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Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 2) online

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E.N. 271. ">Ea,st Tenn., V. & G. R. R. v.

Maine: Sutherland v. Wyer, 67 Me. Staub, 7 Lea, 397.

64. 37 United Slntrs: Pieree v. Tennessee,



§666



PROSPECTIVE DAMAGES RECOVERABLE



1347



So where the servant was employed for hfe, the probable
length of the term of employment is determined by annuity
tables and compensation is given for loss of the employment
during such a term.^^



C. I. & R. R., 173 U. S. 1, 19 Sup. Ct.
335, 43 L. ed. 591; American C. D. Co.
V. Boyd, 148 Fed. 258.

California: Seymour v. Oelrichs, 156
Cal. 782, 106 Pac. 88.

Colorado: Saxonia Mining & Reduc-
tion Co. V. Cook, 7 Colo. 569, 4 Pac.
1111.

Indiana: Hamilton v. Love, 152 Ind.
641, 53 N. E. 181, 54 N. E. 437, 71 Am.
St. Rep. 384; Inland Steel Co. v. Har-
ris (Ind. App.), 95 N. E. 271.

Kentucky: Forked Deer Pants Co. v.
Shipley, 80 S. W. 476, 25 Ky. Law Rep.
2299; Bridgeford v. Meagher, 139 S. W.
750.

Louisiana: De Camp v. Hewitt, 11
Rob. 290, 43 Am. Dec. 204.

Maine: Sutherland v. Wyer, 67 Me.
64.

Maryland: Dugan v. Anderson, 36
Md. 667, 11 Am. Rep. 509; 01m-
stead V. Bach, 78 Md. 132, 27 Atl. 501,
22 L. R. A. 74, 44 Am. St. Rep. 273.

Massachusetls: Cutter v. Gillette, 163
Mass. 95, 39 N. E. 1010; Daniell v. Bos-
ton & M. R. R., 184 Mass. 337, 68
N. E. 337, 339.

Michigan: Webb v. Depew, 152 Mich.
698, 116 N. W. 560, 16 L. R. A. (N. S.)
813.

Mississippi: Prichard v. Martin, 27
Miss. 305.

Missouri: Boland v. Glendale Quarry
Co., 127 Mo. 520, 30 S. W. 151; Miller
V. Boot & Shoe Co., 26 Mo. App. 57;
Lally V. Cantwell, 40 Mo. App. 50.

Nebraska: School District v. Mc-
Donald, 68 Neb. 610, 94 N. W. 829, 97
N. W. 584.

New Jersey: Larkin v. Hecksher, 51
N. J. L. 133, 16 Atl. 703, 3 L. R. A.
137; Moore v. Central Foundry Co., 68
N. J. L. 14, 52 Atl. 292.

New York: Davis v. Dodge, 126 App.



Div. 469, 110 N. Y. Supp. 787; Cottone
V. Murray's, 138 App. Div. 874, 123
N. Y. Supp. 420.

Ohio: Kelly v. Wheel Co., 62 Oh.
St. 598, 57 N. E. 984; Lake Erie & W.
Ry. V. Tierney, 75 Oh. St. 565, 80 N. E.
1128, affirming 29 Ohio Cir. Ct. 83.

Pennsylvania: Wilke v. Harrison, 166
Pa. 202, 30 Atl. 1125.

Texas: G. A, Kelly Plow Co. d. Lon-
don, (Tex. Civ. App.), 125 S. W. 974.

Vermont: Remelee v. Hall, 31 Vt.
582, 76 Am. Dec. 140.

Washington: Howay v. Going North-
rup Co., 24 Wash. 88, 64 Pac. 135, 6
L. R. A. (N. S.) 49 (semble).

West Virginia: Rhoades v. Chesa-
peake & O. Ry., 49 W. Va. 500, 39
S. E. 209, 55 L. R. A. 170, 87 Am. St.
Rep. 826.

Wisconsin: Winkler v. Racine W. &
C. Co., 99 Wis. 184, 74 N. W. 793.

England: Yelland's Case, L. R. 4 Eq.
350.

In Kennedy v. South Shore Lumber
Co., 102 Wis. 284, 78 N. W. 567, a per-
son employed to scale logs was wrongly
discharged. It was held that the limit
of damages was his wages for the
amount of time it would probably have
taken him to scale the logs.

If the trial does not take place until
after the expiration of the term, al-
though suit was brought during the
term, the damages will of course be the
same as if the plaintiff had not sued
until the term expired. Howay v.
Going-Northrup Co., 24 Wash. 88, 64
Pac. 135, 6 L. R. A. (N. S.) 49.

^* United States: Pierce v. East Tenn.,
C. I. & R. R., 173 U. S. 1, 19 Sup. Ct.
335, 43 L. ed. 591.

Indiatm: Pennsylvania Co. v. Dolan,
6 Ind. App. 109, 32 N. E. 802, 51 Am.
St. Hop. 289.



1348 CONTRACTS OF SERVICE § 667

In a few cases, however, it has been held that prospective
damages for loss of service after the time of the trial are too
uncertain for recovery. Thus in an early case in the Supreme
Court of Wisconsin, where a clerk engaged at a salary of
$2,000 a year for five years was discharged without cause at
the end of the first year, and brought his action without wait-
ing for the end of the term, it was held that he could recover
damages measured by the contract down to the day of the trial
only, with such deductions as were proper on the principles
already stated. ^^ This case has occasionally been followed; ^^
but the decision seems to lose sight of the fact that the burden
of proving the possibility of other employment (the seriously
uncertain element in the case) is on the defendant, and the
uncertainty should therefore not prejudice the plaintiff's
recovery.

§ 667. General rule— Duty to seek employment.

In an action brought by a servant for breach of the con-
tract of employment by his wrongful discharge, the measure
of damages is the actual loss inflicted by the discharge. ^^ It

Michigan: Brighton v. Lake Shore & Pierce v. East Tenn., C. I. & R. R., 173

M. S. Ry., 103 Mich. 420, 61 N. W. U. S. 1, 19 Sup. Ct. 335, 43 L. ed. 591,

550, 112 Mich. 217, 70 N. W. 432; supra. A few cases in the lower courts

Stearns v. Lake Shore & M. S. Ry., 112 of New York [Maguire v. Woodside, 2

Mich. 651, 71 N. W. 148. Hilt. (N. Y.) 59; Bassett v. French, 10

New York: Schell v. Plumb, 55 N. Y. Misc. 672, 31 N. Y. Supp. 607; Zender

592; Bantar. Banta, 84 App. Div. 138, v. SeHger-Toothill Co., 17 Misc. 126,

82 N. Y. Supp. 113. 39 N. Y. Supp. 346] appear to be in-

West Virginia: Rhoades v. Chesa- consistent with the cases in the Court

peake & O. Ry., 49 W. Va. 494, 39 of Appeals cited supra.

S. E. 209, 89 Am. St. Rep. 826, 55 L. "^ United Slates: Emerson v. How-

R. A. 170. land, 1 Ma.son, 45.

'' Gordon v. Brew.ster, 7 Wis. 355 Kentucky: Whitaker v. Sandifer, 1

(overruled in Wisconsin by a subse- Duv. 261; William Tarr Co. v. Kim-

qucnt decision: supra, note 37). brough, 17 Ky. L. Rep. 1284, 34 S. W.

*" Minnesota: McMulIan v. Dickin- 528.

son Co., 60 Minn. 150, 62 N. W. 120, 51 Pennsylvania: Nixon v. Myers, 141

Am. St. Rep. 511, 27 L. R. A. 409 Pa. 477, 21 Atl. 670.

(semble). Texas: Meade v. Rutledge, 11 Tex.

Two similar decisions in the Federal 44.

courts to the same effect: (Darst v. Virginia: Willoughby v. Thomas, 24

Mathicson Alkali Works, 81 Fed. 284; Graft. 521.

Schrocdcr v. Californiii-Yukon T. Co. EnijUind: Goodman v. Pocock, 15

95 V((\. 296) scfiM to he overnil.Ml by {.}. H. 576.



§667



GENERAL RULE



1349



is the plaintiff's duty to use reasonable efforts to avoid loss
by securing employment elsewhere.^'- The measure of dam-
ages is, therefore, jyrivia facie the amount of wages he would
have earned under the contract,"*^ deducting, however, such



In Kelly v. Carthage Wheel Co., 62
Oh. St. 598, 57 N. E. 984, the plaintiff
was to be paid by a percentage of the
value of the work done under his super-
vision; with a guarantee, however, of a
certain amount. If it had not been
for the guarantee, plaintiff's damages
would have been nominal, as there was
no obligation on the defendant to man-
ufacture any of the goods. In view of
the guarantee the measure of damages
is the proper proportion of the guar-
antee.

^"^ Alabama: Wright v. Falkner, 37
Ala. 274.

Arkansas: Van Winkle v. Satterfield,
58 Ark. 617, 25 S. W. 1113, 23 L. R. A.
853.

Missouri: Ream v. Watkins, 27 Mo.
516, 72 Am. Dec. 283.

New Jersey: Goebel v. Pomeroy Bros.
Co., 69 N. J. L. 610, 55 Atl. 690.

New York: Howard v. Daly, 61 N.
Y. 362, 19 Am. Rep. 285; Polk v. Daly,
4 Daly, 411.

Vermont: Sherman v. Champlain Tr.
Co., 31 Vt. 162.

Contra, Stewart v. Walker, 14 Pa.
293 {semble), is not to be supported.

The servant, however, is not obliged
to accept employment of a different
nature.

United States: Leatherberry v. Odell,
7 Fed. 641.

Illinois: McKinley v. Goodman, 67
111. App. 374.

Michigan: Farrell v. School Dist., 98
Mich. 43, 56 N. W. 1053 (teacher em-
ployed in graded school need not teach
in district school).

Missouri: Barney v. Spangler, 131
Mo. App. 58, 109 S. W. 855.

New York: Costigan v. Mohawk &
H. R. R., 2 Denio, 609, 43 Am. Dec.



758; Fuchs v. Koemer, 107 N. Y. 529,
14 N. E. 445.

Pennsylvania: Harger v. Jenkins, 17
Pa. Super. Ct. 615 (inferior position).

Nor in a different region. Costigan
V. Mohawk & H. R. R., 2 Denio (N.
Y.), 609.

In Tarrell v. School Dist., 98 Mich.
43, 56 N. W. 1053, it was held that a
school teacher could not be expected
to go to work during her vacation,
which was given her for rest, to find
other employment.

In Texas the servant is allowed a
reasonable time to find other employ-
ment of the same sort; but if after a
reasonable time he cannot do so, he
must accept different employment:
Simon v. Allen, 76 Tex. 398, 13 S. W.
296; Kramer v. Wolf Cigar Stores Co.,
91 S. W. 775.

In Louisiana a discharged servant
is by statute entitled to recover the
entire amount of his wages, without
seeking other employment: Lartigue
V. Peet, 5 Rob. 91, 43 Am. Dec. 204;
DeCamp v. Hewitt, 11 Rob. 290, 43
Am. Dec. 204; Sherburne v. Orleans
Cotton Press Co., 15 La. 360; De-
Puilly V. St. Louis Church, 7 La. Ann.
443; Lambert v. King, 12 La. Ann. 662;
Trefethen v. Locke, 16 La. Ann. 19;
Jones V. Jackson, 22 La. Ann. 112; Bor-
mann v. Thiele, 23 La. Ann. 495; Leche
V. Claverie, 25 La. Ann. 308; Taylor
V. Kehlor, 26 La. Ann. 369; Tete v.-
Lanaux, 45 La. Ann. 1343, 14 So. 241.

*^ United States: Leatherberry v.
Odell, 7 Fed. 641.

Alabama: Hartsell v. Masterson, 132
Ala. 275, 331 So. 616.

Arkansas: Gates v. School District,
57 Ark. 770, 21 S. W. 1060, 38 Am. St.
Rep. 249.



1350



CONTRACTS OF SERVICE



§667



sums as he earned or by reasonable diligence might have
earned elsewhere,'*^ and making allowance for the expenses of



lUinois: School Directors v. Kimmel,
31 lU. App. 537.

Iowa: Worthington i'. Oak & H. P.
I. Co., 100 Iowa, 39, 69 N. W. 202.

Missouri: Nearns v. Harbert, 25 Mo.
352; Koenigkraemer v. Missouri Glass
Co., 24 Mo. App. 124; Hansard v.
Menderson Clothing Co., 73 Mo. App.
584; Rose v. WHUamsville, G. & S. L.
Ry., 146 Mo. App. 215, 123 S. W. 946;
Simpson v. Ball, 145 Mo. App. 268, 129
S. W. 1017.

Nebraska: Omaha School Dist. v.
McDonald, 68 Neb. 610, 94 N. W. 829.

New York: Costigan v. Mohawk &
H. R. R., 2 Denio, 609; Milage v.
Woodward, 186 N. Y. 252, 78 N. E.
873; Decker v. Hassell, 26 How. Pr.
528; Dearing v. Pearson, 8 Misc. 269,
28 N. Y. Supp. 715; Graff v. Blumberg,
53 Misc. 296, 103 N. Y. Supp. 184;
Schleiff V. Bcrglas, 110 N. Y. Supp. 266.

Pennsylvania: King v. Steiren, 44
Pa. 99, 84 Am. Dec. 419.

South Carolina: Latimer v. New
York Cotton Mills, 66 S. C. 135, 44 S.
E. 559.

Where the amount of wages was not
fixed by the contract the basis of re-
covery is reasonable wages during the
term. McDaniel v. Parks, 19 Ark. 671.

** United States: Foye v. Dabney, 1
Sprague, 212.

Colorado: Saxonia M. Co. v. Cook,
7 Colo. 569.

Connecticut: Perry v. Simpson Water-
proof Mfg. Co., 37 Conn. 520.

Delaware: Spahn v. Willman, 1
Pcnnew. 125, 39 Atl. 787.

Georgia: Ansley v. Jordan, 61 Ga.
482; Roberts v. Crowley, 81 Ga. 429.

Illinois: Brown v. Board of Educa-
tion, 29 111. App. 572; School Directors
V. Kimmol, 31 111. App. 537; School
Dirfctors v. Bircli, 03 III. App. 499.

Iridutnn: HinfliflifTc r. Kooiitz, 121
Ind. 422, IC) .\m. St. l{cp. 403; Papc



V. Lathrop, 18 Ind. App. 633, 46 N. E.
154; Elkhart Rubber Works v. Neff
(Ind. App.), 92 N. E. 553.

Iowa: Beymer v. McBride, 37 la.
114; Byrne v. Independent School
Dist., 139 la. 618, 117 N. W. 983.

Kentucky: Whitaker v. Sandifer, 1
Duv. 261; Hayworth v. Haldeman, 14
Ky. L. Rep. 202; Mortonviile Coal
Co. V. Sisk, 139 L. W. 1086.

Maine: Sutherland v. Wyer, 67 Me, 64.

Maryland: Cumberland & P. R. R.
V. Slack, 45 IMd. 161; Baltimore Base
Ball Club Co. V. Pickett, 78 Md. 375,
28 Atl. 279, 44 Am. St. Rep. 304, 22 L.
R. A. 690.

Massachusetts: Dickinson v. Tal-
mage, 138 Mass. 249; Maynard v.
Royal W. C. Co., 200 Mass. 1, 85 N.
E. 877.

Michigan: Harrington v. Gies, 45
Mich. 374; Champlain v. Detroit
Stamping Co., 68 Mich. 238.

Mississippi: Prichard v. Martin, 27
Miss. 305.

Missouri: Estes v. Desnoyers Shoe
Co., 155 Mo. 577, 56 S. W. 316; Squire
V. Wright, 1 Mo. App. 172.

New York: Everson v. Powers, 89 N.
Y. 527, 42 Am. Rep. 319; Gillis v.
Space, 63 Barb. 177; DeLeon v. Ech-
everria, 45 N. Y. Super. Ct. 610; Heim
V. Wolf, 1 E. D. Smith, 70; Thompson
V. Wood, 1 Hilt. 93; Huntington v.
Ogdensburgh & L. C. R. R., 33 How.
Pr. 416; Davis v. Dodge, 126 App. Div.
469, 110 N. Y. Supp. 787; King v. Will
J. Block Amusement Co., 115 N. Y.
Supp. 243; Goldberg v. Weinberger,
115 N. Y. Supp. 1098.

North Carolina: Hendrickson v. An-
derson, 50 N. C. (5 Jones L.) 246, 72
Am. Dec. 549; Currier v. W. M. Ritter
Lumber Co., 150 N.C.694, 64 S. E.763.

Ohio: St. Bernard r. Reig, 13 Ohio
Cir. Ct. 540, 7 Ohio Cir. Dec. 539.

rcnnsylvania: King v. Stoiron, 44



§667



GENERAL RULE



1351



obtaining employment.''^ The burden of proof is on the de-
fendant to show that the plaintiff might have obtained other
employment/^ for the failure of the plaintiff to obtain other



Pa. 99, 84 Am. Dec. 419; Kirk v. Hart-
man, 63 Pa. 97.

South Carolina: Latimer v. New
York Cotton Mills, 66 S. C. 135, 44 S.
E. 559.

Tennessee: Congregation of Children
of Israel v. Peres, 2 Cold. 620.

Texas: Fowler v. Waller, 25 Tex. 695;
Bluefields Banana Co. v. Wollfe (Civ.
App.), 22 S. W. 269; Gulf, C. & S. F.
Ry. V. Jackson, 29 Tex. Civ. App. 342,
69 S. W. 89; G. A. Kelly Plow Co. v.
London (Tex. Civ. App.), 125 S. W.
974.

Virginia: Willoughby v. Thomas, 24
Gratt. 521.

Wisconsin: Barker v. Knickerbocker
Ins. Co., 24 Wis. 630, 1 Am. Rep. 187;
Winkler v. Racine Wagon & C. Co.,
99 Wis. 184, 74 N. W. 793.

EnglaJid: Yeliand's Case, L. R. 4 Eq.
350.

In Allen v. Maronne (Tenn.), 23 S.
W. 113, the plaintiff employed for a
year was wrongfully discharged after a
month by reason of defendant's in-
solvency. He then got employment
with another for an indefinite term and
was discharged for his alleged miscon-
duct after a month ; this employer went
out of business in three months. Plain-
tiff meanwhile got other employment
during the remainder of the three
months at higher wages but the third
employment then ceased. It was held
that whether or not he could be charged
with the wages which he would have
earned on the second employment but
for his misconduct, since the employ-
ment would have lasted only till the
second employer went out of business,
and as in fact he earned more in this
case than he would have done if he had
retained his second employment, the
cause of his discharge from that em-
ployment was immaterial.



In Gates v. School Dist., 57 Ark. 370,
21 S. W. 1060, 38 Am. St. Rep. 249, it
was held that damages are not reduced
by the fact that, having moved out to
a farm, plaintiff's expenses of living
were less than in the city where he was
employed. That is not part of the ex-
pense of performing the contract.

*^ United Slates: Development Co.
of America v. King, 170 Fed. 923, 96
C. C. A. 139.

Massach2isetts: Dickinson v. Tal-
mage, 138 Mass. 249.

In Tufts V. Plymouth Gold Min. Co.,
14 Allen (Mass.), 407, a workman was
improperly discharged, at a distance
from his home. It was held that he
could not recover the cost of getting
home; but in determining how much
he might have realized elsewhere the
cost of getting where he could receive
employment might be considered. But
in Tickler v. Andrae Mfg. Co., 95 Wis.
352, 70 N. W. 292, one discharged be-
fore the end of his term of service was
held not entitled to deduct from the
amount of wages that he earned else-
where the expenses of moving himself
and his family back where he came
from in order to get the new employ-
ment.

*^ United States: Leatherberry v.
Odell, 7 Fed. 641; Schroeder r. Cali-
fornia Y. T. Co., 95 Fed. 296; Mathes-
ius V. Brooklyn Heights R. R., 96 Fed.
792.

Arkayisas: Van Winkle v. Satterfield,
58 Ark. 617, 25 S. W. 1113, 23 L. R. A.
853.

California: Rosenberger v. Pacific
Coast Ry., Ill Cal. 313, 43 Pac. 963.

Illinois: Fish v. Glass, 54 111. App.
655.

Massachusetts: Maynard v. Royal
Worcester Corset Co., 200 Mass. 1, 85
N. E. 877.



1352



CONTRACTS OF SERVICE



§667



employment does not affect the right of action, but only goes
in reduction of damages, and if nothing else is shown, the plain-
tiff is entitled to recover the contract price upon proving the
defendant's violation of the contract, and his own willingness
to perform. ^^ The fact that the plaintiff obtained new em-



Mickigan: Allen v. Whitlark, 99
Mich. 492, 58 N. W. 470.

Minnesota: Bennett v. Morton, 46
Minn. 113, 48 N. W. 678.

Mississippi: Hunt v. Crane, 33 Miss.
669, 69 Am. Dec. 381.

Missouri: Nearns v. Harbert, 25 Mo.
352; Koenigkraemer v. Missouri Glass
Co., 24 Mo. App. 124; Simpson v. Ball,
145 Mo. App. 268, 129 S. W. 1017.

Nebraska: Wirth v. Calhoun, 64 Neb.
316, 89 N. W. 785.

New York: Costigan v. Mohawk &
H. P. R. R., 2 Denio, 609, 43 Am. Dec.
758; Howard v. Daly, 61 N. Y. 362,
19 Am. Rep. 285; Milage v. Wood-
ward, 186 N. Y. 252, 78 N. E. 873;
Dearing v. Pearson, 8 Misc. 269, 28
N. Y. Supp. 715; Graff v. Blumberg,
53 Misc. 296, 103 N. Y. Supp. 184;
Schleiff V. Berglas, 110 N. Y. Supp.
266.

Pennsylvania: Kirk v. Hartman, 36
Pa. 97; Heyer v. Cunningham Piano
Co., 6 Pa. Super. Ct. 504.

South Carolina: Latimer v. York
Cotton Mills, 66 S. C. 135, 44 S. E. 559.

Texas: AUgeyer v. Rutherford (Civ.
App.), 45 S. W. 628; Weber Gas & G.
E. Co. V. Bradford, 34 Tex. Civ. App.
543, 79 S. W. 46; Pacific Exp. Co. v.
Walters (Tex. Civ. App.), 93 S. W.
496; Peacock v. Coltranc, 44 Tex. Civ.
App. 530, 99 S. W. 107.

Wisconsin: Babcock v. Applcton
Manuf. Co., 93 Wis. 124, 67 N. W.
33.

Plaintiff need not allege in the dec-
laration that he could not have ob-
tained other employment. Wirth v.
Calhoun, 64 Neb. 316, 89 N. W. 785.

In John C. Lewis Co. v. Scott, 14
Ky. L. Rep. 713, it was held that a



servant wrongfully discharged must
allege in his declaration that he could
get no other employment, or else he is
entitled to only nominal damages; but
this case is clearly wrong.

Where it is shown that other em-
ployment was or could have been had,
it would seem that the burden remains
on the defendant to show what wages
could have been obtained.

United States: Schroeder v. Califor-
nia Yukon Trading Co., 95 Fed. 296.

California: Rosenberger v. Pacific
Coast Ry., Ill Cal. 313, 43 Pac. 963.

Contra, Ruland v. Waukesha Water
Co., 52 App. Div. 280, 65 N. Y. Supp.
87.

In Hunt V. Crane, 33 Miss. 669, 69
Am. Dec. 381, it was held that the
burden of showing that the wages ob-
tained in other employment were lower
than they should have been was on the
employer.

" Alabama: Strauss v. Meertief, 64
Ala. 299, 38 Am. Rep. 8.

Colorado: Saxonia M. Co. v. Cook,
7 Colo. 569.

Georgia: Ansley v. Jordan, 61 Ga.
482; Roberts v. Crowley, 81 Ga. 429.

Illinois: Brown v. Board of Educa-
tion, 29 111. App. 572.

Indiana: Gazette P. Co. v. Morss, 60
Ind. 153, Hinchcliffe v. Koontz, 121
Ind. 422; 23 N. E. 271, 16 Am. St.
Rep. 403.

Minnesota: Horn v. Western Land
Assoc, 22 Minn. 233.

Missouri: Pond v. Wyman, 15 Mo.
175.

Pennsylvania: King v. Steiren, 44
Pa. 99, 84 Am. Dec. 419.

Wisconsin: Barker v. Knickerbocker
Ins. Co. 24 Wis. 630.



§667



GENERAL RULE



1353



ployment does not constitute a defense. It is one of the facts
for the jury to consider in estimating the plaintiff's loss; ^^ and
to entitle the defendant to reduce the recovery on the ground
that the plaintiff had earned money in another employment,
it must be shown that if he had not been discharged, he could
not have earned it without violating his duty under his con-
tract. ^^ Of course, if the plaintiff, at request of the defendant,
held himself in readiness to go to work again after his dis-
charge, he may recover the full amount of wages. ^°

Where the plaintiff immediately after his wrongful discharge
obtained another employment at a higher salary, it was held
that he could recover only nominal damages. ^^ And an offer
by the defendant to take the plaintiff back into his employ may
be shown in reduction of damages, if there was nothing that
should have prevented the plaintiff from accepting the offer. ^^



*' Alabama: Morris Mining Co. v.
Knox, 96 Ala. 320, 11 So. 207; Troy
Fertilizer Co. v. Logan, 96 Ala. 619,
12 So. 712.

Illinois: Williams v. Chicago Coal
Co., 60 111. 149.

■•' Arkansas: Van Winkel v. Satter-
field, 58 Ark. 617, 25 S. W. 1113, 23
L. R. A. 853.

California: Nuckolls v. College of
Physicians and Surgeons, 7 Cal. App.
233, 94 Pac. 81.

Maryland: Jaffray v. King, 34 Md.
217.

Therefore if the servant has before
discharge performed all the work he
was to do, he can recover the whole
contract without deduction. In Adams
V. Cox, 1 Nott&McC. (S. C.) 284, an
overseer was turned off before the end
of the year but after a crop had been
made. Held, that he was entitled to
recover his salary for the whole year.
In Seed v. Johnston, 63 App. Div. 340,
71 N. Y. Supp. 579, plaintiff was to
give defendant his advice during his
life, so far as it should be required, and
he was to receive 50 dollars a month.
It was held that if plaintiff was dis-
charged from the employment, since



there was nothing for him to do under
the contract if he was not called upon,
he could sue from month to month
and recover each month the instal-
ment due for that month.

^^ Bromley v. School Dist. No. 5, 47
Vt. 381.

*i Williams v. Anderson, 9 Minn. 50.

^2 Illinois: Trawick v. Peoria & F. C.
St. Ry., 68 111. App. 156.

Mississippi: Birdsong v. Ellis, 62
Miss. 418.

Missouri: Squire v. Wright, 1 Mo.
App. 172.

New York: Bigelow v. American F. P.
Mfg. Co., 39 Hun, 599.

South Carolina: Mitchell v. Toale,
25 S. C. 238, 60 Am. Rep. 502.

England: Brace v. Calder, [1895]
2 Q. B. 253.

Neiv Zealand: Wilson v. Kisri, 18
N. Z. (Sup. Ct.) 807.

Where the acceptance of employ-
ment offered by the employer at a
lower rate would be taken as a modi-
fication of the original agreement, the
servant is of course not called upon to
accept it.

Alabama: People's Co-operative As-
soc. V. Lloyd, 77 Ala. 387.



1354 CONTRACTS OF SERVICE § 668

Thus in Beymer v. McBride,^^ the defendant had agreed to
make the plaintiff agent for the sale of certain machines for
which he was agent, and to turn over to him all the orders
already given and the machines required to fulfil the orders.
On his failure to keep the agreement, it was held proper to
show that two days after the breach the o\Miers of the ma-
chines offered to turn the orders and machines over to the
plaintiff, and that the plaintiff had refused to accept; for the
plaintiff was bound to use ordinary efforts to make the dam-
ages as light as possible.

Where the plaintiff, after seeking other employment with-
out success, does work for himself, it has been held in Michigan
that the value of such work need not be deducted; ^^ but in
New York where he went to work on his own account, the value
of his work was deducted from the amount he recovered. ^^
In all such cases the question would seem to be : was his work
on his own account incompatible with the performance of the
original service? '^^ If he engaged in business on liis own ac-
count, the profits of the business should be deducted from the
agreed wages; " and if the business had acquired a value,
although no profits were realized, it has been held that such
value should be deducted. ^^

§ 668. Employment terminable on notice — Domestic service.

A servant is often employed on a contract terminable by
notice within a certain time, or at once by paying wages for

Iowa: Jackson v. Steamboat Rock New York: Hecht v. Brandus, 4 Misc.

Independent School District, 110 Iowa, 58, 23 N. Y. Supp. 1004.

313, 77 N. W. 860. " 37 la. 114.

Michigan: Chisholm v. Preferred ^* Harrington v. Gies, 45 Mich. 374.

Bankers' L. Assur. Co., 112 Mich. 50, ^^ Huntington v. Ogdensburgh &

70 N. W. 415. L. C. R. R., 33 How Pr. 416; ace,

Missouri: Howard v. Vaughan- Gates v. School Dist., 57 Ark. 370, 21

Monnig Shoe Co., 82 Mo. App. 405. S. W. 1060, 38 Am. St. Rep. 249.

New York: Whitmarsh v. Littlefield, ^ Van Winkle v. Satterfield, 58 Ark.

40 Hun, 418. G17, 25 S. W. 1113, 23 L. R. A. 853.

For the same reason the servant need " Richard.son v. Hartman, 68 Hun

not accept the lender of emi)l()}'inent (N. Y.) 9, 22 N. Y. Supp. 645.

of a different sort. '^ Kramer v. Wolf Cigar Stores Co.,

Iowa: Jackson v. Steamboat Rock 99 Tex. 597, 91 S. W. 775, 777.
Independent School Dist., 110 la. 313-
77 N. W. 860.



§668



EMPLOYMENT TERMINABLE ON NOTICE



1355



that time. Such are the contracts of domestic servants,



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