47 N.Y.S. 747 | N.Y. App. Div. | 1897
The general principles of law underlying the case are settled by the former decision on appeal in this action. (9 App. Div. 481.) The evidence adduced upon the present trial is not so materially different as to change the view expressed upon the former appeal that upon the facts presented there was sufficient to go to the jury upon the question whether the dismissal of the plaintiff was the result of an actual or a merely feigned dissatisfaction on the part of the defendant. The main question having been resolved by the jury in the plaintiff’s favor, there is left for consideration only the exceptions, two of which alone we regard as of sufficient import to require discussion.
In some ways the defendant sought to obtain the benefit of the rule that the plaintiff, in reduction of damages, was obligated to make an effort to obtain similar employment, which it is conceded he did not do. Upon this ground a motion was made to dismiss the complaint, and certain requests to charge were presented to the court involving the idea that for failure to observe this obligation the plaintiff was only entitled to nominal damages. It is to be noted that no such defense was pleaded. But, if we assume that it was proper under the form of denial contained in the answer, then the burden was upon the defendant of showing either that employment was offered and declined or that no effort was made to procure it. The only testimony bearing upon that subject was that given by the plaintiff himself, who testified that he did not make any application for similar employment with any other newspaper because it would be useless, and this he explained by saying: “ It was an exceptional contract in that it permitted doing my private business and to write upon any subject I pleased. * * * I have had nearly twenty years in the newspaper business, and I knew that it was an unusual thing.
The second exception relates to the charge of the judge that interest was to be allowed upon the amount asked for in the complaint. The rule on the question of interest, as stated in White v. Miller (78 N. Y. 393; cited with approval in Sloan v. Baird, 12 App. Div. 486), is that in an action for breach of a contract, where the damages are unliquidated, interest is not to be allowed on the damages unless they are such as might easily be ascertained and computed at the time of the breach, from facts which were then known to exist. In Howard v. Daly (61 N. Y. 362), which was a case where a contract for future employment and services had been entered upon, and when the time arrived to perform, the employer repudiated the contract, it was held that the remedy of the employee was not an action for wages, but to recover damages for the breach, and that the damages in such action wer a, prima facie the amount of the wages for the full term. The amount of damages, however, in such an action is necessarily unliquidated, because it is liable to be affected by the question whether the plaintiff has been able to earn anything during the time covered by the contract, or has refused to enter into a similar contract, when he might have done so, and thus reduced the amount of damages.
This action having been brought before the expiration of the contract for the breach of which it is sought to recover damages, the damages are necessarily unliquidated, and it was error to charge that the jury should allow interest. This error would not necessarily require that the judgment be reversed, but to the extent that the
The judgment should be accordingly modified by reducing it to the sum of $3,036, and as so modified affirmed, without costs.
Van Brunt, P. J., Rumsey and Williams, JJ., concurred; Ingraham, J., dissented.
Judgment modified by reducing it to the sum of $3,036, and as modified affirmed, without costs.