Sutherland v. Wyer

<p>On exceptions and motion from the superior court to set aside the verdict.</p> <p>Assumpsit to recover damages for breach of contract under which the plaintiff agreed to play for the defendants at the Portland museum, from September 6, 1875, thirty-six weeks at $35, per week. On December 27 following, the whole company of which the plaintiff was one were addressed by one of the defendants thus : “Ladies and gentlemen, I find it necessary to reduce your salaries one-third; any one not willing to accept these terms will get their full salary this week and be discharged.” The following documents were in evidence. “Portland, December 29, 1875, Mr. J. Sutherland, Your salary, from this date, will be twenty-four dollars per week. Per order, I. ' T. Wyer, Wm. Weeks, Treasurer.”</p> <p>“ Portland, December 31, 1875. I. T. Wyer, Esq., Dear Sir, Your note intimating your determination to reduce my salary from 27th instant, duly received. I most respectfully refuse to assent to any such proposition, and will expect my full salary every week in fulfillment of the terms of our contract. Respectfully yours, J. Sutherland.”</p> <p>“ Portland, January 3, 1876. Mr. Sutherland, Your services will not be required at the Portland museum after January 8, 1876. I. T. Wyer.”</p> <p>The writ was dated January 11, 1876. It appeared that the plaintiff received his full salary to that date, and rendered the defendants no service after January 10. He afterwards went to New York, where he received $60, for services a part of which was for an engagement at Booth’s which was for eight weeks, from April 10, at $25 per week, but which he left ten days after, to attend this trial. Other facts sufficiently appear in the opinion.</p> <p>Judge Symonds upon the question of damages instructed the jury as follows :</p> <p>“ If, on the other hand, you find for the plaintiff upon both branches of the case, you will come to the question of damages, which in this case assumes a somewhat peculiar phase. The writ is dated January 11th. When the writ was brought, according to the contract nothing whatever was due to the plaintiff. The plaintiff had been paid in full up to January 8th. And this writ was brought on Tuesday, the 11th, before another week had elapsed. So, according to the terms of the contract, when this action was brought nothing whatever was due to the plaintiff</p> <p>“The general rule is — and it is almost an invariable rule, with the exception of some classes where prospective damages are allowed resulting from injury — that the damage to bo allowed is the damage that had accrued when the writ was brought. The ordinary rule is that a man can only recover what was due him at the time when he sued. But I apprehend there is .a rule which will guide as correctly in determining the damages here. The damage to be allowed is what had been sustained by the plaintiff at the time this writ was brought. Now what is that damage he had sustained then ? It is conceded that he had been discharged. He had lost then the prospect of earning his wages in accordance with the terms of the contract; that is to say, when he brought this writ he had been discharged, and of course if you come to this question of damages, the defendant had broken his contract.</p> <p>“ With the contract in full force the plaintiff had a certainty of $35 a week during the theatrical season. As we are discussing the question of damages we will assume the defendant had broken the contract. By breaking the contract the defendant had deprived the plaintiff of the right to earn by his services $35 per week accoi'ding to the terms of the contract during the theatrical season. So that the certainty of earning the money, in accordance with the. terms of the contract, is one thing the plaintiff had lost; but it does not follow that he is entitled to recover that full sum during the theatrical season. A man has not the right to remain idle if other work offers and charge the whole amount to his employer. Notwithstanding the damage in such case done to the plaintiff, the law would still require him to exercise his best diligence to obtain new employment and so diminish the damage. So that the rule of damage in this case, as I understand it and as I give it to you for the purpose of this case, would be the amount accruing subsequently to the discharge in accordance with the terms of the contract itself less whatever, you are satisfied from the evidence in the case, the plaintiff might earn by the exercise of reasonable and proper diligence on his part. The jury must take the whole testimony together and from their best judgment of what the plaintiff might earn by the exercise of reasonable diligence on his part, and that, if you come to the question of damages, you must deduct from the amount due according to the contract.”</p> <p>The verdict was for the plaintiff for $570. The defendants moved to set aside the verdict and also alleged exceptions.</p> <p>The decisions have not been uniform in regard to the question of damages in this class of cases.</p> <p>In some of the states, it has been held that it being actual loss and not prospective damages that are recoverable, the amount should be measured by the contract down to the time of trial, deducting what had been earned or might have been earned by active diligence on the part of the plaintiff. Cordon v. Brewster, 7 Wis. 355. Fowler v. Armour, 24 Ala. 194.</p> <p>But whatever view is taken of the law, and if the instructions of the court are correct, the verdict should be set aside.</p> <p>In the rules and regulations which form a part of the contract, “ the manager reserves the right to discharge any person, who may have imposed on him by .engaging for a position which in his judgment they are incompetent to fill properly.”</p> <p>Mr. Wyer, the defendant, testifies, “I discharged the plaintiff because I considered hiua incompetent to fill the position for which he engaged,” and the testimony fully sustains the judgment of the defendant.</p> <p>The testimony shows that the plaintiff had actually received sixty dollars between the date of the writ and the time of trial; and that he had on the tenth of April entered into an engagement of eight weeks, at twenty-five dollars per week, which he voluntarily abandoned to attend this trial, which he forced on against our motion for continuance, as the docket entries show, while one of the defendants, and most important witness, was out of the country. It will be noticed that eighteen weeks remained of the thirty-six at the date of plaintiff’s discharge, and the jury only deducted sixty dollars from the sum that would have been due if the contract had remained in full force, and plaintiff had continued in the service of defendants. Whether the jury deducted this as the amount he might earn under his engagement in New York, or whether it is the sixty dollars already earned, it is impossible to decide. They should have done both. The verdict is against the law and the evidence.</p> <p>The rule of damages given by the judge in his charge is correct. According to that rule the damages to lie allowed are the damages which plain tiff had sustained when writ was brought; circumstances up to time of trial developed what the amount of those damages was.</p>