pensation for services."-Where there is a breach of an agreement to leave property or to make compensation by will in consideration of services to be performed, it is held that the reasonable value of such services measures the amount recoverable. Although no damages are recoverable at law where the employer had agreed to bequeath the employee a sum sufficient to equalize all loss sustained by the latter by reason of his refusal to become a member of a firm where it cannot be determined what would be the extent of such loss.41 43 § 2030. Breach by employer-Profits.-Prospective profits cannot be recovered where there is no repudiation of the contract by the employer but only a temporary suspension of payments. But profits may be recovered where the breach is of a contract of employment of a character where profits are contemplated as where the services to be performed are the grading of a railroad. And if a part of the consideration for the services to be rendered consist of a certain percentage on profits or profits made they may be allowed." Again, substantial damages may be recovered for a failure of an employer to give orders for several months, so that plaintiff was necessarily idle, where the contract was to employ the plaintiff for a specified term to do work of a particular kind and the plaintiff's ability to perform such work was well known, and there was evidence of what the profits would have been. 45 § 2031. Breach by employee-Generally. The measure 39 See sec. 1376, herein. 40 Collier v. Rutledge, 136 N. Y. 621; 49 N. Y. St. R. 75; 32 N. E. 626, aff'g 45 N. Y. St. R. 540; 18 N. Y. Supp. 945; Graham v. Graham, 34 Pa. St. 475; West v. Clark (Tex. Civ. App. 1902), 66 S. W. 215. Examine Clark v. West (Tex. Civ. App. 1903), 73 S. W.797, rev'g 72 S. W. 100. But see generally McCabe v. Healy, 138 Cal. 81; 70 Pac. 1008; Price's Admr. v. Price's Admr., 23 Ky. L. Rep. 1086, 1911, 1947; 64 S. W. 746; 66 S. W. 529; Howe v. Watson, 179 Mass. 30; 60 N. E. 415; Leahy v. Campbell, 70 App. Div. (N. Y.) 127; 75 N. Y. Supp. 72; Bruce v. Moon, 57 S. C. 60; 35 S. E. 415; Bayliss v. Pricture, 24 Wis. 651. 41 Russell v. Agar, 121 Cal. 396; 53 Pac. 921. 42 Jones v. New York, 170 N. Y. 580; 63 N. E. 1118, aff'g 57 App. Div. 403; 68 N. Y. Supp. 228. 43 Hawley v. Covey, 9 Utah, 175; 33 Pac. 695. "See sec. 2021, herein. of damages for breach of a contract by an employee to render personal services is the amount necessary to be paid to supply the services under the contract," or the amount of damage sustained may be a question for the jury to determine; " or generally, such sum as will enable the other party to complete the contract according to its terms should be deducted from whatever actual benefit has been derived by the party entitled to recover, or where it is impossible or unreasonable, a full compensation should be awarded for any imperfections in the work or insufficiency of materials and such other damages as are occasioned by the breach. So where the employee fails to do the work which he has agreed to do, the measure of damages will be the money necessarily expended for doing that particular work; 49 or the value of the work required by such failure to be done and not what might have been spent therefor. And if the services are those of a professional, such as an actor, the expenses of preparing for the entertainment, including sums paid to the orchestra and for lights may be included.5 And although an employee may be excused for quitting his employer's service by reason of strikers' threats, yet the damages sustained by such act of the servant should be deducted from his wages. So substantial and not merely nominal damages may be recovered for breach by the employee of his contract in absenting himself wrongfully from service, in refusing for several successive days to work when a nonunion workman is employed, even though he offers shortly after such refusal to work in another part of the premises where there are only union men but his offer is rejected. But where there is no agreement or request that an architect should make no disclosure of a proposed building on the site of rented premises and he furnishes a drawing of the contemplated building to a paper whereby tenants learning of the same remove from the 46 Haskell v. Osborn, 33 App. Div. (N. Y.) 127; 53 N. Y. Supp. 361. 47 Steinberg v. Gebhardt, 41 Mo. 520. 48 Kelley v. Bradford, 33 Vt. 35. 49 Orr Water Ditch Co. v. Reno Water Co., 19 Nev. 60; 6 Pac. 72. 50 State v. Ingram, 5 Ired. L. (N. C.) 441. 51 Hughes v. Robinson, 60 Mo. App. 194; 1 Mo. App. Repr. 76. 52 Fisher v. Walsh, 102 Wis. 172; N. W. 437; 43 L. R. A. 810. 78 53 Bowes v. Press (C. A.) [1894], 1 Q. B. 202. premises, the losses so sustained by the employer of the architect cannot be recovered from him.54 Nor can liquidated damages be recovered from an employee under a clause in a contract providing therefor in case of a breach of a stipulation to give a notice to quit, where such provision is void. Nor can actual damages be recovered unless the employer tries and fails to secure other persons to perform the work, it being such as others could perform.56 § 2032. Partial breach of agreement to locate and survey lands. If there is a contract to enter and locate lands for a party, but only a part are entered upon and examined and no damages are sustained by the nonlocation and failure to enter upon and examine the same, then there can be no recovery but if by reason of not entering upon and examining the lands as agreed, the defendant entered inferior or worthless lands the plaintiffs would be entitled to recover their whole loss." 59 § 2033. Employee's failure to perform duties-Improper or imperfect work-Knowledge of peculiar character of work-Violation of instructions.-The failure of an employee to perform his duties throughout the term may properly be considered, when alleged and offered to be proven, upon the question of damages. So nominal damages are recoverable for the loss sustained by failure of an abstractor of titles to land to abstract a mortgage and lis pendens. And if a person employed to ascertain the area of land reports a greater area than it in fact contains, the value of the deficit may be recovered from him. If the services to be performed are of a special and peculiar character and the work is to be done upon specific property having no market value and the employee has knowledge of its exceptional character and of the necessity of its being done to enable the plaintiff to fulfill a certain contract or lose it, and that the article could not be substituted, the de 54 Havens v. Donohue, 111 Cal. 297; 43 Pac. 962. 57 Simmons v. Putnam, 11 Wis. 193. 58 Bruno v. Walsh, 55 N. Y. St. R. 55 Schimpf v. Tennessee Mfg. Co. 163; 25 N. Y. Supp. 511; 5 Misc. 355. (Tenn.), 6 S. W. 131. 56 59 Williams v. Hanley, 16 Ind. App. Fuqua v. Massie, 18 Ky. L. Rep. 464; 45 N. E. 622. 843; 37 S. W. 587. 60 Clark v. Marshall, 34 Mo. 429. fendant who has spoiled the article will be held for the entire loss sustained by the plaintiff upon the ground that such damages must have been reasonably contemplated as resulting from inability to perform.61 But an owner, who has recovered judgment for nominal damages against a building contractor for improper performance of work is thereby precluded from recovering damages from an architect for improper supervision of such work where the amount of the verdict has been paid or tendered. Again where one employs a messenger of a telegraph messenger company, and the latter does not know of the instructions given such messenger, it is not liable for the loss resulting from the violation by such messenger of instructions given by the sender, although otherwise the resulting loss could be recovered from the company, but if instructions are so violated no recovery can be had where no loss is proven to have resulted therefrom." § 2034. Liability of master for servant's negligence or torts-Servant's wilful, malicious, etc., acts-Exemplary damages. In order to recover punitive damages against a master for the wrongful, negligent or grossly negligent acts of his servant, such acts must have been authorized, affirmed or ratified by the master, or they must have been done in the line of the servant's duty or employment, or the master must have known of the servant's unfitness, and if the servant's acts are wilful, wanton or malicious, the master is liable for exemplary damages if such acts were authorized, directed or ratified by him, or the latter was implicated therein or instigated the same, or they were done for the master in the line of the servant's duty, or were generally within the scope of his authority. If a third person has recovered damages from the 65 61 Boughton v. Petigny, 72 App. | by agent, broker, etc., see sec. 2041, Div. 76; 76 N. Y. Supp. 125, aff'g 73 N. Y. Supp. 139; 36 Misc. 203. herein. 64 See sec. 2055, herein, as to agents. See also secs. 135 et seq., herein. master by reason of the employee's negligence, the amount so paid is recoverable from the employee by the master. Admx. v. 843. 66 Middleton, 23 Ky. L. Rep. | (rule stated as to liability and nonliability); Pioneer Fireproof Const. Co. v. Sunderland, 87 Ill. App. 213, aff'd 58 N. E. 928 (held liable for grossly negligent, wilful, etc., conduct of servant); Alton R. & Illum. Co. v. Cox, 84 Ill. App. 202 (where act injuring third person is an assault committed and is inseparable, although not of itself an authorized act, from acts done in obeying master's instructions, the latter is liable); Brudi v. Luhrman (Ind. App. 1901), 59 N. E. 409 (liable when servant acting in scope of employment); Wabash R. Co. v. Linton, 26 Ind. App. 596; 60 N. E. 313; Dolan v. Hubinger, 109 Iowa, 408; 80 N. W. 514 (act must be done within scope of servant's au As to master's liability in damages for servant's wrongful, etc., acts, see Steele v. May, 135 Ala. 483; 33 So. 30 (held liable); Clowdis v. Fresno F. & I. Co., 118 Cal. 315; 3 Am. Neg. Rep. 326 (is liable); Fiske v. Enders, 73 Conn. 338; 47 Atl. 681 (not liable where servant, although having gen-thority); McDonald v. Franchere, 102 eral instructions, is not acting within Iowa, 496; 71 N. W. 427 (held liable limits of authority but only in his for servant's assault); Brady v. Chiown matters); Camp v. Hall, 39 Fla. cago & G. W. R. Co. (U. S. C. C. A. 535; 22 So. 792 (liable even though Iowa), 52 C. C. A. 48; 114 Fed. 100; servant's particular act was not ex- 57 L. R. A. 712 (test of liability is pressly authorized, where servant power of master to command); Miswas acting within apparent scope of souri Pac. R. Co. v. Divinney (Kan. authority); Central of Ga. R. Co. v. 1902), 69 Pac. 351 (not liable for asBrown, 113 Gá. 414; 38 S. E. 989; sault unless done within exercise of Illinois Cent. R. Co. v. King, 179 Ill. authority conferred); Chicago, R. I. 91; 53 N. E. 552; 13 Am. & Eng. R. & P. R. Co. v. Parks, 59 Kan. 709; 54 Cas. N. S. 29, aff'g 77 Ill. App. 581 (if Pac. 1052; 5 Am. Neg. Rep. 35 (is act within scope of authority, master liable); Baltimore Consol. R. Co. v. liable even though wilful, malicious, Pierce, 89 Md. 495; 43 Atl. 940; 6 Am. etc.); Kinnare v. Chicago, 171 Ill. Neg. Rep. 539; 45 L. R. A. 527 (mere 332; 49 N. E. 536, aff'd 70 Ill. App. fact that servant's act was wanton, 106 (board of education, qualification malicious or wilful, is of itself inof rule as to responsibility as master); sufficient to relieve master); BaraFranklin L. Ins. Co. v. People, 103 basz v. Kabat, 86 Md. 23; 37 Atl. 720; Ill. App. 554, aff'd 66 N. E. 379 (wil- 45 Cent. L. J. 171; 3 Am. Neg. Rep. ful and malicious acts included when 31 (pastor of church not liable for done within scope of authority); Belt servant's causing an arrest, although R. Co. v. Banicki, 102 Ill. App. 642 | employed by pastor as doorkeeper); Costa v. Yoachim, 104 La. 170; | 43 Conn. 244; 21 Am. Rep. 647. 28 So. 992. See also Smith v. Foran, |