62 Miss. 418 | Miss. | 1884
delivered the opinion of the court.
L. F. Birdsong, a merchant, employed John J. Ellis as a clerk for twelve months, at fifty dollars per month. Ellis commenced and continued service under the contract for one month, when he was discharged by Birdsong, who then and there offered to pay him fifty dollars for the month he had worked as a final settlement between them. Ellis declined to accept the fifty dollars on the terms offered and left the store. On the same or the next day after the discharge, Birdsong met Ellis and told him that he desired that there should be no hard feelings between them and that he was willing to keep him in his employment, and requested him to return to the store and go to work. Ellis refused to do so and was not able to obtain other business until something more than two months afterward, when he was employed by another person at fifty dollars per month. Afterward Ellis sued Birdsong
The contest in the lower court and here is 'mainly as to what effect should be given to the offer made by the appellant to take the appellee back into his employment after he had discharged him. The judge below refused to instruct the jury, at the instance of the appellant, that such offer, if proven,, barred the appellee from recovering more than fifty dollars, admitted to be due for the one month’s service which had been rendered before the discharge.
The jury should have been instructed to that effect. The offer made by Birdsong must be construed as a proposition to Ellis to resume and continue business under the terms of the original contract. If it had varied the terms of the first engagement, or if anything had occurred to render further intercourse or association between the parties offensive or degrading, or if Ellis had engaged in other employment incompatible with his returning, he might have rejected the offer with safety. But the record shows nothing of the kind, and the invitation should have been accepted by Ellis. Saunders v. Anderson, 2 Hill (S. C.) 486 ; Prichard v. Martin, 27 Miss. 305.
The well-established modern doctrine is, that if one employed for a specified term is wrongfully discharged before the expiration of the term, the employer is bound to pay him such damages, not to exceed full wages for the whole time specified in the contract, as he may sustain, on account of being discharged. But the employee in such case is required to make reasonable exertion to prevent loss by obtaining other employment, and his recovery is limited to the actual damage he sustains, which is the amount he would have received if he had been permitted to complete the contract, less what he has earned in the meantime or what he might have earned by due diligence in seeking employment. Wood, Law of Master and Servant, 239, 246 — 7; Hunt v. Crane, 33 Miss. 669.
If through negligence or willfulness he remains out of business after he is discharged, and allows damages to be unnecessarily enhanced, the increased loss justly falls on him. If of his own choice he eats the bread of idleness, he cannot compel his employer
Reversed.