ryan, 95 Ala. 409; De Briar v. Minturn, 1 Cal. 450; Tatterson v. Suffolk Mfg. Co. 106 Mass. 56.

The wrongful quitting of the work imposed upon plaintiff by the terms of the contract sued on would justify the defendant in refusing to proceed with the contract, and in de

tion for the jury as to whether such quitting was with legal excuse.

Darst v. Mathieson Alkali Works, 81 Fed. Rep. 284; Pape v. Lathrop, 18 Ind. App. 633; Norris v. Moore, 3 Ala. 677; Spain v. Arnott, 2 Starkie, 256; Lantry v. Parks, 8 Cow. 63; Winn v. Southgate, 17 Vt. 355; Posey v. Garth, 7 Mo. 94, 37 Am. Dec. 183; Renno v. Bennett, 3 Q. B. 768; Turner v. Mason, 14 Mees. & W. 112; Ford v. Danks, 16 La. Ann. 119.

In an action which treats the contract as completely broken, and goes for damages for the breach of it in solido, the measure of damage is the loss suffered by the servant up to the time of the trial, deducting therefrom what wages he earned, or could by the exercise of reasonable diligence have earned, in the interim, in a similar character of employment.

by which the defendant was to pay the plaintiff regular wages while he was disabled, and also to furnish him with such supplies as he might choose to get from a commissary, and to give him coal and wood for fuel at his dwelling house, and the benefit of a garden belonging to the defendant. That agreement was carried out by the defendant until May, 1889, and was then, after the plaintiff had resumed work, modified by stipulating that the defendant should give the plaintiff such work as he could do, should pay him therefor wages of $60 a month, as before the accident, and should give him the rent of his house, or, in lieu of house rent, an equivalent amount of supplies from the commissary; and the agreement, as so modified, was faithfully kept by both parties until June 4, 1890. Finally, on that day, the parties entered into the written contract sued on, by which, after reciting the plaintiff's claim for damages and the earlier agreements, it was agreed “in view [evidently a misprint for “in lieu"] of

Davis v. Ayres, 9 Ala. 293; Fowler v. Armour, 24 Ala. 194; Strauss v. Meertief, 64 Ala. 306, 38 Am. Rep. 8; Wilkinson v. Black, 80 Ala. 329; Liddell v. Chidester, 84 Ala. the above propositions, which have been 508; Everson v. Powers, 89 N. Y. 527, 42 faithfully carried out," that the plaintiff's Am. Rep. 319; McDaniel v. Parks, 19 Árk."wages from this date are to be $65 a month" 671; Rogers v. Parham, 8 Ga. 190; Bassett (the increase of wages being apparently inv. French, 10 Misc. 672; Hamilton v. Love tended as an equivalent for the provision, (Ind.) 43 N. E. 873; Zender v. Seliger Toot- now omitted, for house rent or supplies from hill Co. 17 Misc. 126; Gordon v. Brewster, the commissary), and that he was to have, 7 Wis. 355; Sutherland v. Wyer, 67 Me. 64; free of charge, his fuel and the benefit of the Prichard v. Martin, 27 Miss. 305; Darst v. garden; and the plaintiff, on his part, agreed Mathieson Alkali Works, 81 Fed. Rep. 284. to release the defendant from any and all liability for the accident, or for the injuries re[7] *Mr. Justice Gray, after stating the case sulting to him from it or from the effects of as above, delivered the opinion of the court: it; and that this should be a full and satisIn the circuit court of the United States, a factory settlement of all claims which he verdict and judgment were rendered for the might have against the defendant. plaintiff for a less amount of damages than he claimed; and each party alleged exceptions to rulings and instructions of the judge, and sued out a writ of error from the circuit court of appeals. That court held that the defendant's demurrer to the complaint should have been sustained, and therefore reversed the judgment of the circuit court, and remanded the case for further proceedings. A writ of certiorari to review the judgment of the circuit court of appeals was thereupon applied for by the plaintiff, and was granted by this court.

The fundamental question in this case is whether the contract in suit, made by the parties on June 4, 1890, is a contract intended to last during the plaintiff's life, or is a mere contract of hiring from month to month, terminable at the pleasure of either party at the end of any month.

The effect of the provisions and recitals of the contract sued on may be summed up thus: The successive agreements between the parties were all made with a view to settle and compromise the plaintiff's claim against the defendant for personal injuries, caused to him by the defendant's cars while he was in its service as a machinist, and seriously impairing his ability to work. By each agree ment, the defendant was to pay him certain [9] wages, and to furnish him with certain supplies. The supplies to be furnished were evidently a minor consideration, and require no particular discussion. The more important matter is the wages. The defendant at first agreed to pay the plaintiff "regular wages while he was disabled." The agreement, in that form, would clearly last so long as he continued to be disabled, and could not have been put an end to by the defendant without the plaintiff's consent. By the next succeeding agreement, made after the plaintiff had resumed work, the defendant was "to give him work, such as he could do, paying him therefor the wages paid before said accident, that is, $60 a month." That agreement must be considered as a mere modification of the first, requiring the plaintiff to do such work as he could do, but showing that he was still much disabled by his injuries. By the final agreement in writing of June 4, 1890, after reciting the plaintiff's claim for damages for these injuries, as well as the earlier agreements, his wages were increased by a stipulation that his "wages from this

The facts bearing upon this question, as appearing upon the face of this contract, are as follows: In May, 1888, the plaintiff, while employed as a machinist in the defendant's coal mine in Alabama, was seriously hurt by a trip of tram cars on the main slope of the mine, under circumstances which the plaintiff claimed, and the defendant denied, rendered it liable to him in damages. The parties were desirous of settling and [8] *compromising the plaintiff's claim for damages for the injuries, and had repeated negotiations with that object. In November, 1888, they made an agreement (which does not appear to have been reduced to writing)

date are to be $65 a month," and he expressly | loss of what he would otherwise have earned released the defendant from all liability for in his trade or profession, and has been dethe injuries resulting to him from the ac-prived of the capacity of earning by the cident or from the effects thereof, and agreed wrongful act of the defendant," and "in orthat this should be a full and satisfactory der to assist the jury in making such an essettlement of all his claims against the de- timate, standard life and annuity tables, fendant. showing at any age the probable duration [11] of life, and the present value of a life annuity, are competent evidence" (Vicksburg

The only reasonable interpretation of this contract is that the defendant promised to pay the plaintiff wages at the rate of $65 ad M. Railroad Co. v. Putnam, 118 U. S. 545, month, and to allow him his fuel and the 554 [30: 257, 258]); and that in an action benefit of the garden so long as his disability for breach of contract "the amount which to do full work continued; and that, in con- would have been received, if the contract sideration of these promises of the defend- had been kept, is the measure of damages if ant, the plaintiff agreed to do such work as the contract is broken." Benjamin v. Hil he could, and to release the defendant from liard, 23 How. 149, 167 [16: 518, 522]. 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 [35 L. R. A. 512]. [10] *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 bound the defendant to its performance, so long as the plaintiff should be disabled by reason of the injuries he received, which, under 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. As we concur in that opinion, it is unnecessary to consider how far it should be considered as binding upon us in this case. See Williams v. Conger, 125 U. S. 397, 418 [31: 778, 788]; Gardner v. Michigan Central Railroad Co. 150 U. S. 349 [37: 1107]; Great Western Teleg. Co. v. Burnham, 162 U. S. 339, 344 [40: 991, 993], and cases cited; Moulton v. Reid, 54

Ala. 320.

But the recent tendency of judicial decisions in this country, in actions of contract, as well as in actions of tort, has been towards allowing entire damages to be recovered, once for all, in a single action, and thus avoiding the embarrassment and annoyance of repeated litigation. This especially appears by well-considered opinions in cases of agreements to furnish support or to pay wages, a few only of which need be referred to.

In Parker v. Russell, 133 Mass. 74, the declaration alleged that, in consideration of a conveyance by the plaintiff to the defendant of certain real estate, the defendant agreed to support him during his natural life; and that the defendant accepted the conveyance, and occupied the real estate, but neglected and refused to perform the agreement. The plaintiff proved the contract; and introduced evidence that the defendant did support him in the defendant's house for five years and until the house was destroyed by fire, and has since furnished him no aid or support. The jury were instructed that "if the defndant for a period of about two years neglected to furnish aid or support to the plaintiff, without any fault of the plaintiff, the plaintiff might treat the contract as at an end, and recover damages for the breach of the contract as a whole; and that the plaintiff would be entitled to recover compensation for the past failure of the defendant to furnish him aid and support, and full indemnity for his future support." Exceptions taken by the defendant to this instruction were overruled by the supreme judicial court of Massachusetts. Mr. Justice Field, in delivering judgment, said: "In an

It appears to us to be equally clear that the eircuit court of the United States erred in excluding the evidence offered by the plain-action for the breach of a contract to suptiff, in restricting his damages to the wages port the plaintiff during his life, if the condue and unpaid at the time of the trial, and tract is regarded as still subsisting, the damin declining to instruct the jury as he re- ages are assessed up to the date of the writ, [12] quested. and not up to the time when the verdict is rendered. But if the breach has been such that the plaintiff has the right to treat the contract as absolutely and finally broken by the defendant, and he so elects to treat it, the damages are assessed as of a total breach of an entire contract. Such damages are not special or prospective damages, but are the damages naturally resulting from a total breach of the contract, and are suffered when the contract is broken, and are assessed as of that time. From the nature of the contract, they include damages for not performing the contract in the future. as well

It follows that the judgment of the United States circuit court of appeals in this case was erroneous, and must be reversed.

Upon this point the authorities are somewhat conflicting; and there is little to be found in the decisions of this court, having any bearing upon it, beyond the affirmance of the general propositions that "in an action for a personal injury the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by the defendant's negligence, including, not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the

was rendered thereon. The defendant appealed, contending that, if the plaintiff was entitled to recover at all, she could only recover for the time prior to the commence ment of the action, or, at most, to the time of trial; and that, as to the future, it was impossible to ascertain the damages, as the duration of life was uncertain, and a further uncertainty arose from the future physical

as in the past. The value of the contract to the plaintiff at the time it is broken may be somewhat indefinite, because the duration of the life of the plaintiff is uncertain; but uncertainty in the duration of a life has not, since the adoption of life tables, been regarded as a reason why full relief in damages should not be afforded for a failure to perform a contract which by its terms was to continue during life. When the defend-condition of the person. But the court of appeals, in an opinion delivered by Judge Grover, affirmed the judgment, saying: "Here the contract of the testator was to support the plaintiff during her life. That was a continuing contract during that period; but the contract was entire, and a total breach put an end to it, and gave the plaintiff a right to recover an equivalent in damages, which equivalent was the present value of her contract." "It, may be further [14] remarked that in actions for personal injuries the constant practice is to allow a recovery for such prospective damages as the jury are satisfied the party will sustain, notwithstanding the uncertainty of the duration of his life and other contingencies which may possibly affect the amount." 55 N. Y. 597, 598. Šee also Remelee v. Hall, 31 Vt. 582 [76 Am. Dec. 140]; Sutherland v. Wyer, 67 Me. 64.

ant, for example, absolutely refuses to perform such a contract, after the time for entering upon the performance has begun, it would be a great hardship to compel the plaintiff to be ready, at all times during his life, to be supported by the defendant, if the defendant should at any time change his mind; and to hold that he must resort to successive actions from time to time to obtain his damages piecemeal, or else leave them to be recovered as an entirety by his personal representatives after his death. Daniels v. Newton, 114 Mass. 530 [19 Am. Rep. 384], decides that an absolute refusal to perform a contract, before the performance is due by the terms of the contract, is not a present breach of the contract for which any action can be maintained; but it does not decide that an absolute refusal to perform a contract, after the time and under the conditions in which the plaintiff is entitled to re- In East Tennessee, V. & G. Railroad Co. v. quire performance, is not a breach of the Staub, 7 Lea, 397, the facts were singularly contract, even although the contract is by its like those in the case at bar. The plaintiff, terms to continue in the future." 133 Mass. having, while in the employ of the defendant 75, 76. It is proper to remark that the point railroad company as an engineer, and in the decided in Daniels v. Newton was left open discharge of his duties as such, received in Dingley v. Oler, 117 U. S. 490, 503,[29: serious injuries by a collision between his 984, 988], and has never been brought into locomotive engine and another train, and judgment in this court. having brought an action to recover dam[13] *So in Schell v. Plumb, 55 N. Y. 592, the ages for those injuries, an agreement, by action was by a woman, for a breach of an way of compromise, was entered into, by oral contract, by which the defendant's tes- which, in consideration of the plaintiff's tator agreed to support the plaintiff during agreeing to dismiss his suit, the defendant her life, and she agreed to render what serv- agreed to pay the costs thereof and the plainices she could towards paying for her sup- tiff's attorney's fee and physician's bills; port. The contract was carried out for some and further agreed to retain him in its emyears; and the defendant then turned her ploy, the plaintiff working when, in his own away, and refused to support her. At the opinion he was able to do so, and performtrial the judge, against the defendant's ob- ing only such services as in his disabled conjection, admitted in evidence the Northamp-dition he might be able to perform; the de ton tables of life annuities, to show the prob- fendant agreed to pay him a certain specified abilities of life at the plaintiff's age; and in- sum per day, regular wages paid to mastructed the jury that, if the plaintiff was chinists, whether he labored or not; and the turned out in violation of the contract, with- contract was to continue as long as the inout any misconduct on her part, she was en- juries should last. For some time after this titled to recover damages from the breach of agreement, the plaintiff continued, at interthe contract to the time of trial, deducting vals, to perform light work for the defendwhat wages she might have earned during ant, receiving pay, however, only for the time that time; and also to recover for her future he actually worked; and the defendant then support and maintenance, as to which the denied any liability under the agreement, jury were instructed as follows: "Your and refused to allow the plaintiff to continue verdict is all she can ever recover, no matter the service under it. The supreme court of how long she may live. That ends the con- Tennessee held that the plaintiff was entitled tract between these parties; and you will to recover in one action the entire damages, decide, considering her age, her health, her not only for wages already due and unpaid, condition in life, and the circumstances un- but also damages to the extent of the benefit der which she is placed, how lorg she will that he would probably have realized under probably live, and how much service she can the contract; and, speaking by Judge Mcprobably perform in the future. and say Farland, said: "It is a mistake to suppose, how much more it will cost her to support as has been done in argument, that because, herself than she will be able to earn, and al- in estimating the damages, we look to the low her to recover for such sum." The ver- probable course of events after the suit is dict was for the plaintiff, and judgment' brought, we are therefore allowing damages