Gibson v. Whip Publishing Co.

Rombauer, J., delivered the opinion of the court.. The only complaint made upon this appeal is, that,, upon the uncontroverted testimony, the plaintiff, appellant, was entitled to a judgment for one hundred and. thirty dollars, and the trial court rendered judgment in his favor for nominal damages only. The following facts were shown upon the trial:: The plaintiff was a cartoon artist, and, at the date of the contract sued upon, in the employ of defendants’ predecessor at a weekly salary of twenty dollars. When the defendants took, charge of the business they continued the former employes and agreed to pay the plaintiff his. [453] former compensation, and in addition thereto five dollars per week in stock of a corporation which they expected to organize for the purpose of running the business. The business proved a total failure and the corporation never was organized. The testimony concedes that had it been organized the stock would have been worthless. The plaintiff, at the date of his discharge, was paid all that was due him at the rate of twenty dollars per week. Some time after his discharge he demanded stock for the additional five dollars per week, and upon defendants’ failure to give it to him brought this action. The suit is one for breach of an express contract, and not upon an implied contract, for the value of plaintiff’s services. No testimony was offered in regard to the value of plaintiff’s services. It results that the class of cases which hold that, in case performance is rendered impossible by the act of the employer, the employe may sue for the reasonable value of the services performed, must be at once laid out of view. The court justly found that the defendants were liable, because if a party to a contract disables himself from performing it, he may be sued for the breach. On the other hand, the court found, with equal propriety, that the plaintiff was entitled to nominal damages only, as the measure of damages is the value lost by the plaintiff owing to defendants’ failure in not performing the stock part of the -contract — the damages in these cases being purely compensatory. As no stock had ever been issued, the plaintiff was entitled to a money judgment for the highest probable market value of the stock if it had been issued. As the court found, upon very satisfactory evidence, that such probable value was nominal, the plaintiff was entitled to nominal damages only. The cases of Railroad v. Kelly (5 Ohio St. 180); Bates v. Railroad (3 T. & C. [N. Y.] Sup. Ct. 16), and Porter v. Railroad (32 Me. 539), are directly in point. The rule, which turns a debt, payable in property, into a money debt for a corresponding amount, has no [454] application to a case of this character. We can properly say, with the learned judge who delivered the opinion in a case almost identical in its facts with the one at bar, “the law relating to trade notes and cases of that kind has no application to the agreement between these parties. The agreement was one of exchange of work for stock, in which monetary terms were necessarily used, not for the purpose of expressing real values, but as the only mode of expressing quantities and proportions. 5 Ohio St. 194. Judgment affirmed. All concur.