28 N.Y.S. 26 | New York Court of Common Pleas | 1894
Lead Opinion
Whatever the form of the complaint, the action is for damages for breach of a contract of employment. Howard v. Daly, 61 N. Y. 362. A repudiation of an agreement before or at the time of performance constitutes a breach of it sufficient to sustain an action. Bunge v. Koop, 48 N. Y. 225; Frost v. Knight, L. R. 7 Exch. 111. The judgment below is conclusive as to the contract and the breach, and the only question we are to solve is, what was the measure of damages? We are unable to distinguish the case in principle from Fisher v. Monroe, 2 Misc. Rep. 326, 21 N. Y. Supp. 995. The circumstance that there the plaintiff had entered on performance, while here the plaintiff was forbidden performance, is surely insignificant, since in either case the action proceeds on the contract, and, in the absence of an agreed compensation for the breach of it, the law adjudged the rule of damages. Howard v. Daly, supra. The contention of the appellant is that his contract stipulates the measure of damages for its breach, and restricts the recovery to the amount of two weeks’ salary. It reads:
“It is further agreed that the said John H. Russell may cancel this contract at any time on giving the party of the second part one week’s notice and paying one week’s additional salary; and in consideration of such additional week's salary the party of the second part agrees to accept one week’s notice of cancellation at any time.”
Is the case within the terms or intent of this stipulation? Indisputably not. A breach of a contract is not a cancellation of a contract; one party breaks it, both parties cancel it. Here the condition of cancellation is one week’s notice and payment of two weeks’ salary. But no notice was ever given by the defendant, and no notice ever accepted by the plaintiff. So clearly the contrary that the defendant, both in his complaint and at the trial, stood solely upon the ground that he had never made the contract with the plaintiff. How, then, can he avail, himself of a provision in an agreement which he disclaims, and the obligations of which he disavows? But it is said the law fastens the contract upon him. True enough; but the contract to which the law holds him is the contract which he made, and that authorizes him to cancel it only on notice and payment of the partial salary to the plaintiff. Since he never gave, and she never accepted, the one week’s notice; since he never paid, and she never received, the two weeks’ salary,—there could be, and there has been, no cancellation of the contract. The one week’s notice and payment of the two weeks’ salary were, we repeat, the stipulated condition of defendant’s exoneration from further liability under the contract; and, defaulting in that, he is bound by the contract in all its obligations; one of which is, upon its breach, to pay plaintiff what performance of the contract would have been worth to her, i e. the salary for the entire term of employment, less what she did earn or might have earned otherwise. Howard v. Daly, supra. In short, payment of the two weeks’ salary was the price of the privilege of canceling the contract, not the stipulated compensation for its wrongful breach. There being no
BISCHOFF, J„ concurs.
Concurrence Opinion
I cannot concur, as I believe the true rule in such caséis laid down in Fisher v. Monroe, 2 Misc. Rep. 326; 21 N. Y. Supp. 995.