159 Ark. 493 | Ark. | 1923
(after stating- the facts). The main objection to the recovery had is that the defendant offered to receive the plaintiff back into his employment at $137.50 a month, and that the plaintiff ought to have accepted the offer and in this manner have kept down the payments. We cannot agree with the defendant in this contention. According to the evidence of the plaintiff, the defendant only agreed to keep him in his employment if he would work for him at $137.50 in lieu of the $275 per month provided in the contract of employment.
According to the testimony of the plaintiff, this was a plain proposition -to give up the old contract and to accept in lieu thereof a new one, less beneficial to the plaintiff. This is to say, the new offer of the defendant to the plaintiff was to continue in the same employment at a less price. If the plaintiff had agreed to this. 1m would have virtually surrendered' the old contract and have made a new one. If he had agreed to a change ox-modification of the old contract, he would have been bound by its terms and could not have recovered for -a breach of the original contract of employment. After the defendant had virtually declined to give the plaintiff employment under the original contract, there was no further duty on the plaintiff’s part to be in readiness to perform. If the testimony of the plaintiff is true, Iris only further duty was to use reasonable care in entering into other employment of the same kind, and thus reduce the damages. The case was submitted to the jury on this theory. VanWinkle v. Satterfield, 58 Ark. 617.
This case also decides that the burden of proof was on the defendant to show that the plaintiff might have obtained similar employment. The reason is that the failure of the servant to obtain other employment does not affect his right of action, but only goes in reduction of damages.
It is also contended that the court erred in giving instruction No. 3, which is as follows: “If you find from the proof that the conduct of the defendant evinced the fact that he would no longer be bound by the contract, or if there was a clear manifestation by words or acts of his intention not to perform his part of the contract according to its terms, such action or conditions were sufficient to authorize the plaintiff to treat the contract as repudiated.”
There was no error in giving this instruction. According to the testimony of the plaintiff, the defendant told him that he would not keep him during the remainder of his term of service unless he would agree to work for a reduced salary. The jury might have found, from this declaration of the defendant, an intention to be no longer bound by the contract, and this court has held that not only an absolute refusal in words to perform a contract, but also any clear manifestation, by words or acts, of an intention not to carry out the contract, will authorize the other party'to treat this as a cancellation of the contract and to bring action for the breach thereof. Spencer Medicine Co. v. Hall, 78 Ark. 336.
The instructions asked for by the defendant and refused by the court were erroneous aucl need not be set out in full. It is only necessary to say that they carry with them an obligation on the part of the plaintiff to have remained with the defendant and worked for him at $137.50 per month if he could not get employment in a similar line of business elsewhere. This qualification was not correct, for the reason stated above. The plaintiff was not obliged to remain in Osceola or to tender his services to the defendant after they had been once definitely rejected. According to the testimony of the plaintiff, he made reasonable efforts to procure similar employment elsewhere, but failed.
The testimony of the parties to the contract was in direct and irreconcilable conflict. The court submitted their respective theories to the jury, under proper instruction, and tlie verdict in favor of the plaintiff is warranted by his testimony.
There is no prejudicial error in the record, and the judgment will be affirmed.
