manent structure, or that only which is temporary. If the latter, then damages are recoverable only to the date of filing the action; but if a permanent structure has been wrongfully erected, then all future damages may be recovered in one action." In Joseph Schlitz Brewing Co. v. Compton,95 the distinction here mentioned is discussed. The court

94

said: "There is much confusion among the authorities which attempt to distinguish between cases where successive actions lie and those in which only one action may be brought. The chief difficulty in this subject concerns acts which result in what effects a permanent change in the plaintiff's land and is at the same time a nuisance or trespass." The court then indicates the two classes of decisions, stating that one class goes upon the theory that a nuisance or trespass is not in its nature permanent and will not continue forever and therefore these courts refuse to give entire damages in one action; while the other class of cases holds that the entire controversy should be settled in a single action and damages allowed for all injuries, past and future, if such trespass be proven with reasonable certainty to be permanent. The court then states that the better view is presented in the former class of cases, which seems to be the correct view, and sustained by the better reasoning and the weight of authority.

37. Entire damages in contract actions.-In case of a breach of a single indivisible contract but one action can be maintained. If all damages are not

94 North Vernon v. Voegler, 103 Ind. 314.

95 142 Ill. 511.

then recovered they are lost to the plaintiff. So if A should employ B for a period of one year at twelve hundred dollars a year and should at the end of the first month of his employment wrongfully discharge him, B would have a right of action against him at once. But in such case he could only recover the damages sustained up to the time of filing his action, and having once recovered damages for A's breach of contract he could never maintain another action for additional damages, for failure to secure employment during the remainder of the year. The rule is well established that a recovery for part of an entire demand merges the whole of it and bars any further recovery thereon.96

A contract is said to be severable or divisible in cases where the price is fixed separately for each item of purchase. Or, if the acts to be performed are fixed for different periods of time, this is said to make the contract divisible.97 If it appears from the contract that its entire performance is not a condition precedent to receiving pay for portions of the work already done it is said to be divisible.98 To determine whether or not entire damages, past and future, may be recovered in one action for breach of contract, it is important first to determine whether there has been such a breach of the contract as would authorize the plaintiff to treat it as putting an end to the contract.

96 Bendernagle v. Cocks, 19 Wendell 207 (N. Y.); Erwin v. Lynn, 16 0. St. 539; Oliver v. Holt, 11 Ala. 574; Logan v. Caffrey, 30 Pa. St. 196.

97 Quigley v. De Haas, 82 Pa. St. 267; More v. Bonnet, 40 Cal. 251; Leonard v. Dyer, 26 Conn. 172.

98 Siegel Cooper Co. v. Easton, etc., Co., 165 Ill. 550; Jackson v. Cleveland, 15 Wis. 107.

The question frequently arises in continuing contracts where one has agreed to support another during his life for a period of years. Thus the court said in Remelee v. Hall: 99 "If the defendant should wholly and absolutely refuse to keep the plaintiff for a long period, of time, and compel him to furnish a house and maintenance for himself, with notice that the defendant did not intend further to perform the contract on his part, or if he should grossly and wantonly ill treat the plaintiff, so that he could no longer live quietly and comfortably with the defendant, we think such a breach might well be regarded as entire, and justify a recovery of damages for the full term of the contract." And in Parker v. Russell,1 an action for breach of contract to support the plaintiff during his life, it was said that if the contract is regarded as still subsisting the damages may be assessed up to the time the action was begun, but if the breach is such that the plaintiff has the right to treat the contract as absolutely and finally broken by the defendant and he elects so to treat it, the damages may be assessed as of a total breach of an entire contract. It is evident in such cases that the court must be governed by the facts of each case, and thus it is difficult to announce general rules to govern them.

38. Divisible contracts.-If, however, a contract is divisible in its terms, more than one action may be sustained for its breach. Thus if plaintiff's employment was for a year but payment was to be made

99 31 Vt. 582, 76 Am. Dec. 140.

1 133 Mass. 74.

monthly, if defendant wrongfully terminated the contract at the beginning of the year, plaintiff might maintain an action as often as the installments for his pay fell due. These divisible contracts usually contain a number of promises to do a number of acts, all constituting one transaction. A breach of one such promise is not necessarily a breach of the entire contract. So where there is a purchase at one time of several articles of different kinds and at different prices, a refusal to take and pay for one would be a breach only of that portion of the contract, and as many actions might be brought as there were breaches of these several parts of such a contract.

CHAPTER VI.

MENTAL SUFFERING AND FRIGHT.

39. Kinds of mental suffering.-There are so many forms of mental suffering that it will be possible to mention and discuss briefly only a few of them in connection with the subject of damages, such as fright, humiliation, indignity, shame, mortification, anxiety, and distress.

For mental suffering alone, caused by an act not itself illegal, and where there is no physical impact or other violation of one's legal rights, there can be no recovery. On this the authorities are unanimous. Since mental suffering always arises from, and is connected with, some overt act, the courts have generally dealt with the act as the principal thing and the resulting suffering as incidental and of secondary importance. But as a matter of fact, it has frequently occurred that the most important element forming the injury for which damages are recovered is the mental suffering, and the act or omission has often only constituted the peg on which damages for mental suffering were hung.

40. Failure to deliver message. The cases holding that recovery may be had for mental suffering where a telegraph company has failed to deliver a message, which failure would naturally produce mental anguish, are illustrations of this. The failure to deliver the message may be treated as a breach of