# Morgan v. Clinton State Bank

> Court of Appeals of Arkansas · June 28, 1995 · 50 Ark. App. 67

URL: https://www.frixlaw.com/law-library/cases/6552275

## Case

- **Full name:** Robert R. MORGAN v. CLINTON STATE BANK and Clinton Bankshares, Inc.
- **Court:** Court of Appeals of Arkansas
- **Decided:** June 28, 1995
- **Citations:** 50 Ark. App. 67; 900 S.W.2d 216; 1995 Ark. App. LEXIS 366
- **Precedential status:** Published
- **Opinion:** Concurrence by Mayfield
- **Judges:** Jennings, Mayfield, Robbins
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6552275

## Opinion text

Melvin Mayfield, Judge, concurring. I concur in the affir-mance of the trial court’s dismissal of appellant’s complaint for recovery of lost wages. However, I do not agree with the reasoning of that opinion. Actually, I think both the majority and dissenting opinions are based upon incorrect assumptions of the law. The law does not need to be changed — only properly applied.
The appellant in this case argues that the trial court erred in dismissing his claim. He says that an employee who brings an action for damages under a contract of employment and collects through the date of trial is not barred from bringing another action, after the expiration of the contract, to collect the damages due on the remainder of the contract.
The appellees contend, however, that an employee who recovers damages for breach of an employment contract before the expiration of the contract is barred from maintaining a subsequent action on the contract.
Both parties cite Van Winkle v. Satterfield, 58 Ark. 617 , 25 S.W. 1113 (1894). In that case our supreme court addressed the damages recoverable by an employee who has been wrongfully discharged before expiration of his term of employment. The court said:
A servant who has been wrongfully discharged by his employer before the time for which he was hired has expired has these remedies: “First, he may consider the contract as rescinded, and recover on a quantum meruit what his services were worth, deducting what he had received for the time during which he had worked. Second, he may wait until the end of the term, and then sue for the whole amount, less any sum which the defendant may have a right to recoup. Third, he may sue at once for breach of the contract of employment.” He, however, can adopt only one.
If he adopts the third remedy, he can recover the damages which he has sustained down to the day of the trial, which is limited to a compensation for the injury suffered by the breach of the contract. The loss of the wages which his employer agreed to pay him constitutes the injury. What, therefore, he has suffered by reason of the loss of the wages, as a rule, is the amount of the damages he is entitled to recover.
It is the breach, and not the time of the discharge, or when the action was brought, that gives the damage. If the consequences for which the law renders the employer responsible develops so as to create an absolute injury at the time of the trial, he is entitled to a compensation for such an injury. He cannot recover the damages he might suffer after the trial, for the obvious reasons they cannot be assessed in advance.
58 Ark. at 621-22 , 25 S.W. at 1114 (citations omitted).
I think the holding in Van Winkle is clear. The wrongfully discharged employee may (1) consider the contract as rescinded — annulled — and sue on quantum meruit for what the services he has performed are worth, after deducting any amount he has already been paid for those services; (2) he may wait until the end of the term of employment and sue for the whole amount he would have earned; or (3) he may sue at once for breach of his contract. However, he can have only one of the three alternatives.
Appellant argues that the court in Van Winkle held that a wrongfully terminated employee who elects to sue immediately to recover damages may collect damages only through the date of trial, and cites Jim Orr & Associates, Inc. v. Waters, 299 Ark. 526 , 773 S.W.2d 99 (1989), and School District No. 45, Pope County v. McClain, 185 Ark. 658 , 48 S.W.2d 841 (1932), in support of that contention. This, he contends, means he can sue again and recover the balance due him. However, Van Winkle states that the employee who adopts the third remedy may recover the “damages” he sustained. Further, Waters and McClain hold only that a wrongfully terminated employee who sues prior to the expiration of the contract is not entitled to recover thefull amount he would have earned under the contract, but they also hold that a wrongfully terminated employee may recover the damages he has sustained as a result of the breach of contract. And in McClain, the court instructed a verdict for a teacher for the two and one-half months she had taught up to the time of trial but refused to allow recovery for the four and one-half months still left on her contract. On appeal our supreme court said, “all that need be said is that she was not entitled to recover the full amount she would have earned under the contract . . . because she may have . . . obtained other employment which would reduce the amount of her recovery . ...” 185 Ark. at 660 , 48 S.W.2d at 842 .
In 11 Samuel Williston, A Treatise on the Law of Contracts § 1361A (3d ed. 1968), the author discusses the employee’s recovery for breach of contract where trial precedes the expiration of the contract.
“The plaintiff’s cause of action accrued when he was wrongfully discharged. His suit is not for wages, but for damages for the breach of his contract by the defendant. For this breach he can have but one action. In estimating his damages the jury have the right to consider the wages which he would have earned under the contract, the probability whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff’s working ability would continue, and any other uncertainties growing out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money in other work during the time. But it is not the law that damages that may be larger or smaller because of such uncertainties are not recoverable. The same kind of difficulty is encountered in the assessment of damages for personal injuries. All the elements which bear upon the matters involved in the prognostication are to be considered by the jury, and from the evidence in each case they are to form an opinion upon which all can agree, and to which, unless it is set aside by the court, the parties must submit.”
Id. at 319. The treatise then quotes from a case that quoted from Pierce v. Tennessee Coal, Iron and Railroad Co., 173 U.S. 1 (1898), which reversed a trial court holding that allowed damages only to date of trial in a breach of employment case. The Supreme Court said:
If these facts were proved to the satisfaction of the jury, the case would stand thus: The defendant committed an absolute breach of the contract at a time when the plaintiff was entitled to require performance. The plaintiff was not bound to wait to see if the defendant would change its decision and take him back into its service, or to resort to successive actions for damages from time to time, or to leave the whole of his damages to be recovered by his personal representative after his death. But he had the right to elect to treat the contract as absolutely and finally broken by the defendant; to maintain this action, once for all, as for a total breach of the entire contract; and to recover all that he would have received in the future, as well as in the past, if the contract had been kept. In so doing, he would simply recover the value of the contract to him at the time of the breach, including all the damages, past or future, resulting from the total breach of the contract. The difficulty and uncertainty of estimating damages that the plaintiff may suffer in the future is no greater in this action of contract than they would have been if he had sued the defendant, in an action of tort, to recover damages for the personal injuries sustained in its service, instead of settling and releasing those damages by the contract now sued on.
In assessing the plaintiff’s damages, deduction should, of course, be made of any sum that the plaintiff might have earned in the past or might earn in the future, as well as the amount of any loss that the defendant had sustained by the loss of the plaintiff’s services without the defendant’s fault.
Id. at 16 .
In Hemingway v. Grayling Lumber Co., 125 Ark. 400 , 188 S.W. 1186 (1916), the appellant brought suit for damages for breach of a contract for hauling logs for the remainder of 1915. On May 13, 1915, the appellees refused to permit the appellant to continue performance. On August 28, 1915, the appellant recovered judgment for damages for breach of contract for the period from May 13 through the date of the judgment. Subsequently the appellant sued for recovery of damages accruing since the date of judgment. The trial court dismissed the action and our supreme court affirmed. Our supreme court stated:
The complaint shows that the suit is upon the same contract for the breach of which an action for damages has already been maintained and that this action is prosecuted for the same breach of the contract, for damages accruing since the rendition of the first judgment. Its allegations show an entire breach of the contract and abandonment of its further performance by appellees, and no reason is disclosed why all the damages resulting from the alleged refusal of appellees to permit appellant to perform the contract did not accrue upon the breach thereof.
“Where a demand or right of action is in its nature entire and indivisible, it cannot be split up into several causes of action and sued piece-meal, or made the basis of as many separate suits; but a recovery for one part will bar a subsequent action for the whole, the residue, or another part.” (citations omitted)
125 Ark. 401 -02. See also Lisenby v. Farm Bureau Mutual Inc. Co., 245 Ark. 144 , 431 S.W.2d 484 (1968), 11 Samuel Williston, A Treatise on the Law of Contracts § 1361A, supra.
In the instant case, the appellant’s complaint states he has already brought suit for breach of the employment contract and recovered his total lost wages plus additional expenses related to the breach to the date of trial. Appellant’s complaint states no new cause of action and seeks only recovery of subsequent lost wages and compensation for other damages. I do not agree that the law in Arkansas required him to sue in his first suit for the damages sustained only up to that date measured only by the amount he would have been paid up to that time. To the contrary, he could have recovered at that time for all the damages sustained by the breach of the contract. This being true, it is clear that this second suit is barred under the view taken in Hemingway v. Grayling Lumber Co., supra.
Although, the appellant contends that his view of the law is supported by language found in Howard Brill, Arkansas Law of Damages § 20-1 (2nd ed. 1990), the short answer to this argument is that in a footnote to that section Mr. Brill recognizes that there is authority to suggest that a second suit would be subject to the defense that the plaintiff had only a single cause of action for breach of contract and could not split his cause of action.
Based upon my view of the law as stated above, I would affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6552275. Public record. Not legal advice.