Crawford v. Mail & Express Publishing Co.

The general principles of law underlying the case are settled by the former decision on appeal in this action. 9 App. Div. 481 , 41 N. Y. Supp. 325 . The evidence adduced upon the present trial is not so materially different as to change the view expressed upon the former appeal, that upon the facts presented there was sufficient to go to the jury upon the question whether the dismissal of the plaintiff was the result of an actual, or a merely feigned, dissatisfaction on the part of the defendant. The main question having. been resolved by the jury in the plaintiff’s favor, there is left for consideration only the exceptions, two of which, alone, we regard as of sufficient import to require discussion.

In some way the defendant sought to obtain the benefit of the rule that the plaintiff, in reduction of damages, was obligated to make an effort to obtain similar employment, which it is conceded he did not do. Upon this ground a motion was made to dismiss the complaint, and certain requests to charge were presented to the court, involving the idea that, for failure to observe this obligation, the plaintiff was only entitled to nominal damages. It is to be noted that no such

“It was an exceptional contract, .in that it permitted doing my private business, and to write upon any subject I pleased. I have had nearly twenty years in the newspaper business, and I knew that it was an unusual thing. No other newspaper would have made such a contract. It was an exceptional, personal contract made with Ooi. Shepard.”

There was no effort made in any way to controvert this statement, and, as the defendant relies entirely upon the plaintiff’s evidence as to his failure to obtain similar employment, it must take it with the explanation offered. This left but one inference, which was the one stated by the plaintiff himself, that, in view of the exceptional nature of the contract,—and, from a reading and consideration of its terms, it must be concluded that this characterization was correct,—he could not get similar employment. As the defendant, therefore, had hot shown that similar employment was offered and declined, or that by reasonable efforts the plaintiff could have obtained it, the exceptions taken upon this ground we do not regard as good.

The second exception relates to the charge of the judge that interest was to be allowed upon the amount asked for in the complaint. The rule on the question of interest, as stated in White v. Miller, 78 N. Y. 393 , cited with approval in Sloan v. Baird, 12 App. Div. 488 , 42 N. Y. Supp. 38 , is that in an action for breach, of a contract, where the damages are unliquidated, interest is not to be allowed on the damages, unless they are such as might easily be ascertainable and computed at the time of the breach, from facts which are then known to exist. In Howard v. Daly, 61 N. Y. 362 , which was a case where a contract for future employment and services had been entered upon, and, when the time arrived to perform, the employer repudiated the contract, it was held that the remedy of the employé is not an action for wages, but to recover damages for the breach, and that the damages in such action are prima facie the amount of the wages for the full term. The amount of damages, however, in such an action, is necessarily unliquidated, because it is liable to be affected by the question whether the plaintiff has been able to earn anything during the time covered by the contract, or has refused to enter into a similar contract, when he might have done so, and thus reduced the amount of damages. This action having been brought before the expiration of the contract for the breach of which it is sought to recover damages, the damages are necessarily unliquidated, and it was error tó charge that the jury should allow interest. This error would not necessarily require that the judgment be reversed, but, to the extent that the interest was included, it should be modified. While some confusion was introduced, growing out of the discussions that took place, and the different instructions given by the court, as

VAN BRUNT, P. J., and RUMSEY and WILLIAMS, JJ., concur. INGRAHAM, J., dissents.