Pindar v. Jenkins

Chester, J.: The action is for damages for an alleged wrongful discharge of the plaintiff from the service of the defendant. The plaintiff gave evidence tending to establish a contract of employment by the defendant to -work his farm for the period of one year- at an agreed' compensation. After working a few weeks the plaintiff was discharged, as he claims, by the defendant without cause. He was paid for the time he worked, and he seeks in this action to recover the balance of the contract price. On cross-examination the plaintiff admitted that he had sought no other position after his discharge. In his charge to the jury the court instructed them that if they found .that the defendant had broken his contract with the plaintiff they could find a verdict in his favor for only six cents. The jury found for the plaintiff and rendered a verdict for that amount. The appellant insists that the burden rested upon the defendant to show that employment might have been found, or that it had been offered'and declined. That undoubtedly is the rule under the authorities. (Allen v. Glen Creamery Co., 101 App. Div. 306; Howard v. Daly, 61 N. Y. 362.) But here the defendant satisfied the burden resting upon him when he drew out the fact upon cross-examination of the plaintiff that he had-not since his discharge sought to obtain another position. As was said in Fuchs v. Koerner (107 N. Y. 529, at 530), it was “the plaintiff’s duty to use reasonable diligence in procuring another place of the same kind, in order to relieve the defendant as much as possible from the loss consequent upon his breach of contract.” The fact that the defends - ant satisfied the burden resting upon him by drawing the proof out upon cross-examination, rather than by evidence produced at some other stage of-the.trial of.in some other way, is of no consequence. (Ruland v. Waukesha Water Co., 52 App. Div. 280; Milaqe v. [713] Woodward, 186 N. Y. 252.) So long as the proof stands in the case uncontradicted the defendant is entitled to the benefit of it. The judgment and order should be affirmed, with costs. • All concurred; Cochrane, J., in memorandum; Kellogg, J., dissented in opinion, in which Smith, P. J., concurred. Cochrane, J. (concurring): We are not at liberty to assume that plaintiff as part of his compensation was to receive maintenance either for himself or his fam- ■ ily. Neither in his complaint nor in his testimony does he so state. But the entire contract as alleged and testified to by himself is that he was to receive thirty-five dollars per month for three months and fifty dollars per month for nine months to work and manage defendant’s farm. The judicial mind naturally concludes that if he was to receive greater or other compensation he would have said so and for two reasons, first, because his oath as a witness bound his conscience to. tell the whole truth and not merely apart thereof; and, second,- because it was manifestly to his interest in this 'instance- so to do. On rebuttal his wife was called as a witness and testified that she was to perform certain household duties which she described. But it does not appear whether she was to perform such duties for her husband or for the defendant, nor that they constituted any part of plaintiff’s contract with the defendant, and again the judicial mind is forced to the conclusion that they did not constitute any part of such contract for the simple reason that plaintiff has not said so. When plaintiff was wrongfully discharged he went to work for his aunt on a farm and held that position down to the time of the trial and received maintenance for himself and his family. Of course there might have been myriad reasons why he took and kept that position and never sought any other, but if there was a single good reason he- alone of all the children of men knew what it was, and once,again the judicial mind concludes that had any such reason existed he would have said so, not only because he was the only person on earth who could do so but also because it was to - his interest to do so as an excuse for failing to seek other employment.- He does not even claim that by his contract with his aunt he was bound to remain with her as much as a single week. We cannot assume that the maintenance of himself and his family which he [714] received from his aunt was worth less than the compensation which he was to receive from defendant. If a man is wrongfully discharged and it appears as in this case that he has had constant and similar employment elsewhere it seems to. me that it rests upon him to show that the compensation received by him was less than that agreed to be paid by the employer who wrongfully discharged him for the reason that it is a fact peculiarly within his own knowledge, and if that is so then the same principle holds good, even though as in this case the substituted employment of the wrongfully discharged employee is compensated otherwise than in moneyl It may be that plaintiff has been wronged by defendant, but on the record which comes to us we cannot say so without assuming a great many' facts which if true could and should have been testified to by plaintiff. His contract with defendant as alleged and proved was in no respect unusual, extraordinary or peculiar. When discharged the law required him to make a reasonable effort to find other similar employment. What constitutes a reasonable' effort may generally be a question of fact, but the trouble about this case is that no effort whatever was made, except to take similar employment with the aunt, and if there was anything about that employment which was less favorable than the employment which defendant agreed to give or .which rendered it expedient or excusable for plaintiff to forego and abandon all efforts for other employment he should have said so. He is the only person in possession of such facts and should have disclosed them to the court. Hence I favor an affirmance of the judgment. .