Everson v. Powers

Tract, J.

The only question presented upon this appeal relates to the rule of damages to be applied in an action for a breach of a contract of employment where the servant has entered upon the performance of a contract, has been discharged, and brings his action before the expiration of the term, but the trial does not occur until afterward.

The case does not contain the evidence taken upon the trial, *529 and the question is presented by an exception to the charge of the judge.

The judge charged that, if the plaintiff was entitled to recover, he was entitled to “the difference as between what the contract called for for the year 1878 and the amount he actually received, and what he was enabled to earn after his discharge that year, which would be $970. It appears that he used every endeavor to obtain employment after he was discharged, but with what result his testimony shows.” To this charge the defendants’ counsel excepted. A similar charge was given as to the rule of damages applicable to the case of Yager, and a similar exception taken.

It is not questioned that, had the action been brought after the expiration of the term, the rule of damages applied by the judge would have been correct, but it is insisted that, inasmuch as the action was brought before the expiration of the term, a different rule applies; that a servant who would recover as damages the entire amount of compensation stipulated for in the contract must wait until the expiration of the term before bringing his action. The plaintiff’s cause of action arose at the time of the breach of the contract, and he was then entitled to sue and recover such actual damages as the evidence upon the trial showed he had sustained by the defendants’ breach. It is the breach and not the time of complaining of it which gives the damage.

Lord Mansfield laid down the doctrine, “ It is agreeable to principles of common law that whenever a duty has incurred pending the writ, for which no satisfaction can be had by a new suit, such duty shall be included in the judgment to be given on the action already pending.” (Sedgwick on the Measure of Damages [1st ed.] 107.) In the authority last cited the rule is stated as follows:

“ If the original tort or breach of contract is such that the plaintiff would be entitled to nominal damages, then he can go on to give evidence of those consequences of the act which are immediately traceable to it, although they have taken place after the commencement of the suit.” The same author in the sixth edition of the work, page *530 122, says: “ If there is a breach of contract the right to nominal damages exists at once to vindicate the right, and suit may be brought. If those consequences for which the law renders the party in default responsible have developed themselves so as to create absolute injury before the verdict, the jury are bound to give compensation for such injury; but if at the time of trial the loss is still only probable, the verdict should be for nominal damages.” (See, also, Wilcox v. Executors of Plum mer, 4 Peters, 172 .)

We think the principle above stated is applicable to this case. The defendants owed a duty to the plaintiff and Yager from the time of the commencement of the action up to January 1, 1879, all of which was during the.pendency of the writ, and for which satisfaction cannot be had except in this action. Where the cause of action is commenced during the term, but the trial occurs after the expiration of the term of service, we can see no reason why the plaintiff may not be permitted to recover the same damages that he would have been entitled to recover had the action been commenced after the expiration of the teim.

The judgment should be affirmed, with costs.

All concur, except Miller, J., absent.

Judgment affirmed.