This аction is based upon a written contract, in the following words and figures: “This contract, made and entered into this first day of January, 1890, by and between J. D. Van Winkle, party of the first part, and W. T. Satterfield, party of the second part, witnesseth: That whereas, the said J. D. Van Winkle has this day employed the said W. T. Satterfield to work as salesman, and do all other duties connected with the said J. D. Van Winkle’s book and stationery store, now situated in the postoffice building on the south side of the public square in the city of Fayetteville, Ark., for a special period of time, beginning with January 1, 1890, and extending one year from that date, at a salary of $60 per month, payable at the end of each month. And I, the said J. D. Van Winkle, do hereby grant the said W. T. Satterfield the privilegie of continuing to work in the same capacity above stated, and for the same salary above stated, until January 1, 1893, if he so desires. And I, the said W. T. Satterfield, do agree that for the above considerations, I will well and truly perform all duties connected with the book and stationery store to the best of my ability, all things being subject to the direction or management of the said J. D. Van Winkle.
J. D. Van Winkle,
W. T. Satterfield.”
Satterfield worked for Van Winkle, as a clerk and salesman, in a book and stationery store, in the performance of his part of this contract, until the 10th of November, 1890, when Van Winkle dischargеd him. The following facts show how the discharge occurred : A postoffi.ee was in the rear end of the store. The entrance to it was the front door of the store, which was kept open on Sundays, from 8 to 9 a. m., from 12 to 1 p. m., and from 4 to 5 p. m., to enable citizens to get their mails. Satterfield was in the employ of Van Winkle before the written contract was entered into, and had been in the habit of remaining in the store and watching the goоds while it was open on Sundays. Van Winkle undertook to make railings to protect the goods, so that it would not be necessary for Satterfield to remain on Sundays. They were to be made so that they could be put up аnd taken down at will. In the event they had been made and used, it would have been necessary to put them up on Saturday nights and carry them to the cellar on Monday mornings. Upon his undertaking to make them, Satterfield proрosed to remain in the store while it was open on Sundays, saying that he preferred doing so to putting them up and carrying them in and out of the store. They were not made, and Satterfield continued to watch the goods on Sundays, with few exceptions, until he was discharged on his refusal to do so any longer. At the time of his discharge he offered to perform his contract, insisting, however, that it was no part of his duty to remain in the store on Sundays; and notified Van Winkle in writing that he elected to work for him under his contract until the first of January, 1893, and thereby offered to do so, but Van Winkle refused to allow him to remain in his employment, unless he would stay in the store on the Sabbath and take care of the goods, as he had been doing, which Satterfield declined to do; and he was, thereupon, discharged.
On the 7th of January, 1891, Satterfield commenced this action against Van Winkle, on their contract, to recover the damages caused by its breach. Van Winkle admitted the discharge, but denied that it was wrongful.
In April, 1891, the issues in the cause were tried by a jury. The foregoing facts were proved, and evidence tending to prove that Satterfield was out of employment, after he was discharged and before the trial, for fifty-two days, and that he was in business on his own account for the remainder of the time, was ’ adduced. What the value of his labors in his own business which were performed after his discharge was, does not appear.
The jury returned a verdict in favor of the plaintiff for $104 ; the court rendered judgment accordingly ; and the defendant appealed.
Two questions are presented for our consideration: (1) Was the discharge wrongful; and (2) if so, what damages were recoverable?
1. Was Satterfield wrongfully discharged?
Necessity which can be avoided by the exercise of reasonable precaution cannot excuse or justify labors on the Sabbath which are forbidden by the statutes. State v. Goff,
The contract sued on did not require the parties to labor on Sunday. Satterfield only bound himself by it to discharge thе duties of a salesman or clerk. The violation of the Sabbath was not among those duties. The work which the appellant demanded of him could not be lawfully done on the Sabbath. The evidence does not show thаt there was any necessity for it, or that it could not be avoided by means which would have subserved the purpose for which it was required. On the contrary, it does show that railings would have served the same purpose. Sattеrfield was consequently wrongfully discharged.
(2). What damages are recoverable ?
If he adopts the third remedy, he can recover the damages which he has sustained down to the day of the trial, which is limited to a compensation for the injury suffered by the breach of the contract. The loss of the wag-es which his employer agreed to pay him constitutes the injury. What, therefore, he has suffered by reason of the loss of the wages, as a rule, is the amount of the damages he is entitled to reсover. 2 Sedgwick on Damages (8 ed.), sec. 667, and cases cited ; 2 Sutherland on Damages (2 ed.), secs. 692-695 and cases cited; Wood on Master and Servant (2 ed.), p. 246.
It is the breach, and not the time of the discharge, or when thе action was brought, that g'ives the damage. If the consequences for which the law renders the employer responsible developes so as to create an absolute injury at the time of the trial, he is entitlеd to a compensation for such injury. He cannot recover the damages he might suffer after the trial, for the obvious reason. they cannot be assessed in advance. For he might, after the recovery of thе judgment, obtain employment from other persons, and receive, for the residue of the term for which he was hired in the first instance, as much as, or more than, he would have been entitled to, under the broken contraсt, had he served his time out; or he mig'ht die before his term of service expires; and in either event recover more than the law allows, which simply intends to save him from actual loss by the employer’s breach of the сontract. Gordon v. Brewster,
The burden of proof is on the employer to show that the servant might have obtained similar employment; for the failure of the servant to obtain other employment does not affect the right of action, but only goes in reduction of damages, and, if nothing else is shown, “ the servant is entitled to recover the contract price upon prоving the employer’s violation of the contract, and his own willingness to perform.” The fact that the servant might have obtained new employment does not constitute a defense. It is one of the facts to be cоnsidered in estimating the servant’s loss. Howard v. Daly,
In Gardenhire v. Smith,
Judgment affirmed.