76

75

value of services performed measures the recovery and not their supposed value by reason of any particular circumstances in which the person was placed for whom they were rendered. If the price is fixed by special contract and any recovery whatsoever may be had, the contract price measures the compensation for the work done. Although it is determined that in such case the value of the work less any sum paid thereon and less any damage occasioned by the plaintiff's acts, admeasures the damages. Again, if payment is to be made in land when the services are performed, it furnishes a rule for ascertaining the measure of damages, provided such land has a determinable value.78

77

§ 2019. Wrongful discharge."-There may be a recovery by an employee who has been wrongfully discharged before the expiration of his term of such damages as the employer might reasonably have anticipated would result therefrom; 80 or of such loss as directly flows from the wrongful act and which might have been foreseen when the contract was entered into.81 So it is the general rule in this class of actions that the measure of damages is the amount which would have been earned by the employee or servant during the period of employment provided for by the contract less such sum as he did earn or might by reasonable diligence have earned during the time covered by the contract. And interest on the damages sustained has

81

75 Yates v. Root, 4 App. Div. (N. Delaney v. Love, Rap. Jud. Y.) 439; 74 N. Y. St. R. 156; 38 N. Y. Queb. 14 C. S. 40. Supp. 663.

76 Folliott v. Hunt, 21 Ill. 654; Brigham v. Hawley, 17 Ill. 38; Street v. Swan, 21 Ind. 203.

77 Tait v. Sherman, 10 Iowa, 60. As to deductions, see sec. 2025, herein.

82 Fee v. Orient Fertilizing Co., 36 Fed. 509; Gates v. Fort Smith School Dist. (Ark.); 21 S. W. 1060; Spåhn v. Willman, 1 Penn. (Del.) 125; 39 Atl. 787; Great Northern Hotel Co. v. Leopold, 72 Ill. App. 108; McKinley v. Goodman, 67 Ill. App. 374; Fish v. Glass, 54 Ill. App. 655; Hinchcliffe v. Koontz, 121 Ind. 422;

78 Lisk v. Sherman, 25 Barb. (N. Y.) 433. See also Jack v. McKee, 9 Pa. St. 235; Malaum v. Ammon, 123 N. E. 271; De Pinlly v. St. Louis, Grant Cas. (Pa.) 123. See sec. 2021, 7 La. Ann. 443; Baltimore Base Ball herein. & E. Co. v. Pickett, 78 Md. 375; 28 Atl. 279; 22 L. R. A. 690; Mc

79 See sec. 2061, herein.

80 Shumaker v. Heinemann, 99 Mullan v. Dickinson Co., 60 Minn.

Wis. 251; 74 N. W. 785.

156; 62 N. W. 120; 27 L. R. A. 409;

also been held recoverable. So where the plaintiff had been hired for a certain term at a stipulated salary, and he is, without excuse, discharged before the expiration of such term and is unable to obtain other employment, and there is no evidence that he received anything for his services after his discharge, he may recover the difference between the contract price and the amount he had received. And where an action is brought before the end of the term but the trial does not take place until after the expiration thereof, the measure of damages will be the difference between the contract compensation and the amount received with what the plaintiff was enabled to earn during the term after he was discharged. Again it is decided in numerous cases that though the action is brought before the term has expired, yet there may be a recovery for the whole term, as the employee in such a case has the right to elect to recover the entire damages in a single action and thus avoid the embarrassment and annoyance of repeated litigation. In other decisions, however, such a rule is not favored and in these it is declared that there can only be a recovery down to the time of the trial. And it has been decided that a verdict

85

86

83 Catholic Press Co. v. Ball, 69 Ill. App. 591; Laming v. Peters Shoe Co., 71 Mo. App. 646.

84 Hartsell v. Masterson (Ala. 1902), 31 So. 616.

85 Everson v. Powers, 89 N. Y. 527; 43 Am. Rep. 319.

40 Cent. L. J. 300; Estes v. Desnoyer's Shoe Co., 155 Mo. 577; 56 S. W. 316; Nearns v. Harbert, 25 Mo. 352; Halsey v. Meinrath, 54 Mo. App. 335; Miller v. Woolman-Todd B. & S. Co., 26 Mo. App. 57; Wirth v. Calhoun (Neb. 1902), 89 N. W. 785; Cohen v. Walker, 77 N. Y. Supp. 105; 38 Misc. 114; 11 N. Y. Ann. Cas. 135; Hess v. Citron, 76 N. Y. Supp. 994; 37 Misc. 599; Sommer v. Conhaim, 54 N. Y. Supp. 146; 25 Misc. 166; Southwick v. Bernhard, 43 N. Y. St. R. 77; 17 N. Y. Supp. 478; Heyer v. Cunningham Piano Co., 6 Pa. Super. Ct. 504; 42 W. N. C. 14; Sommer v. Huber, 14 Lanc. L. Rev. (Pa.) 121; Allen v. Maronne (Tenn.), 23 S. W. 113; Fowler v. Waller, 25 Tex. 695; Nations v. Cudd, 22 Tex. 550; All-Meinrath, 54 Mo. App. 335; Wilke v. geyer v. Rutherford (Tex. Civ. App.), Harrison, 166 Pa. St. 202; 30 Atl. 45 S. W. 628; Winkler v. Racine Wag- 1125. on & C. Co., 99 Wis. 184; 74 N. W. 793.

86 Pierce v. Tennessee Coal, I. & R. Co., 173 U. S. 1; 43 L. Ed. 591; 19 Sup. Ct. R. 335; 5 Am. Neg. Rep. 747, rev'g 81 Fed. 814; 26 C. C. A. 632; 52 U. S. App. 355; 8 Am. & Eng. R. Cas. N. S. 742; Hamilton v. Love, 152 Ind. 641; 71 Am. St. Rep. 384; 53 N. E. 181; Pennsylvania R. Co. v. Dolan, 6 Ind. App. 109; 32 N. E. 802; Cutter v. Gillette, 163 Mass. 95; 39 N. E. 1010; Estes v. Desnoyer's Shoe Co., 155 Mo. 577; 56 S. W. 216; Halsey v.

87 Van Winkle v. Satterfield, 58

allowing as damages for a wrongful discharge the full salary for the entire contract period, with no rebate for advance in payment, is excessive where such verdict is returned a number of years before the contract would have expired, and the hiring was for several years at a stipulated yearly salary and it does not appear that the servant could not obtain other employment.

§ 2020. Same subject continued. The damages, however, for a wrongful discharge should not be in disproportion to the loss actually sustained, especially so, where in view of the character of the services to be rendered the employment would necessarily have continued only a short time. And a recovery cannot be had, as for a wrongful discharge, where the employee consents to a termination of the contract. If the employment is for no definite term, commissions which might have been made cannot be recovered for a termination of the employment." So in case no term of employment is fixed, the time when he should as a reasonable man have understood that his services were dispensed with determines the period of time up to which damages for breach of contract should be given, and those damages will be the reasonable value of the time lost between such period and the date of his recall where said recall was not of a character to evidence an intention to terminate the contract. And not even nominal damages can be recovered where an action is prematurely brought before an actual breach and before it is known that there will be any breach or any damages. And where after an employee is discharged his employer on the same day offers to take him back, which Ark. 617; 25 S. W. 1113; 23 L. R. A. 88 Moore v. Central Foundry Co. 853; Mt. Hope Cemetery Assoc. v. (N. J. 1902), 52 Atl. 292. Weidenman, 139 Ill. 67; 28 N. E. 834; 44 Alb. L. J. 522; McMullen v. Dickinson Co., 60 Minn. 156; 62 N. W. 120; 27 L. R. A. 409 (criticized in Hamilton v. Love, 152 Ind. 641; 53 N. E. 181; 71 Am. St. Rep. 384);| Zender v. Seliger-Toothill Co., 16 Misc. (N. Y.) 296, rev'd in 17 Misc. 126; 39 N. Y. Supp. 346; Bassett v. French, 10 Misc. (N. Y.) 672; 31 N. Y. Supp. 667. See Wright v. Falk-A. 669; 104 Fed. 502. ner, 37 Ala. 274,

92

93

89 Hoover v. Haynes (Neb. 1902), 91 N. W. 392.

90 Bell v. Gund, 110 Wis. 271; 85 N. W. 1031.

91 Louisville Soap Co. v. Vance, 22 Ky. L. Rep. 847; 58 S. W. 985. 02 Louisville Soap Co. v. Vance, 22 Ky. L. Rep. 847; 58 S. W. 985.

93 Pellet v. Manufacturers & Merch. Ins. Co. (U. S. C. C. A. Ill.), 43 C. C.

94

offer is refused, it has been decided that all obligations to the employee for the wrongful discharge are thereby ended. If an employee receives under a new employment a larger amount for his services than he would have been entitled to recover for his wrongful discharge, no damages will be allowed for such dismissal. Again, if a servant employed for a certain term at a salary is rightfully discharged, the rule of recovery will be the value of his services, having in view the contract requirements as to his duties and their performance, but the recovery should not exceed his salary.

95

96

§ 2021. Where contract is based on salary and other considerations or on other considerations.-If the consideration for the services to be rendered is a guaranteed yearly sum irrespective of the amount of work done, but if work in excess of a certain amount was done then recompense was to be made therefor, and there is a wrongful discharge, the measure of damages will be a proportionate amount of the guaranteed yearly sum for the unexpired part of the year." And if the compensation for performing the agreed upon services is based upon a certain proportionate share of the gain and there is a breach of the contract, the plaintiff may recover as damages the direct and immediate loss sustained under the contract as a result of such breach. So in case of a wrongful dismissal, an agreed upon percentage upon amounts paid after dismissal on sales made before that time may be recovered as damages and also the salary stipulated for the unexpired term of employment; but prospective profits on sales which might have been made after dismissal are speculative and cannot be allowed. And if expenses for board and lodging while on the road are to be allowed a traveling salesman and he is wrongfully discharged, the length of time he would have been on the road according to the general custom of that trade may be

99

98

94 Dary v. The Caroline Miller, 36 Fed. 507. See Brace v. Calder (C. A.) [1895], 2 Q. B. 253.

97 Kelly v. Carthage Wheel Co., 62 Ohio St. 598; 57 N. E. 984.

98 Schrandt v. Young (Neb. 1902),

5 Laishley v. Goold Bicycle Co., 4| 89 N. W. 607. Ont. Law Rep. 350.

96 Shute & Limont v. McVitie (Tex. Civ. App. 1903), 72 S. W. 433.

99

Laishley v. Goold Bicycle Co., 4 Ont. Law Rep. 350.

considered in estimating the damages.100 So where the evidence furnishes reasonable data upon which to compute the profits claimed to have been lost by a wrongful termination of the contract there may be a recovery therefor. Items which are part of the consideration will not, however, be considered in the estimation of damages where the money value of such items or privileges are not proven. And where a person is wrongfully discharged in violation of a contract by which letters patent are assigned and which provides that the assignor shall be employed by the assignee at a compensation which consists in part of shares of the capital stock of the assignee, the measure of damages recoverable by him should not include the value of the patents at the time of the assignment nor loss which results from his being deprived of his opportunity to develop the patents and thereby increase the value of his stock. So where one is employed as manager of a building at a certain salary before its completion and such salary is the consideration of an agreement for permanent employment in said capacity after the completion of such building, the recovery, upon breach of the latter contract, will be the reasonable value of the services rendered up to the time of completion of said building. Again, if the salary to be paid is contingent upon the net profits and the discharge is for incompetency the damages recoverable will be limited by the contract." And where a person who is employed upon commission and to pay his own expenses is wrongfully discharged, it is decided that he cannot recover the full commissions, which he would have made, as damages but may recover such commissions, less the expenses which would have been incurred by him in making the sales on which he would have been entitled to commissions, based on such sales as he had made during the term of his employment prior to his discharge.

100 Estes v. Desnoyers Shoe Co., 155 Mo. 577; 56 S. W. 316. See Halsey v. Meinrath, 54 Mo. App. 335.

6

3 Crescent Horseshoe & I. Co. v. Eynon, 95 Va. 151; 27 S. E. 935. 'Davidson v. Laughlin, 138 Cal.

1 Schumaker v. Heinemann, 99 320; 71 Pac. 345. Wis. 251; 74 N. W. 785.

2 Odell v. Webendorfer, 50 App. Div. (N. Y.) 579; 64 N. Y. Supp.

171.

5

Glasgow v. Hood (Tenn. 1900), 57 S. W. 162.

с

Wiley v. California Hosiery Co. (Cal.), 32 Pac. 522.