Appellee filed his bill in the chancery court of Prentiss county against appellant, a nonresident corporation of Wilmington, N.C., for damages for the breach of a contract of employment by the appellant theretofore entered into by the parties. The bill was for a foreign attachment in chancery based on the ground that appellant was a nonresident of the state and had debtors in Prentiss county subject to the jurisdiction of the court; the debtors were made garnishee defendants. Appellant appeared and answered the bill, denying its material allegations. The cause was heard on the bill, answers, and *Page 412 proofs, resulting in a decree in appellee's favor in the sum of eight hundred thirty-four dollars and fifty-six cents, from which decree appellant prosecutes this appeal.
Appellant is a corporation organized under the laws of the state of North Carolina, with its place of business at Wilmington in that state, and was engaged in the wholesale of general work clothing during the years 1929 and 1930 and at the time of the trial of this cause. In September, 1929, appellant employed appellee as its traveling salesman for its line of clothing in this state for a period of one year, beginning October 1st of that year. Under the terms of the contract appellee was to be appellant's exclusive representative in this state for the period of his employment. Appellee was to pay his own traveling expenses, and his compensation was to be certain commissions on all goods sold to the trade. Appellee was to receive no fixed salary whatever; his compensation was based exclusively on commissions. Appellee traveled the state under his contract until the latter part of December, 1929, when he was discharged by appellant. Appellant denied that it had employed appellee for any fixed time, but the chancellor found as a fact, and was justified by the evidence in so finding, that he was employed for a year beginning the 1st of October, 1929, and that appellant, without any legal right, breached the contract. Appellant, after discharging appellee, employed one Beard to take appellee's place as its traveling salesman in this state. Beard was employed on the same terms as appellant was employed, except his year began the 1st of January, 1930. Beard's gross commissions for the balance of the period for which appellee was employed were eight hundred thirty-four dollars and fifty-six cents. Appellee contended that that amount was the measure of his damages for the breach by appellant of his contract of employment, and the chancellor so held *Page 413 and rendered a decree in appellee's favor for that amount.
The evidence showed without conflict that eight hundred thirty-four dollars and fifty-six cents was Beard's gross commissions for the balance of the period for which appellee was employed; that appellant advanced to Beard during that period for traveling expenses the sum of two thousand eight hundred seventy-five dollars; and that his commissions amounting to eight hundred thirty-four dollars and fifty-six cents taken from that left a balance due appellant by Beard of two thousand forty dollars and forty-four cents. In other words, that Beard, for the period mentioned, instead of making eight hundred thirty-four dollars and fifty-six cents, lost two thousand forty dollars and forty-four cents. According to appellee's own testimony his traveling expenses were fifty-two dollars and fifty cents per week. It is apparent therefore that the court in rendering the decree in this case adopted as appellee's measure of damages the gross commissions which he would probably have earned for the balance of the period of his employment if the contract had not been breached by the appellant.
Appellee seeks to justify the decree of the court by the decision in the case of Brach v. Stewart, 139 Miss. 818,104 So. 162, 163, 41 A.L.R. 1172. Appellee assumes that the measure of damages approved in that case was the amount of the gross commissions of the invading salesmen who took Stewart's place. There is nothing in the opinion of the court to justify that position. It is true that the opinion states that the measure of damages was the amount of the commissions earned by the invading salesmen, but nowhere is it stated that gross commissions were meant instead of net commissions. On the contrary, the court in laying down the governing principles excluded the idea that the measure of damages was the amount of the gross commissions instead of the net commissions. This language is used in the opinion: *Page 414 "The measure of appellee's damages for the breach of his contract is the amount of commission of which appellee is deprived on account of sales made by the appellant in the invaded territory." And the court quoted with approval from the California case referred to in the opinion, in which the California court held that the measure of damages was the profits of which the plaintiff was deprived by the sales made through the invading salesmen. The briefs of counsel in the Brach-Stewart Case do not discuss this question, nor is there statement in the opinion of the court as to whether gross commissions were proven or net commissions. We assume, therefore, that the damages proven in that case were the net commissions of the invading salesmen instead of the gross commissions, and if that be not true still the decision is not a precedent for appellee's position, because the point was neither made nor decided in that case.
It is elementary that where actual damages alone are sought to be recovered for an injury full compensation is the measure. In this case appellee has recovered a judgment for eight hundred thirty-four dollars and fifty-six cents, notwithstanding the evidence showed without dispute that if his contract had not been breached by appellant he would have lost instead of made money. However, a final decree should not be rendered here in the case, because under the law, although appellee may have suffered no actual damages, he was entitled to recover at least nominal damages for the breach of his contract.
Reversed and remanded.
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