| Ill. | Sep 15, 1871
delivered the opinion of the Court:
The first question presented for consideration is, whether appellant, having claimed, as witness for himself, to reduce the amount of his earnings in other employment, by losses alleged to have been sustained by him, as a commission merchant, through one of his customers, was privileged from disclosing, upon cross-examination, the name of such customer.
No authorities have been referred to by counsel tending to recognize the privilege in such case. We are aware of none, and regard the negative of the proposition as being too clear, upon principle, to merit discussion.
The only other question in the case arises upon the action of the court at the close of the testimony. It is claimed by appellant’s counsel that, as the case then stood, there were questions of fact involved, constituting necessary elements of the verdict, but that the court withdrew all such questions from the consideration of the jury, and peremptorily directed what verdict they should find.
The record shows that, at the close of the testimony, the court said: “There is nothing left to discuss, is there? .1 think I am prepared to tell the jury what the verdict ought to be.” Thereupon the court instructed the jury as follows: “ Under the evidence, the plaintiff is entitled to recover $2604. ” To which appellant’s counsel excepted. The jury returned the following verdict: “ We the jury find that the plaintiff is entitled to recover $2604, including interest.” The counsel for appellant moved to set aside the verdict and to grant a new trial, which was overruled and exception taken.
There was a special plea, setting up matters arising out of the same subject matter and transaction of the claim of the plaintiff below, in recoupment. Such matters grew out of a breach of contract on the part of the appellee to employ him at a certain salary, and commissions upon coal to be sold by him, for the period of five years, and wrongfully discharging him before the lapse of that time.
At the close of the testimony, the state of the case was substantially this : Appellant was discharged on the 23d of September, 1868, without cause, when his time would not expire until the 1st of May, 1871. But it appeared from his own testimony that, as early as the first week of October following his discharge, he got employment, or into business, from which he realized more than he was to receive from appellee, if we lav out of the question the uncertain amount which might be realized as commissions upon coal which he might sell in excess of a specific amount, as to which the evidence shows little, if any, data; that he continued to receive such compensation or profits in his other employment, as that, at the expiration of the time for which he was employed by appellee, he would probably have received as much, if not more, than his salary would have amounted to, if he had continued under the contract with appellee. If he had received as much in other employment, of the same character, then, of course, the damages sustained by his wrongful discharge might be but nominal. But he claimed to reduce the result of his earnings and income below what his salary from appellee would amount to by showing losses to which he had been subject; but upon the question arising concerning the privilege above referred to, he, rather than disclose the name of the customer through whom the loss was sustained, elected to withdraw all evidence of such loss. It is probable that, upon this being done, the court regarded the defense by way of recoupment foreclosed, by appellant’s admission of the amount received by him in other business, and that no question of fact remained to be passed upon.
Would such a result necessarily follow?
Where a party is employed for a specified time, and at a stated salary, in a business of one character, and he is wrongfully discharged, does it follow that, if he goes into another kind of employment, or, by the use of his capital and skill both combined, he makes as much as he would have received under the employment from which he was discharged, he has, therefore, necessarily sustained no damages ?
The principle upon which damages are allowed in cases like this, is that purely of compensation. New employment does not constitute a defense, but the amount earned is to be taken into consideration in determining how much the party discharged has lost; or, perhaps, as a better expression, in mitigation of damages. The law will not permit him to so conduct himself as to aggravate the damages. He must not lie idle when it is practicable to get work of the same general character.
But when other employment has been obtained, and earnings received, or business entered into and profits made, and the question arises as to how much damages such party has sustained by reason of the wrongful discharge, some questions of fact must necessarily be involved, viz: Was the new employment of the same general character, or was the labor more severe, or the responsibility greater or less? Was the new business such as required the use of capital, while that from which he was discharged did not? If a young man should enter into a contract with a merchant, to act as his clerk for a specified time, at a stated salary, and be wrongfully discharged, and if the only employment he could get would be to work as brakeman on railroad trains, would it be claimed that because he received as much wages as brakeman as he was to receive as clerk, such facts would constitute a defense to the merchant? Would they, as matter of law, operate as mitigation of damages, to such as were nominal, merely? Clearly not; simply because the question of fact should be passed upon whether the labor was not different in character and more severe in the performance.
The matter set up in the special plea is in the nature of a cross action. Suppose, instead, appellant had brought his action upon the contract, alleging the same breach. Proof upon the trial, of the execution of the contract, readiness to perform on the part of appellant, and the wrongful discharge, would constitute a cause of action which would entitle him to some damages. But suppose the same evidence were introduced as to subsequent employment, and the receipt of compensation, which, nominally, amounted to as- much and even more than the stipulated salary, would it be competent for the court to take the case from the jury and instruct, them peremptorily to find for the defendant ? Manifestly it would not; and yet that is precisely what was done, in effect, in this case.
The appellant testified, and is uncontradicted, that, at the time he was discharged, he retained, and so reported to appel-lee, the sum of $2543.90, which had been reduced by deducting the September salary of $208.33; that he was obliged to allow Mr. Hart $100 in the settlement of a wharfage account, which, with the September salary, reduced the amount received by him to $2235.57.
It does not appear that appellee had ever questioned the allowance of the salary for September, or of the $100 paid on the wharfage account. If it was questionable whether these items should have been allowed, the matter should have been submitted to the jury.. Against appellant’s evidence on the trial was his letter of October 10, 1868, to Rockwell, in answer to one of the latter. Rockwell says in his letter:
“You state that you have credited yourself with salary to May 1st, 1871, - ----- $6666.67
The amount to your credit as shown by the trial balance, is ------ - 4122.77
Balance, ----- $2543.90
Wbat are the items that constitute this balance of $2543.90 and where are they?”
In his reply to these inquiries, appellant said:
“ In reply to your inquiries as to what constitutes the amount of $2543.90 referred to in your letter, I would say it is principally cash retained by me on account of my claim against the Chicago Coal Company, ” etc.
Unless this admission amounts to an absolute estoppel, which it clearly does not, the appellant had the right to claim before the jury that this amount should be reduced by the items above referred to in his testimony, and the question should have been submitted to the jury.
Then again, the question of interest was for the jury, and not for the court. The suit was for money received to the use of another, it is true; but appellant testified, and, in that, was uncontradicted, that he immediately notified the company of the fact, and his reason for so doing. In such case, the statute gives interest when such money is “ retained without the owner’s knowledge. ” And the only other case where the statute gives interest in the absence of a written contract or judgment is, “ on money withheld by an unreasonable and vexatious delay of payment. ” Whether the interest be claimed upon one ground or the other, the question must be submitted to the jury.
The judgment of the court below is reversed and the cause remanded.
Judgment reversed.