2 Denio 609 | N.Y. Sup. Ct. | 1846
As a general principle, nothing is better settled than that upon these facts the plaintiff is entitled to recover full pay for the entire year1. He was ready during the whole time to perform his agreement, and was in no respect in fault. The contract was in full force in favor of the plaintiff although it had been broken by the defendants. In general, in such cases, the plaintiff has a right to full pay. The .rule has been applied to contracts for the hire of clerks, agents and laborers, for a year or a shorter time, as also to the hire of domestic servants, where the contract may usually be determined by a month’s notice, or on payment of a month’s wages.
It has, however, been held, and rightly so, as I think, that where a seaman hired for the outward and return voyage, was improperly dismissed by the captain before the service was completed, a recovery of wages by the seaman, for the whole time, was proper, deducting what he had otherwise received for his services after his dismissal and during the time for which his employer was bound to make payment. (Abbott on Ship. 4th Am. ed. 442, 3; Hoyt v. Wildfire, 3 John. 518; Ward v. Ames, 9 id. 138; Emerson v. Howland, 1 Mason, 51, 2.)
And upon the same principle, where a merchant engages to
In these cases it appeared, or was offered to be shown, that the plaintiffs had in fact performed services for others, and for which they had been paid, in lieu of those they had bound themselves to perform for the defendants, and which the latter had refused to receive. In Heckscher v. McCrea, (24 Wend. 304,) the court went a step further. That case
In all the cases I have cited, the facts on which the delinquent party sought to bring the amount to be recovered, below the sum agreed to be paid, were proved or offered to be proved on the trial. Nothing was left to inference or presumption, and it was virtually conceded that the onus of the defence rested on the defendant. They are also cases in which the plaintiffs had either earned and received money from others, during the time when they must have been employed in fulfilling their contract with the defendants, or in which they might have earned it in a business of the same character and description with that which they had engaged with the defendants to perform.
The principles established by the cases referred to, seem to me just, and although I have found no case in which they have
But first of all the defence set up should be proved by the one who sets it up. He seeks to be benefitted by a particular matter of fact, and he should therefore prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer,. and presumptions, between him and the person wronged, should be made in favor of the latter. For this reason therefore the onus must in all such cases be upon the defendant.
Had it been shown, in the case at bar, that the plaintiff, after his dismissal, had engaged in other business, that might very well have reduced the amount which the defendants otherwise ought to pay. For this the cases I have referred to would furnish sufficient authority. But here, it appears that the plaintiff was not occupied during any part of the time from the period of dismissal to the close of the year.
Again, had it been shown on the trial, that employment of the same general nature and description with that which the contract between these parties contemplated, had been offered to the plaintiff, and had been refused by him, that might have furnished a ground for reducing the recovery below the stipulated amount. It should have been business of the same character and description, and to be carried on in the same region. The defendants had agreed to employ the plaintiff in superintending a rail-road from Albany to Schenectady, and they cannot insist that he should, in order to relieve their pockets, take up the business of a farmer or a merchant. Nor could they require him to leave his home and place of residence, to engage in business of the same character with that in which he had been employed by the defendants.
I think we cannot, as between these parties, presume that the plaintiff might have been so employed and that he refused; and therefore the report, in my judgment, should be set aside. If
Report set aside.
The rule of damages against the employer for the breach of a contract to perform mechanical work by the piece is different. (See Clark v. Marsiglia, 1 Denio, 317.)