
    THOMAS W. HENDRICKSON v. JOHN A. ANDERSON.
    Where an overseer employed upon a special contract for a year, was turned off by his emploj'er during- the year, in a suit upon the contract in which the plaintiff sought to recover the entire sum stipulated, it was Held that proof, that the overseer had engaged in other employment during the residue of the year for which ho received wages, was admissible in diminution of damages.
    Whether the misconduct complained of by an employer against an overseer; was a sufficient ground for discharging him, is a matter to be determined by the Court.
    ActioN of assumpsit, tried before Dice, Judge, at tlie last Spring Term of Hertford Superior Court.
    The plaintiff proved an agreement that he should serve the defendant, in the character of overseer and manager of his slaves, for the year 1856, and an agreement on the part of the defendant to pay him $150-. It w^as also proved, that lie was in defendant’s service up to 10th of September, in that year, when he was discharged upon the allegation of miseon-duct, and the defendant refused to hold himself bound to pay wages thereafter.
    For the purpose of proving misconduct, the defendant introduced evidence tending to show that the plaintiff was often absent from the farm ; that he rode the farm horses at night on patrol duty ; that he gave parties to companies assembled at his sleeping apartment, which were kept up till midnight, whore excessive drinking was indulged in, in which he participated to the extent of intoxication, to the annoyance of the family residing in the dwelling-house close by ; that the stock became poor, and that the farm exhibited evidence of neglect and inattention. Upon this evidence, the counsel for the defendant asked the Court to tell the jury, that the facts established by the evidence, amounted to such negligence and misconduct as in law to authorise the defendant to discharge the plaintiff, and that consequently he had no right to recover for the time elapsing after such discharge. The Court refused to charge in so many words, as requested by the counsel, but charged them as is set forth below.
    For the purpose of mitigating the damages claimed, the defendant offered to prove, that shortly after the plaintiff’s discharge he set in as an overseer with another employer, and remained in that capacity at a compensation of twelve dollars and a half per month for the residue of the year.. Which evidence was objected to by the plaintiff and excluded by the Court. Defendant excepted.
    His Honor charged the jury, “ that if the defendant did the acts alleged, and was negligent and inattentive as insisted by the defendant, ho certainly had a right to discharge him. If, however, they believed the facts to be otherwdse, the plaintiff -was entitled to recover; and this being a special contract, the measure of his damages would be the residue of the amount stipulated to be paid, and it vras not material whether the plaintiff found employment elsewhere after his discharge and was paid therefor.” Defendant again excepted.
    Ycrdict for the plaintiff for the wages during the remainder of the year Judgment and appeal.
    
      -for plaintiff.
    
      J3a/>'nes, for defendant
   Battle, J.

This was an action of assumpsit upon a special ’contract, the terms of whicli were, that the plaintiff was to serve the defendant for one year in the capacity of an overseer, and for his services, as such, the defendant agreed to pay him one hundred and fifty dollars. The plaintiff alleged and proved his readiness and ability to perform his part of the contract, and that he was prevented from doing so by the act of the defendant.

The defense set up, and proposed to be proved by the defendant was, that the plaintiff had so misconducted himself while -in his service, that he was justified in discharging him.

Upon the testimony offered on this point, the counsel for the defendant ashed the Court to instruct the jury, that the facts, if believed, constituted in law a good cause for turning the plaintiff off, and thus preventing him from fulfilling his 'engagement. The counsel was undoubtedly entitled to this instruction, if the testimony was sufficient to support it, and the refusal of the Court to give it, would have entitled the defendant to anew trial, unless the error had been corrected by a proper finding of the jury. The case stated in the bill of exceptions, leaves us in some doubt, whether the presiding Judge did not give the instruction substantially prayed. But we will not put our decision upon this objection, as there is another upon which the defendant is clearly entitled to a venire da novo.

The bill of exceptions sets forth that, for the purpose of reducing the damages, the defendant offered to prove that after the plaintiff had been discharged from his service, he sought and obtained employment in the same neighborhood for the residue of the year, for whicli he was paid wages at a certain rate. This testimony was objected to by the plaintiff and rejected by the Court, and for this the defendant excepted ; and Ave think that the exception was well taken.

The action is brought for a breach, by the defendant, of a special contract, whereby the plaintiff was prevented from performing a stipulated service, and thus entitling himself to a certain amount of compensation. It is not and cannot be assumpsit on the common count for work and labor during the year, because the work and labor was not clone ; on the contrary, the gravamen of the complaint is, that the wrongful conduct of the defendant prevented the plaintiff from completing the work and labor for which he had stipulated. It was necessary for him to aver and prove his readiness and ability to perform his part of the contract in order to entitle himself to sustain his action at all; and that being done, the question necessarily arises, what is the amount of the damages which he ought to be allowed to recover ? The proper answer would seem to be the amount which he has actually sustained in consequence of the defendant’s default. It would seem to be a dictate of reason that if one party to a contract be injured by the breach of it by the other, he ought to be put into the same condition as if the contract had been fully performed on both sides. lie certainly ought not to be a loser by the fault of the other; nor can he be a gainer without introducing into a broken contract the idea of something like vindictive damages. The true rule then is, to give him neither more nor less than the damages which he has actually sustained, and so we find the authorities to be ; thus in the case of Costigan v. The Mohawk and Hudson River Rail Road Company, 2 Denio Rep. 609, to which we are referred by the defendant’s counsel, the following propositions are laid down by the Court: where one contracts to employ another for a certain time at- a specified compensation, and discharges him without cause before the expiration of the time, he is, in general, bound to pay the full amount of wages 'for the whole time.

.But, in a suit for 'the stipulated compensation, the defendant may show, in diminution of damages, that after the plaintiff had been dismissed, he had engaged in other lucrative business. This, however, must be proved by the defendant, and must not be presumed. The same principle will be found in other cases to which the counsel for the defendant has referred ; Shannon, v. Comstock, 21 Wend. Rep. 457 ; Hexter v. McRae, 24 Wend. Rep. 304. See also 2 Greenl. Ev., sec. 261; Abbot on Shipping, 442, 443. According to these authorities, which are founded, as we think, on reason, the testimony offered by the defendant, for the purpose of reducing the damages claimed by the plaintiff, ought to have been received, and for the error of the Court in rejecting them, there must be a venire de novo.

Bek Cubiam, Judgment reversed.  