The opinion
Separate Opinion.
GANTT, J.
I concur in the opinion of my learned brother Brace in every respect, except wherein it holds that the plaintiff could apportion his contract and sue for the same as for monthly payments up to the. time of the commencement of this action. As,I read the record, if there was any undertaking by defendant to compensate plaintiff pro rata for the services rendered, it was for his services in formulating and superintending the entire construction of the joint conduit, and as the undertaking was entire, the compensation, in the absence of a specific contract to pay in installments, or monthly, must also be one sum for the whole, and necessarily no action would lie until the work was completed, and in my opinion there can be no apportionment of the services on the showing made. [Hill v. Rich Hill Mining Co., 119 Mo. 9 ; Sinclair v. Bowles, 9 B. & C. 92; Cox v. Railroad, 44 Cal. 18 ; Quigley v. DeHaas, 82 Pa. St. 267; Barker v. Reagan, 4 Heisk. (Tenn.) 590.]
I am unable to find any evidence of an agreement to pay plaintiff by the month, and considering the char *68 acter of the services rendered, it seems to me entirely illogical to apportion professional services, such as plaintiff rendered, by the month. If apportionable at all they should be in proportion to the services rendered with reference to the whole work to be performed. Assuming the predicate upon which Judge Brace's opinion rests, to-wit, that, “Wagner’s employment was for the whole period of construction; that there was no agreement to pay in. installments or to pay at any particular time, or to pay any stipulated sum,” and that Wagner so understood it is strongly fortified by the fact that he never rendered any monthly bill to defendant, and that he says he made an entire charge of $1,700 for the entire amount of work, the contract is not sever-able.
In a word, we have, if anything, an indivisible implied contract of employment for the entire work, and there being no agreement to pay in installments, plaintiff can not split up his cause of action, and subject defendant to as many suits as he may elect, and entail the costs of two, or a half dozen actions where one only existed.
As I interpret the decision, the plaintiff is not es-topped from suing for the balance of the time not included in this suit.
This being so, this case is readily distinguishable from those cases in which the employer wrongfully terminates the employment in which the employee is permitted to sue on quantum meruit for services rendered up to the dismissal or may wait until the whole period of employment has expired and sue for damages for the breach of the contract. Having reached the conclusion that defendant did not and could not terminate the contract under the peculiar circumstances, it seems to me illogical to apply the rule which governs where the employee is discharged before his term of service is completed and hence, in my opinion, the action is premature. *69 [Cox v. Railroad, 44 Cal. 18 ; Krumb v. Campbell, 102 Cal. 370 ; Coburn v. City, 38 Conn. 290 .]
I fully agree with Judge Brace's views as to the instructions and that the judgment must be reversed for the errórs in those given by the court, but I go farther and hold that the action having been brought before the completion of the work, it was premature, and hence I think it should be reversed altogether and a new action brought for compensation for the entire work.
Robinson, G. J.,. concurs in my views.