tion for the jury as to whether such quit- | by which the defendant was to pay the plainting 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.

tiff 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 Davis v. Ayres, 9 Ala. 293; Fowler v. Ar- reciting the plaintiff's claim for damages and mour, 24 Ala. 194; Strauss v. Meertief, 64 the earlier agreements, it was agreed "in Ala. 306, 38 Am. Rep. 8; Wilkinson v. Black, view [evidently a misprint for "in lieu"] of 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 Ark."wages from this date are to be $65 a month" 671; Rogers v. Parham, 8 Ga. 190; Bassett v. French, 10 Misc. 672; Hamilton v. Love (Ind.) 43 N. E. 873; Zender v. Seliger Toothill Co. 17 Misc. 126; Gordon v. Brewster, 7 Wis. 355; Sutherland v. Wyer, 67 Me. 64; Prichard v. Martin, 27 Miss. 305; Darst v. Mathieson Alkali Works, 81 Fed. Rep. 284. [7] *Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: In the circuit court of the United States, a verdict and judgment were rendered for the plaintiff for a less amount of damages than The effect of the provisions and recitals of he claimed; and each party alleged excep- the contract sued on may be summed up tions to rulings and instructions of the thus: The successive agreements between the judge, and sued out a writ of error from the parties were all made with a view to settle circuit court of appeals. That court held and compromise the plaintiff's claim against that the defendant's demurrer to the com- the defendant for personal injuries, caused to plaint should have been sustained, and there-him by the defendant's cars while he was in fore 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 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 nine, 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)

(the increase of wages being apparently intended as an equivalent for the provision, now omitted, for house rent or supplies from the commissary), and that he was to have, free of charge, his fuel and the benefit of the garden; and the plaintiff, on his part, agreed to release the defendant from any and all liability for the accident, or for the injuries resulting to him from it or from the effects of it; and that this should be a full and satisfactory settlement of all claims which he might have against the defendant.

its service as a machinist, and seriously im-
pairing his ability to work. By each agree-
ment, the defendant was to pay him certain [9]
wages, and to furnish him with certain sup-
plies. The supplies to be furnished were evi-
dently a minor consideration, and require no
The more important
particular discussion.
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 suc-
ceeding 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 ac-
cident, that is, $60 a month." That agree-
ment must be considered as a mere modifica-
tion 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

[10]

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 de
the 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 or-
that this should be a full and satisfactory der to assist the jury in making such an es-
settlement 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 an-
nuity, are competent evidence" (Vicksburg
& M. Railroad Co. v. Putnam, 118 U. S. 545,
554 [30: 257, 258]); and that in an action
for breach of contract "the amount which
would have been received, if the contract
had been kept, is the measure of damages if
the contract is broken." Benjamin v. Hil-
liard, 23 How. 149, 167 [16: 518, 522].

The only reasonable interpretation of this contract is that the defendant promised to pay the plaintiff wages at the rate of $65 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 [35 L. R. A. 512].

*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 permanent ly 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 juIt appears to us to be equally clear that the dicial court of Massachusetts. Mr. Justice circuit court of the United States erred in Field, in delivering judgment, said: “In an excluding the evidence offered by the plain-action for the breach of a contract to suptiff, in restricting his damages to the wages due and unpaid at the time of the trial, and in declining to instruct the jury as he requested.

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

port the plaintiff during his life, if the con-
tract is regarded as still subsisting, the dam-
ages are assessed up to the date of the writ, [12]
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 to-
tal 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 per-
forming the contract in the future. as well

as in the past. The value of the contract | was rendered thereon. The defendant apto the plaintiff at the time it is broken may pealed, contending that, if the plaintiff was be somewhat indefinite, because the duration entitled to recover at all, she could only reof the life of the plaintiff is uncertain; but cover for the time prior to the commence uncertainty in the duration of a life has not, ment of the action, or, at most, to the time of since the adoption of life tables, been re- trial; and that, as to the future, it was imgarded as a reason why full relief in dam- possible to ascertain the damages, as the duages should not be afforded for a failure to ration of life was uncertain, and a further perform a contract which by its terms was uncertainty arose from the future physical to continue during life. When the defend- condition of the person. But the court of ant, for example, absolutely refuses to per- appeals, in an opinion delivered by Judge form such a contract, after the time for en- Grover, affirmed the judgment, saying: tering upon the performance has begun, it "Here the contract of the testator was to would be a great hardship to compel the support the plaintiff during her life. That plaintiff to be ready, at all times during his was a continuing contract during that life, to be supported by the defendant, if the period; but the contract was entire, and a defendant should at any time change his total breach put an end to it, and gave the mind; and to hold that he must resort to plaintiff a right to recover an equivalent in successive actions from time to time to ob- damages, which equivalent was the present tain his damages piecemeal, or else leave them value of her contract." "It, may be further [14] to be recovered as an entirety by his personal remarked that in actions for personal injurepresentatives after his death. Daniels v. ries the constant practice is to allow a recov Newton, 114 Mass. 530 [19 Am. Rep. 384], ery for such prospective damages as the jury decides that an absolute refusal to perform are satisfied the party will sustain, notwitha contract, before the performance is due by standing the uncertainty of the duration of the terms of the contract, is not a present his life and other contingencies which may breach of the contract for which any action possibly affect the amount." 55 N. Y. 597, can be maintained; but it does not decide 598. Šee also Remelee v. Hall, 31 Vt. 582 that an absolute refusal to perform a con- [76 Am. Dec. 140]; Sutherland v. Wyer, 67 tract, after the time and under the condi- Me. 64. tions in which the plaintiff is entitled to require performance, is not a breach of the contract, even although the contract is by its terms to continue in the future." 133 Mass. 75, 76. It is proper to remark that the point decided in Daniels v. Newton was left open in Dingley v. Oler, 117 U. S. 490, 503,[29: 984, 988], and has never been brought into judgment in this court.

In East Tennessee, V. & G. Railroad Co. v. Staub, 7 Lea, 397, the facts were singularly like those in the case at bar. The plaintiff, having, while in the employ of the defendant railroad company as an engineer, and in the discharge of his duties as such, received serious injuries by a collision between his locomotive engine and another train, and 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 probabilities of life at the plaintiff's age; and instructed the jury that, if the plaintiff was turned out in violation of the contract, with out any misconduct on her part, she was entitled to recover damages from the breach of the contract to the time of trial, deducting what wages she might have earned during that time; and also to recover for her future support and maintenance, as to which the jury were instructed as follows: "Your verdict is all she can ever recover, no matter how long she may live. That ends the contract between these parties; and you will decide, considering her age, her health, her condition in life, and the circumstances under which she is placed, how long she will probably live, and how much service she can probably perform in the future, and say how much more it will cost her to support herself than she will be able to earn, and allow her to recover for such sum." The verdict was for the plaintiff, and judgment

fendant agreed to pay him a certain specified sum per day, regular wages paid to machinists, whether he labored or not; and the contract was to continue as long as the injuries should last. For some time after this agreement, the plaintiff continued, at intervals, to perform light work for the defendant, receiving pay, however, only for the time he actually worked; and the defendant then denied any liability under the agreement, and refused to allow the plaintiff to continue the service under it. The supreme court of Tennessee held that the plaintiff was entitled to recover in one action the entire damages, not only for wages already due and unpaid, but also damages to the extent of the benefit that he would probably have realized under the contract; and, speaking by Judge McFarland, said: "It is a mistake to suppose, as has been done in argument, that because, in estimating the damages, we look to the probable course of events after the suit is brought, we are therefore allowing damages

8. A recital in a written declaration of gift | R. 5 Eq. 376; Teegarden v. Lewis, 145 Ind. to the donor's daughters, that it was made 98.

"voluntarily, without suggestion from any. From the relation of the parties, no such one," and the failure to disclose the gift to construction as claimed by the complainants other relatives, will not create a suspicion of is placed upon the acts of those who occupy undue influence, where the donor had prevlously learned of the charge by one of the somewhat similar relations with the donor other relatives, that she had been unduly in- to those which existed here. fuenced in making a will.

Hunter v. Atkins, 3 Myl. & K. 113; Sayre v. Hughes, L. R. 5 Eq. 376; Leddel v. Starr, 20 N. J. Eq. 274; Conley v. Nailer, 118 U. S. 127, 30 L. ed. 112; Mackall v. Mackall, Feb-135 U. S. 167, 34 L. ed. 84; Murray v. Hilton, 8 App. D. C. 281; Hepworth v. Hepworth, L. R. 11 Eq. 10; Saufley v. Jackson,