Thompson v. Wood

1 Hilt. 93 | New York Court of Common Pleas | 1856

INGRAHAM, Eirst Judge.

There was sufficient evidence as to tbe employment of tbe plaintiff by the defendants to carry tbe question to tbe referee. Even if Merchant’s testimony was doubtful, Noyce testified expressly to tbe admission of defendants, made on 1st May, 185-4, that tbe plaintiff was to remain in tbeir employ for another year. The question belonged to tbe referee, and be has passed upon it, so that we cannot interfere with his finding on this point.

There was no necessity for a new offer of services after tbe recovery in tbe Marine Court action. The court allowed tbe plaintiff to withdraw bis claim for damages for tbe breach of tbe contract, and tbe court only gave judgment for tbe balance of salary up to 20th September, when tbe plaintiff was discharged defendants’ employ. If, after tbe plaintiff’s offer to perform, which was refused, the defendants bad determined to employ the plaintiff again, be should have given him notice that be required bis services: not having done so, the presumption of law is, that his determination, before expressed, not to employ him, still remained unchanged.

The defence of misconduct, to warrant tbe plaintiff’s discharge, is not set up in the answer.

The referee has, however, passed upon this defence on con dieting testimony, and tbe remarks upon tbe first point are equally applicable and conclusive as to this one.

The judgment in the Marine Court was no bar to this action. Where an agreement of this kind is broken, tbe person cm ployed has bis election, cither to sue for bis wages as they become duo from time to time, or to bring one action for damages for the breach of tbe contract. If sucb action is brought before tbe term of hiring bas expired, and the party recovers damages for such breach of the contract, such recovery estops him from bringing another action. But if his action is merely to recover the wages due at the time of bringing tbe action, be is not thereby deprived of bis right either to recover wages subsequently becoming payable, or an action for damages for the subsequent breach of the agreement in not employing the plaintiff according to tbe contract.

Upon the trial of this case in the Marine Court (as the justice testifies), he permitted the plaintiff therein to withdraw the claim for services since the 20th September, and that he only passed upon the claim for wages up to that date. This is conclusive to show that the claim for damages was not adjudicated upon in that action.

There is no ground for interfering with the report of the referee in this case upon any of the points above stated.

The remaining question is as to the amount of damages which the plaintiff should recover. This point was discussed in Hein v. Wolf (1 E. D. Smith, p. 70), and the right to recover, as damages, the full amount, was held to be proper, unless it appeared that the party could have procured other employment. T^ obligation .to show this rested on the defendants. The same extent of liability is recognized in Costigan v. The Mohawk and Hudson R.R. Co. (2 Denio, 608), in which the court says: “ The defence set up should bo proved by the one who sets it up. Ho seeks to be benefited by the fact, and he should therefore prove it.” In that case the court also held that, as the plaintiff had not been shown to have had other employment, the recovery might extend to the full compensation promised by the contract.

There is evidence that the plaintiff was sick at Fordham, and. such sickness, if it rendered the plaintiff permanently unable to discharge his duties, might authorize his discharge; or if. when his services were,tendered, ho was unable to discharge his duties, such tender might be unavailing. This tender was made shortly before the commencement of one of the actions; and the sickness at Fordham appears to have been in August, and to have terminated before the 26th September, because on that day it is in proof that the plaintiff went to the races, and the witness speaks of it as having been after the sickness at Fordham, and that was after the discharge on 20th September. The referee also finds .that such discharge was without just cause, and I conclude, therefore, his finding was against the defendant on this, point.

However I might differ with the referee in the result to which he has arrived, still I could not interfere with his finding. The facts are conflicting, open to discussion, and perhaps in some respects to doubt, as to the proper conclusions upon them, but. the report is not so clearly against the weight of evidence as to warrant this court in setting it aside.

Judgment affirmed.