nature of the contract clearly show that the promised salary or wages was not contemplated as the full return which the employee was to receive, there seems no reason why any additional damages, not too speculative in character, should not be allowed.12 For breach of the employee's contract the master may recover damages either total13 or partial,14 according as the breach involves the dissolution of the relationship or not. Consequential damages are also recoverable if the case can be brought within the general rules governing such damages. If an employee has been guilty himself of a breach of the contract, but not of such a character as to afford a complete defense to the employer, the latter may reduce the employee's damages by recoupment or counterclaim.15

§ 1360. Burden of proof.

It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of some kind reasonably adapted to, his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract. 16

12 In Manubens v. Leon, [1919] 1 K. B. 208, a wrongfully discharged employee was allowed damages based not only on wages payable by the defendant, but also on tips customarily received from the defendant's customers.

13 Cannon Coal Co. v. Taggart, 1 Col. App. 60, 27 Pac. 238; Riech v. Bolch, 68 Iowa, 526, 27 N. W. 507; Myers R. S. Co. v. Griswold, 77 Neb. 487, 109 N. W. 736; Peters v. Whitney, 23 Barb. 24.

14 E. E. Thomas Fruit Co. v. Start, 107 Cal. 206, 40 Pac. 336; Lee v. Clements, 48 Ga. 128; Alberts v. Stearns, 50 Mich. 349, 15 N. W. 505; Still v. Hall, 20 Wend. 51; Branch v. Chappell, 119 N. C. 81, 25 S. E. 783.

15 Columbus Co. v. Clowes, [1903] 1 K. B. 244; Dobbins v. Grær, 50 Colo. 10, 114 Pac. 303; Weymer v.

Belle Plaine &c. Co., 151 Ia. 541, 132
N. W. 27; Ann. Cas. 1913 A. 451;
C. W. Hunt Co. v. Boston Elevated
R., 217 Mass. 319, 104 N. E. 728;
Williams v. Crane, 153 Mich. 89;
116 N. W. 554; Walsh v. Fisher, 102
Wis. 172, 78 N. W. 437, 43 L. R. A.
810, 72 Am. St. Rep. 865.

16 Maynard v. Royal &c. Co., 200 Mass. 1, 6, 85 N. E. 877, citing. Mathesius v. Brooklyn Heights Railroad, 96 Fed. 792; Troy Co. v. Logan, 96 Ala. 619, 12 So. 712; Fitzpatrick Square Bale Ginning Co. v. McLaney, 153 Ala. 586, 44 So. 1023; Rosenberger v. Pacific Coast Ry. Co., 111 Cal. 313, 43 Pac. 963; Saxonia Mining, etc., Co. v. Cook, 7 Col. 569, 4 Pac. 1111; Realty Co. v. Ellis, 4 Ga. App. 402, 61 S. E. 832; Roberts v. Crowley, 81 Ga. 429, 7 S. E. 740; Fuller v. Little, 61 Ill. 21; Hamilton

17

The contrary view, which prevails in Kentucky, Mississippi and perhaps elsewhere 17 seems, however, logically correct. The value of the plaintiff's time should be deducted from the sum promised by the defendant, and there is no presumption either of law or fact that the time has no value.

§ 1361. Employee's right to sue for future wages.

The English courts formerly permitted a wrongly discharged servant to sue for subsequently accruing wages, as such, either waiting until the termination of the period for which he was hired, 18 or bringing an action for each instalment of wages as the time for the payment thereof arrived. 19 The recovery of each instalment was based on a theory of constructive service. If this theory was logically carried out, it would seem as if the employee in order to avail himself of the remedy must remain continuously ready to serve, and therefore free of any obligation to take other employment. 20 The doctrine of con

v. Love, 152 Ind. 641, 53 N. E. 181, 54 N. E. 437, 71 Am. St. Rep. 384; Chisholm v. Preferred Bankers' Assur. Co., 112 Mich. 50, 55, 70 N. W. 415; Bennett v. Morton, 46 Minn. 113, 48 N. W. 678; Beissel v. Vermillion Farmers' Elevator Co., 102 Minn. 229, 113 N. W. 575, 12 L. R. A. (N. S.) 403; Boland v. Glendale Quarry Co., 127 Mo. 520, 30 S. W. 151; Larkin v. Hecksher, 22 Vroom, 133; Milage v. Woodward, 186 N. Y. 252, 78 N. E. 873; King v. Steiren, 44 Pa. St. 99, 84 Am. Dec. 419; Chamberlin v. Morgan, 68 Pa. St. 168; Hendrickson v. Anderson, 5 Jones, 246; Latimer v. York Cotton Mills, 66 S. C. 135, 44 S. E. 559; Porter v. Burkett, 65 Tex. 383; Barker v. Knickerbocker Ins. Co., 24 Wis. 630, 638; Winkler v. Racine Wagon, etc., Co., 99 Wis. 184, 74 N. W. 793. To the same effect are Fisher v. Masillon Iron & Steel Co., 209 Ill. App. 616, 120 N. E. 467; Mindes Millinery Co. v. Wellborn (Tex. Civ. App.), 201 S. W. 1059.

17 John C. Lewis Co. v. Scott, 95 Ky. 484, 26 S. W. 192, 44 Am. St.

Rep. 251; Shepherd v. Gambill, 29 Ky. L. Rep. 1163, 96 S. W. 1104; Hunt v. Crane, 33 Miss. 669, 69 Am. Dec. 381. In Maynard v. Royal &c. Co., 200 Mass. 1, 85 N. E. 877, the court found it unnecessary to decide which was the proper rule.

18 Gandell v. Pontigny, 4 Camp. 375, S. C. 1 Stark. 198. See also Collins v. Price, 5 Bing. 132; Smith v. Kingsford, 3 Scott, 279.

19 See per Crompton, J., in Emmens Elderton, 4 H. L. C. 624.

20 In Doherty v. Schipper, 250 III. 128, 134, 95 N. E. 74, 34 L. R. A. (N. S.) 557, Ann. Cas. 1912 B. 364, the court said:

"The doctrine of constructive service, as applied to a case like this and where used as a basis of recovery, is illogical and unsound. This court has universally held that the proper measure of damages in a case like this is the contract price, less what the employee earned or could have earned. That being so, if the discharged employee can find employment it is his duty to accept it. How

structive service has, however, been abandoned in England,21 and is discredited in the United States. The proper remedy for the discharged employee being recognized as the breach of a contract to employ and thereby allow the employee to earn the promised reward. 22

This principle is as applicable where the agreed compensation is to be made at the testator's death by a legacy, as where it is a fixed amount payable at stated intervals.23 A few jurisdictions still allow the remedy of suing for the wages, as such.24 But even in such jurisdictions though the employer may be vexed by successive actions, presumably the ultimate damages allowed would be the same as in other jurisdictions; that is,

the value of the employee's time as shown by wages which he obtained, or might have obtained in other employment would be deducted. 25 It should be observed, however, that if the rule laid down in England in regard to the effect of an anticipatory breach 26 is actually carried into effect, when an employer repudiates the contract before the time for performance begins, the employee may disregard the repudiation and hold himself ready to carry out his contract until the period of employment begins. This involves the conclusion that he may refuse other employment if offered. The American cases on the effect of repudiating a contract to manufacture 27 make it seem probable that in the case of an anticipatory repudiation of a contract of service, as well as in the case of a wrongful discharge after the service has begun an employee must avoid unnecessary damage by seeking other employment.

§ 1362. Employee's recovery where trial precedes the expiration of contract.

Where the employee's suit comes to trial before the expiration of the term of his contract, it is impossible to say exactly how much the plaintiff may be able by his earnings to mitigate the damages caused by the defendant's wrong, and for this reason some courts restrict the plaintiff's recovery to the damages he has suffered up to the time of trial. 28 Such a conclusion,

25 See McMullan v. Dickinson Co., 60 Minn. 156, 62 N. W. 120, 27 L. R. A. 409, 51 Am. St. 511.

20 See supra, § 1297. 27 See supra, § 1298.

28 Darst v. Mathieson Alkali Works, 81 Fed. 284; Schroeder v. California, etc., Co., 95 Fed. 296; Fowler v. Armour, 24 Ala. 194; Marx v. Miller, 134 Ala. 347, 32 So. 765; Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 23 L. R. A. 853 (see also Spenser Medicine Co. v. Hall, 78 Ark. 336, 93 S. W. 985); Saxonia &c. Co. v. Cook, 7 Colo. 569, 4 Pac. 1111; Harris v. Moss, 112 Ga. 95, 37 S. E. 123; Mt. Hope Cemetery Assoc. v. Weidenmann, 139 Ill. 67, 28 N. E. 834 (see also

Doherty v. Schipper, 250 III. 128; 95 N. E. 74, 34 L. R. A. (N. S.) 557. Ann. Cas. 1912 B. 364; Pape v. Lathrop, 18 Ind. App. 633, 46 N. E. 154; Wilson S. M. Co. v. Sloan, 50 Iowa, 367; Louisville & N. R. Co. v. Offutt, 15 Ky. L. Rep. 301; Everson v. Powers, 89 N. Y. 527, 528, 42 Am. Rep. 319; Bassett v. French, 10 N. Y. Misc. 672, 31 N. Y. S. 667; Sommer v. Conhaim, 25 N. Y. Misc. 166, 54 N. Y. S. 146; Smith v. Lumber Co., 142 N. C. 26, 54 S. E. 788, 5 L. R. A. (N. S.) 439 (but see Davis v. Dodge, 126 N. Y. App. Div. 469, 110 N. Y. S. 787); Pacific Exp. Co. v. Walters, 42 Tex. Civ. App. 355; Litchenstein v. Brooks, 75 Tex. 196, 198, 12 S. W

however, is wholly indefensible on principle. 'The plaintiff's cause of action accrued when he was wrongfully discharged. His suit is not for wages, but for damages for the breach of his contract by the defendant. For this breach he can have but one action. In estimating his damages the jury have the right to consider the wages which he would have earned under the contract, the probability whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff's working ability would continue, and any other uncertainties growing out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money in other work during the time. But it is not the law that damages that may be larger or smaller because of such uncertainties are not recoverable. The same kind of difficulty is encountered in the assessment of damages for personal injuries. All the elements which bear upon the matters involved in the prognostication are to be considered by the jury, and from the evidence in each case they are to form an opinion upon which all can agree, and to which, unless it is set aside by the court, the parties must submit."29

975; Gordon v. Brewster, 7 Wis. 355; Stumm v. Western U. T. Co., 140 Wis. 528, 531, 122 N. W. 1032.

Cutter v. Gillette, 163 Mass. 95, 97, 39 N. E. 1010. The weight of authority supports this conclusion. Pierce v. Tennessee, etc., R. Co., 173 U. S. 1, 43 L. Ed. 591, 19 Sup. Ct. 335; American China, etc., Co. v. Boyd, 148 Fed. 258; Lewis v. Sherin, 194 Fed. 976; Seymour v. Oelrichs, 156 Cal. 782, 106 Pac. 88; Hamilton v. Love, 152 Ind. 641, 43 N. E. 873, 71 Am. St. Rep. 384; Inland Steel Co. v. Harris, 49 Ind. App. 157; Bridgeford v. Meagher, 144 Ky. 479, 139 S. W. 750; Sutherland v. Wyer, 67 Me. 64; Olmstead v. Bach, 78 Md. 132, 27 Atl. 501, 22 L. R. A. 74, 44 Am. St. Rep. 273; Maynard v. Royal &c. Co., 200 Mass. 1, 85 N. E. 877; Webb v. Depew, 152 Mich. 698, 116 N. W. 560, 16 L. R. A. (N. S.) 813, 125 Am. St. Rep. 431; Newhall v. Journal Printing Co., 105 Minn. 44,

117 N. W. 228, 20 L. R. A. (N. S.) 899; Prichard v. Martin, 27 Miss. 305; Boland v. Glendale Quarry Co., 127 Mo. 520, 30 S. W. 151; Hicks v. National Surety Co., 185 Mo. App. 500, 172 S. W. 489; School District v. McDonald, 68 Neb. 610, 94 N. W. 829; Moore v. Central Foundry Co., 68 N. J. L. 14, 52 Atl. 292; Davis v. Dodge, 126 N. Y. App. Div. 469, 110 N. Y. S. 787; James v. Allen Co., 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821; Morrison v. McAtee, 23 Ore. 530, 32 Pac. 400; Wilke v. Harrison, 166 Pa. 202, 30 Atl. 1125; Helfferich v. Sherman, 28 S. Dak. 627, 134 N. W. 815; Eastern, etc., R. Co. v. Staub, 7 Lea, 397; Tarbox v. Hartenstein, 4 Baxt. 78; Hassell v. Nutt, 14 Tex. 260; G. A. Kelly Plow Co. v. London (Tex. Civ. App.), 125 S. W. 974; Remelee v. Hall, 31 Vt. 582, 76 Am. Dec. 140; Rhoades v. Railway Co., 49 W. Va. 494, 39 S. E. 209, 87 Am. St. Rep.