217 Mass. 100 | Mass. | 1914
The defendants agreed to employ the plaintiff for the spring season of 1910 as trimmer in their millinery department. In the Superior Court they admitted that there had been a breach of this contract on their part, and the trial proceeded on the issue of damages. The case is here on exceptions to the refusal of the judge to give several rulings requested by the defendants, and to the admission of certain testimony.
It appeared in evidence that the season began about February 15, 1910. On February 14 the defendants wrote to the plaintiff notifying her that they would not re-engage her. To this she replied that she would treat the letter as a breach of their contract, and would hold them responsible in damages.- On February 19 they wrote to her:
“After due consideration of yours of the 16th inst. we beg to advise you we shall expect you to report at the store Monday a. m. February 21st. We have, however, a head trimmer and your work will be under the supervision of this head trimmer, and Mrs. Cooksey.”
The plaintiff testified that she regarded this letter as an afterthought and as not written in good faith; that the defendants
There was also evidence to warrant the finding of the following facts. After her letter of February 24 to the defendants, the plaintiff applied to the various wholesale houses and to some of the retailers for employment. On March 14, she was offered a position as copyist at $15 a week, but declined it as she had never worked for less than $18 and sometimes received $20, and was hoping to get employment at her regular pay. On that same day she was employed at Kornfeld’s, and worked there from Tuesday until Saturday night at $3 a day. After that no position was obtainable in Boston, as it was too late in the season, and she was unable to accept those offered out of town on account of the condition of her invalid mother.
The presiding judge fully and correctly instructed the jury on the general rule of damages applicable in such cases. There were two portions of the evidence that called for more specific instructions, namely, the defendants’ letter of February 19, and the testimony relating to the plaintiff’s refusal to accept certain offers of employment. As to the letter, the judge expressly said to the jury, “there is no question that if she had been offered definitely her old employment for the term and for the wages for which she was engaged, that her absolute refusal to accept that should be regarded as a bar for any further claim for damages beyond the date when that refusal was sent in.” And he properly left it to the jury to say as a matter of fact whether the letter constituted such an offer. If the defendants really had intended to restore to the plaintiff her old position, they easily could have said so. The letter, however, did not state what the new work was to be, nor the wages, nor the term of employment; and the jury well might regard such an offer, terminable at will, as one not equivalent to the plaintiff’s former contract, which was for a definite period and in a superior position. The plaintiff was not obliged to accept a modification of the original agreement. De Loraz v. McDowell, 68 Hun, 170, 172, affirmed in 142 N. Y. 664. Chisholm v. Preferred Bankers’ Life Assurance Co. 112 Mich. 50.
With reference to the plaintiff’s duty to make efforts to secure other employment after her dismissal from the service of the defendants, the presiding judge, as a portion of his instructions, read the following from the opinion of this court in Maynard v. Royal Worcester Corset Co. 200 Mass. 1: “Where one is under contract for personal service, and is discharged, it becomes his duty to dispose of his time in a reasonable way, so as to obtain as large compensation as possible, and to use honest, earnest and intelligent efforts to this end. He cannot voluntarily remain idle and expect to recover the compensation stipulated in the contract from the other party.” He also gave the sixth ruling requested, namely, “In order for the plaintiff to recover for the loss of wages as fixed by the contract the jury must find that the plaintiff was unable to procure by the exercise of proper industry other employment of some kind reasonably adapted to her abilities.” This fully protected the rights of the defendant. Indeed, it might be regarded as too favorable, unless taken in connection with the further ruling, given at the request of the plaintiff and not excepted to by the defendant, that “the plaintiff was not obliged to seek employment in another locality, or of a substantially lower grade and character than that from which she was discharged.” The principle on which the plaintiff’s damages were allowed was that of compensation. And while it was her duty to use reasonable diligence to secure other employment and thereby lessen her loss, it has generally been held that where, as in this case, a plaintiff was employed in a special service, she is not obliged to engage in a business that is not of the same general character, in order to mitigate the defendant’s damages. It was for the jury to determine as questions of fact whether the plaintiff did exercise such reasonable diligence, whether she was justified in declining offers of employment out of town by reason of her mother’s illness, and whether the refusal of offers at $15 a week or of work in an inferior position was warranted by her expectation of early employment at her regular occupation and salary. Williams v. Chicago Coal Co. 60 Ill. 149. Fuchs v. Koerner, 107 N. Y. 529. Jackson v. Independent School District, 110 Iowa, 313. McKinley v, Goodman, 67 Ill. App. 374.
As to the evidence with reference to the condition of the plaintiff’s mother, it was at least competent as bearing on the, reasonableness of the plaintiff’s refusal to accept employment in Fall River.
Exceptions overruled.
