Toplitz v. Ullman

The action is for wrongful discharge, and presumptively the plaintiff is entitled to whatever sum became due by the contract of employment Costigan v. The M. & H. R. R. Co., 2 Den., 609 .

The plaintiff endeavored, but failed, to obtain similar employment elsewhere and earned only two hundred dollars during the contract, which was applied in mitigating the damages.

It is claimed, however, that because the plaintiff, after his discharge, entered into a partnership arrangement with one Davis, the defendant is entitled to deduct from the damages claimed not only what the plaintiff earned in such copartnership, but the actual value of the services rendered therein without regard to their pecuniary result.

We cannot assent to this view. The plaintiff credited the defendant with all he earned and received, and this is all he was required to do. The doctrine laid down in Huntington v. Ogdensburgh & L. C. R. R. Co., 33 How. Pr., 416 , does not conflict with this view, and the dicta relied on by the defendant has no application to a case like the present, where the services rendered to the second employer have been performed and completed, and the exact earnings of the servant ascertained and adjusted.

The dicta applies where the earnings of the discharged employee have not been ascertained, in which case it would be implied that such services of the employee would realize their reasonable value, and, in the absence of a more certain basis for calculation, this would be adopted as the correct measure of the earned but unadjusted compensation. But that case goes no further. It. adheres to the rule “ that the party who sustains a loss by the willful violation of a contract by the other, is justly entitled * * * for liberal and complete indemnity for the failure of such other,” and that the damages resulting from the breach are to be regulated by the “ actual loss.”

A discharged employee is bound to make reasonable efforts to keep down the damages, and if, after every exertion on his part, he credits the result of his labors, he does all the law requires him to do. To permit the employer to deduct from the damages not only what the employee earned after his discharge, but what the efforts of the employee ought to have produced, would be awarding a wrong-doer an advantage not secured by the person free from fault nor sanctioned by any rule of morality or law. Such a principle has not as yet found its way into our system of jurisprudence and probably never will.

We have examined the briefs of counsel and carefully considered the exceptions taken, but have failed to discover any error that has operated to the injury of the defendant

The judgment is right and must be affirmed, with costs.

Van Wyck and Fitzsimons, JJ., concur.