G. W. Hearne v. B. B. Garrett, 49 Tex. 619

Moore, Associate Justice. Where one is employed to perform some stipulated work, or to labor for a specific period of time, and, after part performance of the contract on his’ part, he is wrongfully prevented -from completing the work contracted for, or laboring for the full period of time stipulated, it seems fully settled that the employee may treat the contract as abandoned, and sue for the reasonable value of the labor performed or service actually rendered. Where a contract has been wrongfully and without sufficient cause broken or annulled by one party, it may be disregarded by the other.

Hence, the employee may in such case treat the contract as abandoned, and bring suit for the value of the work done or service performed by him; and in such case, an employer is estopped from setting up the contract as a bar to the employee’s recovery for the reasonable value of the labor and service rendered. But while the employee may elect to treat the contract as if it never existed, he is not required or compelled to do so; and, if he prefers it, he 'may sue on the contract for the damages sustained by reason of its breach. (Meade v. Rutledge, 11 Tex., 44; Hassell v. Nutt, 14 Tex., 260; Waco Tap R. R. Co. v.

Shirley, 45 Tex., 355.) The wrongful discharge of the employee, or refusal to allow him to perform the contract, puts an end to it, and consequently entitles him to an immediate action for its breach. But although a tender of performance by the employee and refusal by the employer gives an immediate right of action on the contract, (Sedg. on Dam., 266, 267,) nevertheless it is not tantamount to performance, in determining the measure of damages to which the plaintiff is entitled, unless the contract is clearly not apportionable.

Ordinarily, the measure of damages, where the employee has been wrongfully dismissed, is the loss sustained by his being prevented from completing the contract. This evidently requires that he should be paid pro rata for the work done or service rendered, as stipulated in the contract, as well as the profits which it is made to appear he would have realized by its performance. (Waco Tap R. R. Co. v.

Shirley, 45 Tex., 355.) When the employee waits until the expiration of his term of employment, he may, in some cases, as held by this court, recover as damages the entire amount stipulated to be paid him under the contract, on proof that he had been unable to get other remunerative employment. (Meade v. Rutledge and Hassell v. Nutt, supra.) But this seems to me, on sound principle, to be merely an admissible means of ascertaining the loss sustained from the breach of the contract, rather than a fixed and determined measure of the damages to which the plaintiff is definitely and absolutely entitled.

An inspection of the petition shows that this suit was brought for damages alleged to have been sustained by the breach of the contract, and not for the value of the service performed, as appellant seems to suppose. The court therefore did not err in refusing to give the instructions asked by him, based upon this theory of the nature and object of the action. Nevertheless, the charge given by the court is not strictly accurate, or in entire conformity with the views herein expressed.

The jury were told, if the plaintiff had complied with his part of the contract, and was, without fault on his part, wrongfully discharged by the defendant, they would find for the plaintiff the value of his services during the time he labored for the defendant, and also the damages he suffered by. reason of the breach of the contract. But they were not instructed, as has been said they should have been, that they must take the contract as the standard for determining the value of the services rendered.

Hor does there seem to have been any evidence before the jury to guide them in determining or fixing the value of the services actually performed, or tending to prove the amount of profits which appellee might have realized, if he had been permitted to complete the contract; nor was there satisfactory evidence to show that appellee could not have got other approximately as valuable employment for the remainder of the year, after his discharge by appellant, whereby he could have realized a larger amount than appellant got credit for, if he had made proper exertions to do so.

Evidently the jury must.have supposed appellee entitled to recover the full amount contracted to be paid him for his services, less the amount admitted to have been realized • from other employments, upon the bare proof of the breach of the contract. To sustain the verdict on the evidence before ns, we would, in effect, have to hold that tender of performance is as effectual as actual performance, not only to give a right of action, but also in fixing the measure of damages. But this, as has been said, is not generally the fact. The judgment is reversed and the cause remanded. Reversed and remanded.