
    Thomas Whitmarsh, Jr., Resp’t, v. Edgar Littlefield et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1887.)
    
    1. Contract—Action fob bbeach—Damages.
    The defendant entered into a contract with the plaintiff whereby the latter was to work so long as the old ice might last for two dollars per day. Subsequently the defendant broke the contract and offered to retain the plaintiff at the work for $1.75 per day. lit Id, that in an action to recover damages for breach of the contract,the plaintiff might recover for the whole time at the rate agreed upon and that what he might have earned by accepting the defendant’s offer was not to be deducted therefrom.
    
      
      % Same—What amounts to hew contract.
    
      Held, that the arrangement proposed by the defendant, if accepted by the plaintiff, would have amounted to a new contract superseding the old.
    N. C. Moak, for app’lts; R. L. Beckley, for resp’t.
   Learned, P. J.

—There was evidence on which the jury might find that there was a contract for a specific time, viz.: to the end of the season.

And there was evidence from which they might also find that defendants broke the contract.

It is stated in the charge that if the jury found in favor of plaintiff the amount of recovery had been agreed upon. No question then arises as to the amount which the plaintiff should recover, except as thereinafter stated.

The defendants requested the court to charge that the plaintiff had an opportunity to earn $1.75 per day during all the time. This was refused. And the court further said in reference to a former part of his charge, he would except this, viz.: that the plaintiff was not required to go back and work for defendants. To this there was an exception.

The alleged contract found by the jury was that plaintiff was to work as long as the old ice lasted for two dollars per day. There was evidence that when, as the jury found, the defendants broke this contract, the defendants offered to pay $1.75 per day for the work on the old ice, as it fully stated thereafter. And the principal question here relates to the ruling on this point. The court directed the jury to deduct what plaintiff had received for his services, but declined to direct them to deduct what plaintiff had an opportunity to earn in work of a similar character. Now the opportunity referred to was the offer of' defendants to pay $1.75 for the same work for which they had contracted to pay two dollars.

The defendant’s counsel cites Bigelow v. Am. F. P. Co. (39 Hun, 599). In that case after defendants had distinctly discharged plaintiff from their services, they directed him to go to Panama, and he refused. The court held that the offer by defendant in the same line of business and his refusal should have been admitted to diminish the damages; because it tended to show what he might have earned.

There is a distinction between that case and the present. It does not appear, that in that case the defendants when they proposed to discharge him, offered to employ him at a less salary to do the work for which they had originally contracted. But, in this case, to take the defendant’s own statement, Littlefield said to the plaintiff and others, “that I could not pay them two dollars any longer; that I would like to have them go in the boat and work the same as they had before for fourteen shillings.” And as another of defendant’s witnesses says in another place, he told them he wanted them to consider the matter and to work for fourteen shillings.

Now this was a plain proposition to give up the old arrangement or contract and accept a new one. That is, to continue in the same employment at a less price.

If the plaintiff and the others had acceded to this, they would have virtually surrendered the old contract and have made a new. No one could understand the transaction otherwise than as a change or modification of the old arrangement. And if the plaintiff and the others had thereupon gone on and worked for the defendants, they never could have recovered more than the $1.75 per day.

Of course when a contract has been broken by one party and the parties make thereafter a new contract, the new contract does not necessarily take away the right of action for damages for the breach. McKnight v. Dunlop, 5 N. Y., 537.

But on the other hand the parties to a contract may modify it by mutual consent. And the proposition made by defendant Littlefield, if acted upon by plaintiffs and others, would plainly have been such a modification.

Under the facts of this case, therefore, we do not think it necessary to pass on the question whether if a fair and distinct offer of employment had been made by defendants which plaintiff had refused, this should have been considered in diminution of damages. It might be questionable whether plaintiff was bound to enter into another contract with those who had broken the former. But it is enough to say that we think the proposition of Littlefield, over which only the question arises, was, under the circumstances a proposition to abandon the old and to form a new contract.

The recovery for the whole time seems to be justified by Everson v. Powers, 89 N. Y., 527.

Judgment affirmed, with costs.

Landon and Williams, JJ., concur.  