Winkler v. Racine Wagon & Carriage Co., 99 Wis. 184

Winkler v. Racine Wagon & Carriage Co.

99 Wis. 184 | Wis. | 1898

Pinney, J.

The defendant’s contention is that if, as is alleged in the complaint, the plaintiff was wrongfully discharged by the defendant before the expiration of the stipulated period of his service, he cannot sue for and recover the unpaid portion of the stipulated wages, except for past services rendered and for such sums of money as had already become due; that, as far as any other claim on the contract is concerned, he should have sued for the injury he had sustained by his wrongful discharge and breach of the contract in not being allowed to serve the stipulated period, and earn the wages agreed on, relying on the rule laid' down in Howard v. Daly, 61 N. Y. 362; and Weed v. Burt, 78 N. Y. 191. The general rule is that when a contract is entire, as in the present case, it is necessary for a party to show full performance on his part before he can maintain an action upon it. The authorities recognize certain exceptions to the rule, as where performance has been rendered impossible by the act of God, by the act of the law, or by the act of the other party. Jennings v. Lyons, 39 Wis. 557. The defendant having wrongfully discharged the plaintiff and refused to receive his services or permit him to complete his contract of service, the plaintiff had the right to treat it as broken, and to sue on it and recover to the date of the expiration of the contract ac*188cording to its terms, and the measure of his damages prima, facie would be the contract price of the work; but the defendant might mitigate the damages by showing that the party might have obtained other employment elsewhere. The burden of showing this is on the defendant. In Danl&y v. Williams, 16 Wis. 581, it was held that where one contracts to work for another, either for a specified time or until he finished a building or other work, if he is prevented by the fault of the hirer he is certainly damaged to the extent of the sum he would have received for his services unless he could obtain other employment in the meantime. “ In the absence, therefore, of any evidence that the party might have obtained any other employment, the law can adopt no other-rule of damages than the contract price, unless there is some legal presumption that such other employment might be obtained.” Barker v. Knickerbocker L. Ins. Co. 24 Wis. 630.

The complaint counts, in substance, upon a breach by defendant of the contract between the parties, in that it, without justification or excuse, dismissed the plaintiff from its. employment, notwithstanding he was ready and willing to continue in its employment and fully perform the contract on his part, and compelled him to seek employment elsewhere. It seems to be the settled law of this state that, where a party is thus wrongfully discharged by the employer before the expiration of the contract period, he may wait until such period arrives, and then recover against the employer the wages he would have earned but for such wrongful discharge, less what he could have earned by employment elsewhere, which will be in reduction of damages. Cordon v. Brewster, 7 Wis. 355; La Coursier v. Russell, 82 Wis. 265; Littlefield v. William Bergenthal Co. 87 Wis. 394.

It savors of over-refinement and extreme technicality to say that the action as framed is not in substance founded upon the breach of contract stated, in consequence of the wrongful and improper discharge of the plaintiff. The aver*189ment in the complaint that “ there is now due the plaintiff, by virtue of such contract, $250,” is no more than saying that the plaintiff’s damages for such breach amounted to that sum, and would seem to be but the equivalent of a claim not technically for wages, but for compensation for breach of the contract. ¥e think that the complaint states in a clear and concise manner all the facts peeessary to show that the plaintiff had a cause of action against the defendant for a breach of the contract between the parties, and to recover damages according to the rule stated in the cases cited. It is true that it is alleged in the complaint that there is due the plaintiff, by virtue .of such contract, the sum of $250, all of which the defendant neglects and refuses to pay, and for which judgment is demanded. The assumption that the action is for wages rather than for compensation under the contract on account of its'breach is nob justified by the allegations of the complaint. The objection to the complaint was raised ore temes at the trial, and the court should have construed the complaint liberally, and with a view to ■.substantial justice, and not so as to defeat it by undue technicality of construction. We hold, therefore, that the court ■erred in sustaining the defendant’s demurrer ore temes, and that the judgment given thereon as stated must be reversed.

Inasmuch as the judgment against the plaintiff on the defendant’s-demurrer ore terms to the complaint and for costs is reversed as erroneous, it 'follows that the order setting off the costs should also be reversed; so that the plaintiff may proceed to collect the judgment for costs awarded to him ■on the dismissal of the defendant’s counterclaims, and from which there has been no appeal.

By the Court.— The judgment of the circuit court on the ■demurrer ore t&nus to the plaintiff’s complaint is reversed, and the cause remanded for a new trial; and the order offsetting the costs in the circuit court on the dismissal of the ■defendant’s counterclaims, in favor of the plaintiff, against the costs awarded to the defendant is reversed.