14 Abb. Pr. 156 | New York Court of Common Pleas | 1873
This action was on a contract for the plaintiff’s services as an actor in defendant’s theatre, from September 15, 1870, to June 1, 1871, at a salary of sixty-five dollars a week and a benefit to consist of either one-third the gross receipts or the net proceeds of the benefit night’s receipts. It was brought in September, 1871, and plaintiff, in his complaint, alleges he was wrongfully discharged on April 4, and that he was unable thereafter to procure other employment. He does not, however, allege per
The answer, after a general denial as to other matters, admitted the contract; justified the discharge under an alleged breach of plaintiff’s obligations by his refusal to perform parts in plays or characters assigned him; that plaintiff thereupon left the city, and remained in or near Baltimore, in the State of Maryland, during the remainder of the season, and did not at any time after his discharge perform or offer to perform his contract.
The jury, under unexceptional instructions from the court in that respect, found the plaintiff was justified under his contract of service with the defendant as an actor, in refusing to act in a part assigned him inferior to the role of characters which he had agreed to represent, and that he was discharged from his employment without just cause. For this he was awarded in the court below six hundred and eighty-eight dollars and ten cents as compensation, at the contract rate of sixty-five dollars per week, as for full performance, with some addition for the benefit.
Upon his discharge on April 4, the plaintiff by letters of the fourth and sixth of that month denied defendant’s right to discharge him, and offered performance on his part, which was not accepted. “ About a week afterwards he left the city and went to Baltimore, and for the remainder of the period of his engagement spent his time there or in Virginia. He went a-fishing.” Subsequent to his discharge he made no effort to get any other employment in his line of business. The justification he offers for this is, ‘ ‘ It was not very easy to
This was refused and defendant excepted.
Under such circumstances I am of the opinion the judgment cannot be sustained.
First. Plaintiff was not entitled to recover either wages for services rendered during the eight weeks following his discharge or for damages ensuing from his unlawful discharge, computable upon the rate of such weekly wages, except upon the assumption that he made and sustained such a tender of performance as was equivalent to actual performance. In a week after his discharge he left the city for the Southern States, and for all the subsequent period of his engagement, was absent at the South, and in no way tendered his services, or rendered himself subservient to the objects of the contract, or to any such use of his
If there exists any analogy in a contract for the hire
In the present case, the departure of the plaintiff from the city, and Ms absence for the eight weeks in Maryland and Virginia, engaged in his own pursuits, without notice to defendant of Ms whereabouts or address, or of being subject to immediate recall, was not the maintaining of any such tender, nor did it show a case of readiness at all times during the period of the contract to render the service for wMch the plaintiff had contracted.
Secondly. In all cases of breach of contract, it becomes the active duty of the party injured to make reasonable exertions to render the damages resulting therefrom as light as possible. The court of appeals, in Hamilton v. McPherson, 28 N. Y., 76, says, “ The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract, the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this, and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the in
Thirdly. The plaintiff’s discharge did not, as a matter of law, entitle him, on the expiration of his term of service, to recover the full price for the whole period. The defenses arising from his departure for Maryland and his continued absence at the South, and his failure after his discharge to attend at the theater, or to apply for employment elsewhere ; or to maintain any continuous offer to perform, were set up by the answer and distinctly proved. The absence of any such tender of services, or readiness to perform for eight weeks after he was discharged, disentitle him from such a recovery, for services rendered during that period, at the contract rate, as has been awarded him. There has been much question whether the employee, unjustly discharged, but tendering performance, may, maintain his action on the contract for accruing wages, or is confined to his single remedy for damages for the unjust dismissal. This subject has has been most ably and elaborately examined by Ch. J. Daly, in Moody v. Leverich, decided at the present term (in which I concurred), sustaining the latter view of the law, and that case must be regarded as settling the question so far as the court is concerned. While there may be authorities asserting more or less broadly the .right of the employee illegally discharged, on maintaining tender .of his services, to recover compensation from time to time, as wages would become due under the provisions of the contract (see cases reviewed in Moody v. Leverich), none of them assume to afford such right of recovery to one who abandons the sphere of his employment and adopts other pursuits for his own profit or pleasure.
Fourthly. 1STotwithstanding the want of a formal
For these reasons the judgment should be reversed, subject to plaintiff’s acceptance of that amount.
Daly, Ch. J., and Loew, J., concurred.
Present, C. P. Daly, Ch. J., and Robinson and Loew, JJ.