¶1delivered the opinion of the Court.
¶2This suit, begun by attachment on warrant, was brought by the appellee against the appellants, merchants of New York city, to recover damages for the wrongful dismissal of the plaintiff by the defendants from their service and employment. The contract between the parties was in writing, and is contained in the following letter, addressed by the defendants to the plaintiff, dated the 19th of February, 1869 :
“Dear Sir: We hereby engage your services as salesman from this date, ’till the 30th of June next inclusive, at the rate of $350 per month. Your particular field will be the city of Baltimore, and you are at liberty to solicit all such dealers there as we do not already sell to. All new trade from that city, introduced by you, will go to your credit, and all orders obtained by you, whether from old or new customers, will likewise be credited to you.”
¶3The plaintiff was dismissed from this employment, by letter from the defendant, dated the 8th of May, on the alleged *221ground that they had ascertained he had been attending to the business of another house. The only important testimony in the case was that given by the plaintiff himself. All the prayers offered on both sides were rejected, and an instruction granted by the Court whereby two questions are presented, the settlement of which will dispose of the whole case.
¶41st. What is the true construction of this written contract between the parties ?
¶52d. Can the defendants reduce the damages in this case, by the sum of $200 earned by the plaintiff after his discharge, and before the 30th of June?
¶61st. There was no proof of usage, nor was there any other evidence aliunde to explain any of the terms of this contract, even if it were, in any respect, ambiguous, and the Court instructed the jury that, by its true construction, the plaintiff did not agree to give his whole time to the business of the defendants, but engaged to serve them efficiently and in good faith as salesman in the city of Baltimore, in the sale of their goods, and if the jury found from the evidence that he undertook the sale of, and sold goods of other persons, in violation of his duty to, and injuriously to the interests of the defendants, they had the right to terminate their agreement with him, and that the undertaking to sell, and the sale on commission for other persons, of goods of like character with those of the defendants, to the same class of buyers with the buyers of their goods, would be an employment inconsistent with his duty and injurious to the interests of the defendants, but if they found he did not perform such services for others, then the plaintiff is entitled to recover.
¶7This, we are satisfied, is the true construction of the contract. It is not an agreement of hiring, by which, as for a menial employment, the master or employer is entitled to the entire time and services of the servant or employee in any service he may choose to dictate, for stipulated wages, but a contract by which the plaintiff became the defendants’ agent *222for special purposes, and with limited powers, that is, to sell by sample and promote the sale.of their goods, and increase their business connections in a particular and distant market. In the discharge of that duty, he was bound to serve them in good faith, and to the extent of his ability, but if doing this did not require his whole time, he could, without violating his engagement with them, occupy the remainder in any other pursuit he might deem advantageous to himself, provided it was not inconsistent with his contract, not detrimental to their interests, and did not impair the value of his services to them as salesman of their goods in that market. The instruction very carefully and fully defines his duty under the contract, and the jury, to whom the matter was properly submitted, upon the evidence before them, found, as they well might, that he had, up to the time of his discharge, faithfully and effectually discharged that duty, and had not performed any services for others inconsistent therewith or detrimental to the interests of the defendants. If it had been the intention to engage the entire services and the whole time of the plaintiff, and that he should not engage lin any other employment whatever, it would have been very! easy to have inserted in the contract a clause to that effect. j
¶82d. On the subject of damages, the Court instructed the jury that if they found for the plaintiff, under the previous part of its instruction, then the plaintiff! is entitled to recover his whole salary under the contract, from the time he was unpaid up to the 30th of June inclusive, less the amount of the defendants’ money they may find he had actually received and not accounted for. That part of this instruction which declares the “plaintiff is entitled to recover” his salary, we regard as merely an announcement that such is the true measure of damages in this case, and not a to the jury to find any particular sum jection to this instruction, on the part of the appellants, is, that in a case like this, where the suit contract by a wrongful dismissal, the peremptory command as damages. The obis for a breach of the defendants may reduce *223the damages by what the plaintiff actually earned or^ might, by due and reasonable diligence, have earned after his dismissal, and before the 30th of June, and hence the defendants were entitled to a deduction for the $200 so earned by the plaintiff. If we assume this rule to be correct, and to apply in ordinary cases where the contract is for the whole time and services of the plaintiff, and he seeks redress in this form of action, we yet think there was no error in the Court’s instruction in this case. The measure of damages ivas fixed by the contract, that is, the stipulated salary for the stipulated period, and by the construction we have placed on that contract, the plaintiff was at liberty to engage in any other employment consistent with the discharge of his duty thereunder. If, therefore, the defendants sought to reduce the damages thus fixed, they must do so, not simply by showing what sum the plaintiff actually earned, or might have earned, after his dismissal, but by showing further that he could not have earned it without a violation of his duty under the contract, if he had not been discharged. On this latter point, there is, in our opinion,-an entire failure of proof. We can discover no evidence in the record from which it could rationally be inferred the employment in which this $200 was earned, was in any way detrimental to the interests of the defendants, or that he could not have earned this small sum in the same or some other employment, between the 8th of May and the 30th of J une, and still have performed, in the strictest sense, his duty to the defendants, if he had not been discharged by them; and, as we have said the onus was on the defendants to establish this before they could demand a reduction of damages for the amount so earned.
¶9Judgment affirmed.
¶10Aeyey, J., dissented on the second point.