Gray v. Pacific Suction Cleaner Co.

SHAW, J.

The plaintiff sued to recover damages for his alleged wrongful discharge from service under a contract whereby the defendant employed him for one year, beginning February 1, 1909, at $250' a month, payable at the end of each month. The findings, in effect, state that the plaintiff was wrongfully discharged on June 9, 1909, that his salary had been paid up to the end of May, 1909, that plaintiff had obtained other employment during the remainder of the year from which he received one thousand dollars, and that he was entitled, as damages, to the difference between the agreed salary for the eight months, and the one thousand dollars received from the other employment, together with interest on the balances for each month. Judgment was accordingly given in his favor for the sum of one thousand dollars and $138.70 interest. The defendant appeals from the judgment and from an order denying its motion for a new trial.

In its defense the defendant undertook to prove, in mitigation of damages, that on June 19, 1909, it offered to take

[235]

plaintiff back in its service, under the contract aforesaid, and to allow the salary to continue as from June 1, 1909, and that the plaintiff refused to accept said offer. The claim is that this offer and refusal defeats the right of plaintiff to recover anything more than nominal damages for the technical breach.

The findings state that “it is not true that the defendant ever in good faith requested or notified plaintiff to resume his duties in the service or employment of said defendant.” This, if correct, would defeat the attempt to mitigate the damages by the offer of re-employment. The defendant claims that the finding is contrary to the evidence.

The evidence on the subject is altogether inferential and circumstantial, but, upon the whole case, we cannot say that the finding was not justified by the evidence. When the contract was made, one John Lee, Jr., was president of the company and the principal stockholder therein. It was at his instance that the plaintiff was employed. He was in the active management of the company for the ensuing two months, and during that period the plaintiff’s salary was promptly and regularly paid. Some time in April, Lee disposed of part or all of his stock and ceased to control the company’s affairs, although he remained president until about June .1st. In the meantime the company was managed and controlled by Otto H. Mohr. At the end of April the plaintiff was given a check for his April salary, which, at his request, was made payable to one Boeder. The check was dishonored, plaintiff had to make it good, and was subsequently reimbursed by Lee. The company paid only one hundred dollars of the May salary, and thereupon, about June 8th, the plaintiff began an action for the recovery of the remaining one hundred and fifty dollars, and caused an attachment to issue thereon against the company. The next day he was discharged without cause. Two days afterward he began this action for damages for the wrongful discharge. Lee resigned as president and disposed of his stock therein to Mohr about the 1st of June. Upon the issuing of the attachment, and knowing himself to be personally liable for a part of the debt, Lee immediately repurchased the stock from Mohr and again became the president of the company and took the active management thereof, and paid the attachment claim. On June 18th he wrote to plaintiff asking him to