Bruell v. Colell

McAdam, J. The verdict settles all disputed questions of fact in favor of the plaintiff, and the only question upon this appeal is whether the trial justice applied the proper rule of damages. The contract sued on was made September 37, 1879, and was to continue for six months. The action was commenced December 5, 1879, some months before the term of service 'expired. The action was tried May 13, 1880, over a month after the contract terminated. The trial judge allowed the plaintiff to recover damages up till the end of the contract of service, and the appellant claims that in doing so the learned judge erred, and he insists that the damages should have been limited to December 5, 1879, when the action was commenced. The action being for a wrongful discharge, and haying been tried after the time when the damages were in their nature fixed and unalterable, we think the plaintiff was entitled to the recovery which he obtained. It is said that these views are in conflict with those expressed in Toles v. Hazen (57 How. Pr. 516). We have examined that case and have failed to observe that the precise question presented here has been determined there, or otherwise we would have disposed of this appeal upon the authority of that case. It follows, [309] therefore, that the judgment appealed from must be affirmed, with costs. Goepp, J., concurred; Hawes, J., dissented. This decision was on appeal affirmed by the New York common pleas, general term.