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they should take his salary into account; that they were not to give him the whole of his salary for the three years; but that they were to take into account the probability of his obtaining other employment. The rule was thus expressed by Erle, J., in Beckham v. Drake (c): “The measure of damages for the breach of promise now in question is obtained by considering what is the usual rate of wages for the employment here contracted for, and what time would be lost before a similar employment could be obtained. The law considers that employment in any ordinary branch of industry can be obtained by a person competent for the place, and that the usual rate of wages for such employment can be proved, and that when a promise for continuing employment is broken by the master, it is the duty of the servant to use diligence to find other employment."

The damages awarded must not be too remote. A seaman who had left his ship at Rio because he refused to take part in an illegal voyage, and who was committed to prison by the Brazilian Government as a deserter, was held entitled to recover loss of wages under his contract. But a claim for a loss of clothes, which had been carried away in the ship, was disallowed (d). In another case the facts were these: The plaintiff was engaged as manager of a mining company in South America for three years. The directors were at liberty to dissolve the agreement at any time on giving him twelve months' notice, or in lieu of such notice paying him twelve months' salary and his reasonable expenses in returning to England. If he served three years

he was to be entitled to the expenses of the return of himself and his family. He was dismissed without notice or receiving a year's salary. The jury gave him a

one

(c) (1849) 2 H. of L. at p. 606 ; Smith v. Thompson (1849), 8 C. B. 44 ; (clerk hired for two years; wrongfully dismissed after about quarter's service ; jury awarded one year's salary ; Court refused to disturb the verdict); Goodman v. Pocock (1850), 15 Q. B. 576 ; Richardson v.

Mellis (1824), 2 Bing. 229.

(d) Burton v. Pinkerton (1867), 2 L. R. Ex. 340 ; 36 L. J. Ex. 137; 17 L. T. N. S. 15. Ross v. Pender, Jan. 1874, 1 R. 352 (loss of gratui. ties not to be considered in estimat. ing damages).

year's salary from the date of dismissal and his own expenses in returning to England. The Court refused to add to the damages the expenses incurred in the return of his family or the amount of his salary to the end of the third year (e).

Though it is the duty of a servant who is discharged to seek employment, it appears that the onus rests with the person who denies his right to receive his wages in full to show that he could have obtained employment (f).

When it is said that a servant should diligently look for employment, it is not meant that a clerk should be ready to become a ploughman or a navvy, or that a farm bailiff should be ready to undertake the work of a ploughman. This is illustrated by a Scotch case, Ross v. Pender (g). The plaintiff, , who had been employed as head gamekeeper, was dismissed, but he was offered the same wages and the post of assistant gamekeeper. The Court held that he was not bound to accept the subordinate situation. “I think," said the Lord President, “it is sufficient for the disposal of the defence to show how the employment offered him if he would return was wholly different from his former one as head keeper.”

A servant who is improperly dismissed, or whom the master refuses to take into his service, may at once sue for damages. He may

also in the former case recover the value of services actually performed.

In other words, the servant may treat the contract as at an end and rescinded, and sue on a quantum meruit for his

(c) French v. Brookcs (1830), 6 Bing. 354 ; 4 M. & P. 11; Noble v. Ames Manufacturing Co., 112 Mass. 492. (Plaintiff, who had come from the Sandwich Islands to Massachus. setts, could not recover in an action for refusal to receive him into service, damages for loss of time or expenses in journey.)

) Costigan v. Mohawk Rail Road Co., 2 Denio, 609.

(g) (1874) 1 R. 352. See as to

prospective remuneration in winding up of companies. Yelland's Case (1876), L. R. 4 Eq. 350 ; Clark's Case (1869), L. R. 7 Eq. 550 ; 38 L. J. Ch. 562 ; 20 L. T. N. S. 774 ; Ex parte Maclure (1870), L. R. 5 Ch. 737 ; 39 L. J. Ch. 685 ; 23 L. T. N. S. 685 ; Er parte Logan (1870), L. R. 9 Eq. 149 ; Dean and Gilbert's Case (1872), 41 L. J. Ch. 476 ; 26 L. T. N. S. 467; Shirreff's Case (1872), L. R. 14 Eq. 417; 42 L. J. Ch. 5 ; 20 W. R. 966.

services, or he may treat the contract as still in existence and sue on a breach of it. In the notes to Cutter v. Powell (h) another remedy is stated; "the servant," it is said, “may wait for the termination of the period for which he was hired, and may then sue for his whole wages, in indebitatus assumpsit, relying on the doctrine of constructive service.” This phrase is borrowed from decisions in settlement cases, and the doctrine was first suggested by Lord Ellenborough in the case of Gandell v. Pontigny (i), an action for wages for the whole quarter by a servant wrongfully discharged before the end of the quarter. Lord Ellenborough suggested that the plaintiff might be entitled to recover on the ground that as he was "willing to serve for residue in contemplation of law, he may be considered to have served the whole.” This was followed in Smith v. Kingsford (k) and Collins v. Price (l). But since the case of Archard v. Hornor (m), decided in 1828, by Lord Tenterden, this doctrine has been questioned. In Smith v. Hayward (n) the Court of Queen's Bench declared their preference for the law as laid down in Archard v. Hornor, and the same view was expressed in Fewings v. Tisdal (o). No doubt a servant who has been improperly dismissed is not bound to sue at once; he may sue at the end of the term; but the sum which he will recover will be calculated not on the basis of fictitious service, but the actual damages which he has sustained. Now that it is sufficient for a plaintiff to state in his statement of claim the facts upon which he relies, these decisions are unimportant (p).

A servant who has been improperly dismissed need not

(h) Smith's L. C. vol. ii. p. 38, 5th ed.

(i) (1816) 4 Camp. 375.

(k) (1836)3 Scott, 279. McKean v. Cowlcy (1863), 7 L. T. N. S. 828. (Plaintiff engaged commission agent, at salary of £50 a year ; en. yagement to be terminated at end of any year on giving three months' notice ; not entitled to receive the whole year's salary ; "entitled to so

much as would compensate him for
the loss of the opportunity of earn-
ing £50.")

(?) (1828) 5 Bing. 132.
(11) (1828) 3 C. & P. 349.
(n) (1837) 7 A. & E. 544.
(0) (1847) 1 Ex. 295.

(P) See Barnsley v. Taylor (1867)
32 J. P. 229, as to effect of obtaining
damages for improper dismissal.

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wait until the expiration of the term for which he engaged to serve before bringing his action. So also if his master bas refused without proper reason to receive him into his service, he may

at once institute an action. This was decided in Hochster v. De La Tour (9), the facts of which were as follows: A courier was engaged in April of 1852 to go on a tour of three months, which were to commence on the first of June, 1852. On the 11th of May of that year the defendant wrote to say that he had changed his mind, and that he did not require the courier's services. He refused to make compensation. The courier began an action on the 22nd of May, 1852. The declaration averred that from the time of making the agreement until the time when the defendant refused to perform his promise and exonerated the plaintiff from performance, the plaintiff was ready and willing to perform the agreement. Breach that the defendant before the said 1st of June wrongfully refused to engage the plaintiff or perform his promise, and then wrongfully exonerated the plaintiff from the performance of the agreement, to the damage of the plaintiff. The plaintiff between the commencement of the action and the 1st of June obtained another engagement on equally good terms, but not beginning until the 4th of July. On a motion in arrest of judgment, Lord Campbell said, “ The man who wrongfully renounces a contract into which he has deliberately entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured ; and it seems reasonable to allow an option to the injured party, either to sue immediately, or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrong-doer. An argument against the action before the 1st of June is urged from the difficulty of calculating the damages ; but this argument is equally strong against an

(?) (1853) 2 E. & B. 678 ; Danube Ry. Co. v. Xenos (1861), 11 C. B. N.

S. 152; (1863) 13 C. B. N. S. 825.

action before the 1st of September, when the three months would expire. In either case, the jury in assessing the damages would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial (r).”

(r) In spite of a common opinion to the contrary, it does not appear to be the case that, in the absence of any stipulation on the subject, a servant is entitled to expenses in

curred in going to his master's house before being engaged, or returning from it after being dismissed, Burn's Justice, 5th ed., 225, and also Read v. Dunsmore (1840), 9 C. & P. 588.

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