1358. Contracts of employment. If an employer fails to pay the promised wages or salary after the employee has completed his services or any divisible portion of them for which separate payment was promised, the measure of damages is the amount of money which was promised. If the employee was wrongfully discharged before fully completing his service he is entitled to recover not only for any divisible portion of his promised salary which he has already earned, but for the injury caused him by not allowing him to complete his services and earn the promised reward.1 The rule of avoidable consequences here finds frequent application. The obvious consequence of this injury is the failure of the employee to receive the pay which he was promised, but on the other hand his time is left at his own disposal. If the employee remains idle the loss of his pay is actually suffered without deduction. If, however, the employee can obtain other employment he can avoid part at least of these damages. Therefore, in an action by the employee, the net amount of what he earned, or what he might reasonably have earned in other employment will be deducted from what he would have received. This is in effect giv1 See supra, § 1028. 2 In re English Joint Stock Bank, 2 ing to the employee the difference in value between the contract price for his labor and its value when used in other directions. The rule is therefore in effect the same as in a contract to buy and sell goods except that services of a particular man can never be regarded as having a definite market value in the same sense as standard goods have, and, therefore, the particular use which an employee is able to make of his time after breach of contract is always important, while in contracts for the sale of goods the use which the seller in fact makes of the goods is not so often material. Moreover, human feelings must be taken into account in contracts of employment. An employee "employed in a special service . . . is not obliged to engage in a business that is not of the same general character, in order to mitigate the defendant's damages." 4 1359. Mitigation or enhancement of damages. An offer by the employer to employ again a discharged employee will mitigate the damages to which he is entitled if noth L. R. 4 Eq. 350; Perry v. Simpson Waterproof Mfg. Co., 37 Conn. 520; Ansley v. Jordan, 61 Ga. 482; Fisher v. Massillon Iron & Steel Co., 209 Ill. App. 616; School Directors v. Birch, 93 Ill. App. 499; Hinchcliffe v. Koontz, 121 Ind. 422, 29 N. E. 271, 16 Am. St. Rep. 403; Byrne v. Independent School Dist., 139 Ia. 618, 117 N. W. 983; Bertholf v. Fisk, 182 Ia. 1308, 166 N. W. 713; Mortonville Coal Co. v. Sisk, 145 Ky. 55, 139 S. W. 1086; Sutherland v. Wyer, 67 Me. 64; Baltimore Base Ball Club Co. v. Pickett, 78 Md. 375, 28 Atl. 279, 22 L. R. A. 690, 44 Am. St. Rep. 304; Maynard v. Royal, etc., Co., 200 Mass. 1, 85 N. E. 877; Prichard v. Martin, 27 Miss. 305; King v. Will J. Block Amusement Co., 115 N. Y. S. 243; Golberg v. Weinberger, 115 N. Y. S. 1098; Hutner v. Bernstein, (Supr. Ct. App. Term) 168 N. Y. S. 529; Currier v. W. M. Ritter Lumber Co., 150 N. C. 694, 64 S. E. 763, 134 Am. St. Rep. 955; Kirk v. Hartman, 63 Pa. 97; Coates v. Allegheny Steel Co., 234 Pa. 199, 83 Atl. 77; Latimer v. New York Cotton Mills, 66 S. C. 135, 44 S. E. 559; Fowler v. Waller, 25 Tex. 695; G. A. Kelly Plow Co. v. London (Tex. Civ. App.), 125 S. W. 974; Willoughby v. Thomas, 24 Gratt. 521; Winkler v. Racine Wagon Co., 99 Wis. 184, 74 N. W. 793. The employer is not to be credited with wages which the employee earned in another employment but could not collect. Bassett v. French, 10 N. Y. Misc. 672, 31 N. Y. S. 667. Leatherberry v. Odell, 7 Fed. 641; Strauss v. Meertief, 64 Ala. 299, 38 Am. Rep. 8; Jackson v. Independent School Dist., 110 Ia. 313, 81 N. W. 596; Farrell v. School District, 98 Mich. 43, 56 N. W. 1053; Cooper v. Stronge & Warner Co., 111 Minn. 177, 126 N. W. 541, 27 L. R. A. (N. S.) 1011; Fuchs v. Koerner, 107 N. Y. 529, 14 N. E. 445; Kramer v. Wolf Cigar Stores Co., 99 Tex. 597, 91 S. W. 775. ing connected with the discharge makes a renewal of the service inequitable. It has been held that supervening illness of the employee which would have prevented him from fulfilling his contract does not diminish the damages for which the employer who wrongfully discharged him is liable; but it would seem possible for the jury to find that such illness would have occurred had he not been discharged, and if they so find, damages should be diminished accordingly, as they should be if the servant died after his discharge and before the end of the term for which he was employed." If the employee after vainly seeking other employment works on his own account, and thereby secures some profit, this should also be deducted if the work could not have been done had the original contract remained in force. It may sometimes happen that the employee's injury consists not only in his failure to receive the agreed compensation, but also in not being allowed to do the work for which he was engaged, and which would increase his skill or reputation. It is not often, however, that the employee can be entitled to damages exceeding the wages or salary promised in the contract. It is true that not infrequently a motive for entering into a contract of employment, and an advantage of pecuniary value to the employee in doing so, is the improvement in skill or the enhancement of reputation which might be derived from performance of the contract. An actor obviously derives advantage from appearing in a successful play at a fashionable theatre. Perhaps in less degree, but in similar kind, a salesman derives advantage from employment by a successful firm of high character; and a housemaid also may find it to her future pecuniary advantage to have been employed in the service of Brace v. Calder, [1895] 2 Q. B. 253; Birdsong v. Ellis, 62 Miss. 418; Mitchell v. Toale, 25 S. C. 238, 60 Am. Rep. 502. Bassett v. French, 10 N. Y. Misc. 672, 31 N. Y. S. 667. 7See Ga Nun v. Palmer, 202 N. Y. 483, 489, 96 N. E. 99, 36 L. R. A. (N. S.) 932; Rubin v. Siegel, 188 N. Y. App. Div. 636, 177 N. Y. S. 342. Gates v. School District, 57 Ark. 370, 21 S. W. 1060, 38 Am. St. Rep. 249; Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 23 L. R. A. 853; Huntington v. Ogdensburgh, etc., R. Co., 33 How. Pr. 416; Richardson v. Hartmann, 68 Hun, 9, 22 N. Y. S. 645; Kramer v. Wolf Cigar Stores Co., 99 Tex. 597, 91 S. W. 775, 777. But see contra, Harrington v. Gies, 45 Mich. 374, 8 N. W. 87. See supra, § 1015. fashionable people. If such an employee is wrongfully discharged, therefore, there is real deprivation of what would have been obtained by performance of the contract, beyond the amount of money damages calculated on the basis of the agreed pecuniary compensation. Nevertheless, such damages cannot generally be recovered. Without much discussion, the wages or salary promised has been made the sole basis of damage in the numerous actions by employees that have been brought. On the whole, the conclusion reached in these cases seems sound, for in the absence of any proof to the contrary, it must be assumed that the parties agreed that the money promised by the employer should be the full equivalent of the services to be rendered by the employee. If indeed either the contract or the surrounding circumstances indicate the contrary the employee should be allowed to recover other damages. 10 Whether such indication must be found in the language of the contract or may be sought in the probable views of the parties to the contract not stated in their agreement is not so clear; 11 but if the surrounding circumstances in connection with the 10 In Bunning v. Lyric Theatre, 71 L. T. 396, the defendants engaged the plaintiff as musical director of their theatre and agreed expressly that his name should be announced as such director in certain daily newspapers and also upon their bills and programs. The contract recited that Mr. Bunning had no experience in conducting a theatre orchestra in England and that he therefore agreed to give his services free of charge for a certain period. The defendants duly paid the plaintiff's salary and never dismissed him from their service, but they omitted to advertise him as musical director or to employ him as such. For this breach of contract the plaintiff sought damages upon the ground that the conduct of the defendants had deprived him of the professional reputation which he would have gained had the defendants fulfilled their bargain. He was awarded substantial damages by Stirling, J. 11 In Turpin v. Victoria Palace, Ltd., [1918] 2 K. B. 539, it appeared that the plaintiff, a music hall performer, without metropolitan reputation, had been employed to appear at the Victoria Palace, a well known London music hall. It was found as a fact that a performer who secured the approbation of the Victoria Palace, had opened the gateway of London success, for there the managers of other London halls attended to select those who succeeded and offer them important and lucrative engagements. The defendants repudiated their bargain with the plaintiff, and it can hardly be doubted that she suffered thereby a real damage beyond the amount of her fixed salary. Nevertheless, the court confined her damages to that amount. It may be thought the speculative character of the other damage is a ground for supporting the decision. nature of the contract clearly show that the promised salary or wages was not contemplated as the full return which the employee was to receive, there seems no reason why any additional damages, not too speculative in character, should not be allowed.12 For breach of the employee's contract the master may recover damages either total13 or partial, 14 according as the breach involves the dissolution of the relationship or not. Consequential damages are also recoverable if the case can be brought within the general rules governing such damages. If an employee has been guilty himself of a breach of the contract, but not of such a character as to afford a complete defense to the employer, the latter may reduce the employee's damages by recoupment or counterclaim. 15 § 1360. Burden of proof. It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of some kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract. 16 12 In Manubens v. Leon, [1919] 1 K. B. 208, a wrongfully discharged employee was allowed damages based not only on wages payable by the defendant, but also on tips customarily received from the defendant's customers. 13 Cannon Coal Co. v. Taggart, 1 Col. App. 60, 27 Pac. 238; Riech v. Bolch, 68 Iowa, 526, 27 N. W. 507; Myers R. S. Co. v. Griswold, 77 Neb. 487, 109 N. W. 736; Peters v. Whitney, 23 Barb. 24. 14 E. E. Thomas Fruit Co. v. Start, 107 Cal. 206, 40 Pac. 336; Lee v. Clements, 48 Ga. 128; Alberts v. Stearns, 50 Mich. 349, 15 N. W. 505; Still v. Hall, 20 Wend. 51; Branch v. Chappell, 119 N. C. 81, 25 S. E. 783. 15 Columbus Co. v. Clowes, [1903] 1 K. B. 244; Dobbins v. Grær, 50 Colo. 10, 114 Pac. 303; Weymer v. Belle Plaine &c. Co., 151 Ia. 541, 132 16 Maynard v. Royal &c. Co., 200 Mass. 1, 6, 85 N. E. 877, citing. Mathesius v. Brooklyn Heights Railroad, 96 Fed. 792; Troy Co. v. Logan, 96 Ala. 619, 12 So. 712; Fitzpatrick Square Bale Ginning Co. v. McLaney, 153 Ala. 586, 44 So. 1023; Rosenberger v. Pacific Coast Ry. Co., 111 Cal. 313, 43 Pac. 963; Saxonia Mining, etc., Co. v. Cook, 7 Col. 569, 4 Pac. 1111; Realty Co. v. Ellis, 4 Ga. App. 402, 61 S. E. 832; Roberts v. Crowley, 81 Ga. 429, 7 S. E. 740; Fuller v. Little, 61 Ill. 21; Hamilton |