Sutherland v. Wyer

Virgin, J. The plaintiff contracted with the defendants to “play first old man and character business, at the Portland museum, and to do all things requisite and necessary to any and all performances which” the defendants “shall designate, and to conform strictly to all the rules and regulations of said theatre,” for thirty-six weeks, commencing on Sept. 6, 1875, at thirty-five dollars per week; and the defendants agreed “to pay him thirty-five dollars for every week of public theatrical representations during said season.” By one of the rules mentioned, the defendants “reserved the right to discharge any person who may have imposed on them — 68 — by engaging for a position which, in-their judgment, he is incompetent to fill properly.” The plaintiff entered upon his service under the contract, at the time mentioned therein, and continued to perform the theatrical characterizations assigned to him, without any suggestion of incompetency, and to receive the stipulated weekly salary, until the end of the eighteenth week; when he was discharged' by the defendants, as they contended before the jury, for incompetency under the rule; but, as the plaintiff there contended, for the reason that he declined to accept twenty-four dollars per week during the remainder of his term of service. Three days after his discharge and before the expiration of the nineteenth week, the plaintiff commenced this action to recover damages for the defendants’ breach of the contract. The action was not premature. The contract was entire and indivisible. The performance of it had been commenced, and the plaintiff been discharged and thereby been prevented from the further execution of it; and the action was not brought until after the discharge and consequent breach. Howard v. Daly, 61 N. Y. 362, and cases. Dugan v. Anderson, 36 Md. 567, and cases. The doctrine of Daniels v. Newton, 114 Mass. 530, is not opposed to this. Neither do the defendants insist that the action was prematurely commenced ; but they contend that the verdict should be set aside as being against the'weight of evidence. The verdict was for the plaintiff. The jury must therefore, have found the real cause of his discharge to be his refusal to consent to the proposed reduction of his salary. The evidence upon this point was quite conflicting. Considering that all the com pany were notified, at the same time, that their respective salar ies would be reduced one-third, without assigning any such cause as incompetency ; that no suggestion of the plaintiff’s incompeteney was ever made to him, prior to his discharge; and that his written discharge was equally silent upon that subject, we fail to find sufficient reason for disturbing the verdict upon this ground of the motion, especially since the jury might well find as they did on this branch of the case, provided they believed the testimony in behalf of the plaintiff. There are several classes of cases founded both in tort and in — 69 — contract, wherein the plaintiff is entitled to recover, not only the damages actually sustained when the action was commenced, or at the time of the trial, but also whatever the evidence proves he will be likely to suffer thereafter from the same cause. Among the torts coming within this rule, are personal injuries caused by the wrongful acts or negligence of others. The injury continuing beyond the time of trial, the future as well as tiie past is to be considered, since no other action can be maintained. So in cases of contract the performance of which is to extend through a period of time which has not elapsed when the breach is made and the action brought therefor and the trial had. Remelu v. Hall, 31 Vt. 582. Among these are actions on bonds or unsealed contracts stipulating for the support of persons during their natural life. Sibley v. Rider, 54 Maine, 463. Philbrook v. Burgess, 52 Maine, 271. The contract in controversy falls within the same rule. Although, as practically construed by the parties, the salary was payable weekly, still, when the plaintiff was peremptorily discharged from all further service during the remainder of the season, such discharge conferred upon him the right to treat the contract as entirely at an end, and to bring his action to recover damages for the breach. In such action he is entitled to a just recompense for the actual injury sustained by the illegal discharge. Prima faeie, such recompense would be the stipulated wages for the remaining eighteen weeks. This, however, would not necessarily be the sum which he would be entitled to; for in cases of contract as well as of tort, if is generally incumbent upon an injured party to do whatever he reasonably can, and to improve all reasonable and proper-opportunities to lessen the injury. Miller v. Mariners’ Church 7 Maine, 51, 56. Jones v. Jones, 4 Md. 609. 2 Greenl. Ev. § 261, and notes. Chamberlin v. Morgan, 68 Pa. St., 168. Sedg. on Dam. (6th Ed.) 416,417, cases supra. The plaintiff could not be justified in lying idle after the breach ; but he was bound to use ordinary diligence in securing employment elsewhere, during the remainder of the term; and whatever sum he actually earned or might have earned by the use of reasonable diligence, should be deducted from the amount of the unpaid stipulated wages. And — 70 — this balance with interest thereon should be the amount of the verdict. Applying the rule mentioned, the verdict will be found too large. By the plaintiff’s own testimony, he received only $60, from all sources after his discharge — $25 in February and $35 from the 10th to the 20th of April, at Booth’s. His last engagement was for eight weeks, commencing April 10, which he abandoned on the 20th, thus voluntarily omitting an opportunity to earn $57, prior to the expiration of his engagement with the defendants, when the law required him to improve such au opportunity, if reasonable and proper. "We think he should have continued the last engagement until May 6, instead of abandoning it and urging a trial in April, especially inasmuch as he could have obtained a trial in May, just as well. The instructions taken together were as favorable to the defendants as they were entitled to. If, therefore, the plaintiff will remit $57, he may have judgment for the balance of the verdict; otherwise the entry must be verdict set aside and new trial granted. Appleton, C. J., Dickerson, Barrows, Daneorth and Libbey, JJ., concurred.