
    Charles E. Thompson v. Joseph H. Wood.
    This court will not reverso tho finding of a referee upon a question of fact, although it differs from him in the result at which he has arrived, if there is conflicting evidence upon the point.
    In an action brought by an emplojme to recover the contract price agreed to ho given him, upon an averment of readiness and tender of performance on his part, and refusal to accept performance on the part of his employer, it is no defence that a former action has been brought by him to recover both damages for tho defendant’s breach of the contract in discharging him and a balance of salary up to tho time of his discharge, where the claim for damages was withdrawn upon the trial, and judgment rendered only for the balance due for services actually rendered prior to the discharge.
    And a tender of performance having been made prior to such action, it is not necessary to repeat the tender in order to maintain a new action on the contract.
    In such an action, the employee, having been discharged without just cause, is entitled prima facie to recover the full amount of the contract price up to tho time of tho commencement of the action. It devolves upon the defendant to show, in mitigation of damages, that the plaintiff might have obtained employment elsewhere.
    Appeal bj defendant from a judgment entered on a report of a^eferee. Tbe plaintiff brought this action to recover two months’ salary. He claimed to bave been employed by tbe defendants for one year from the 1st May, 1854, at a salary of $1,500, as superintendent of their factory — averred a readiness and tender to perform on bis part, but a refusal on tbeirs to allow him to do so, and claimed the proportionate amount of salary due from 20th September, 1854, at which time he was discharged, to the 23d day of November, 1854, tbe time of tbe commencement of tbe action. The defendants denied that the plaintiff was hired by tbe year, and plead in bar a former recovery in the Marine Court for the same cause of action. Upon the trial they also offered evidence for the purpose of showing that they had good reason, in the plaintiff’s inattention^ to his business, for discharging him as they' did in September. Tbe cause was tried before a referee. Two witnesses, Ira Merchant and Elipkalet Noyce, sworn for tbe plaintiff, testified to conversations on tbe part of tbe defendants, in which they stated that the plaintiff was employed for the year. The defendants then proved that in October an action was brought against them by tbe plaintiff to recover a balance due for services, and also damages for breach of contract. But it also appeared that the 'claim for damages was withdrawn on the trial, and judgment rendered only for a small balance due tbe plaintiff at the time of liis discharge. Tbe defendants also offered some evidence for tbe purpose of showing that tbe plaintiff was inattentive to bis business. It appeared by tbe testimony tbat be was confined at bis borne in Eordbam by sickness for some little time prior to bis discharge, but there was no evidence of any complaint with him on tbat account. It also appeared tbat be was seen several times at tbe races on Long Island, and there was some conflicting evidence as to bis habits — whether temperate or not, and whether be was attentive to bis business, or otherwise. It further appeared tbat tbe plaintiff tendered bis services to tbe defendants prior to tbe suit in tbe Marine Court. There was no evidence of any subsequent tender, nor did the plaintiff offer any evidence of any special damage. Tbe referee found, as matter of fact, that the plaintiff was hired for tbe year, at ^ salary of §1,500, and was discharged without just cause, and reported in the plaintiff’s favor for tbe full amount of bis salary, from tbe time of bis discharge up to tbe time of tbe commencement of tbe action. Judgment was perfected on this report, and tbe defendants appealed therefrom.
    
      G. N. Potter, for tbe appellants,
    contended, 1st. Tbat the plaintiff must show a tender of performance subsequent to tbe suit in tbe Marine Court, in order to recover. 2d. Tbat in tbe absence of special damage tbe plaintiff could recover only nominal damages, citiDg Sherman v. Gomsiodc, 21 Wend. 257; Clark v. Mar-seglia, 1 Lenio, 317; Wilson v. Martin, ibid. 602; Spencer v. Halstead, ibid. 606; Ilecksecher v. McOrea, 21 Wend. 304; Ogden v. Marshall, 4 Selden, 340; Bunn v. Murray, 9 B. & C. 780; 4 S. C., 4 M. & R. 571; Clark v. Mayor of New-Yorh, 4 Corns 343. 3d. Tbat tbe suit in the Marine Court was a bar to this— or at least a bar to tbe recovery of any damages sustained prior to the commencement of that suit, citing Bouchaud v. Dias 3 Denio, 243 ; Bruen v. Hurd, 2 Bar. 596; Fish v. 1Tolley, 6 Hill, 54; Fmbury v. Connor, .3 Corns. 522.
    
      •James Parker, for respondent.
   INGRAHAM, Eirst Judge.

There was sufficient evidence as to tbe employment of tbe plaintiff by the defendants to carry tbe question to tbe referee. Even if Merchant’s testimony was doubtful, Noyce testified expressly to tbe admission of defendants, made on 1st May, 185-4, that tbe plaintiff was to remain in tbeir employ for another year. The question belonged to tbe referee, and be has passed upon it, so that we cannot interfere with his finding on this point.

There was no necessity for a new offer of services after tbe recovery in tbe Marine Court action. The court allowed tbe plaintiff to withdraw bis claim for damages for tbe breach of tbe contract, and tbe court only gave judgment for tbe balance of salary up to 20th September, when tbe plaintiff was discharged defendants’ employ. If, after tbe plaintiff’s offer to perform, which was refused, the defendants bad determined to employ the plaintiff again, be should have given him notice that be required bis services: not having done so, the presumption of law is, that his determination, before expressed, not to employ him, still remained unchanged.

The defence of misconduct, to warrant tbe plaintiff’s discharge, is not set up in the answer.

The referee has, however, passed upon this defence on con dieting testimony, and tbe remarks upon tbe first point are equally applicable and conclusive as to this one.

The judgment in the Marine Court was no bar to this action. Where an agreement of this kind is broken, tbe person cm ployed has bis election, cither to sue for bis wages as they become duo from time to time, or to bring one action for damages for the breach of tbe contract. If sucb action is brought before tbe term of hiring bas expired, and the party recovers damages for such breach of the contract, such recovery estops him from bringing another action. But if his action is merely to recover the wages due at the time of bringing tbe action, be is not thereby deprived of bis right either to recover wages subsequently becoming payable, or an action for damages for the subsequent breach of the agreement in not employing the plaintiff according to tbe contract.

Upon the trial of this case in the Marine Court (as the justice testifies), he permitted the plaintiff therein to withdraw the claim for services since the 20th September, and that he only passed upon the claim for wages up to that date. This is conclusive to show that the claim for damages was not adjudicated upon in that action.

There is no ground for interfering with the report of the referee in this case upon any of the points above stated.

The remaining question is as to the amount of damages which the plaintiff should recover. This point was discussed in Hein v. Wolf (1 E. D. Smith, p. 70), and the right to recover, as damages, the full amount, was held to be proper, unless it appeared that the party could have procured other employment. T^ obligation .to show this rested on the defendants. The same extent of liability is recognized in Costigan v. The Mohawk and Hudson R.R. Co. (2 Denio, 608), in which the court says: “ The defence set up should bo proved by the one who sets it up. Ho seeks to be benefited by the fact, and he should therefore prove it.” In that case the court also held that, as the plaintiff had not been shown to have had other employment, the recovery might extend to the full compensation promised by the contract.

There is evidence that the plaintiff was sick at Fordham, and. such sickness, if it rendered the plaintiff permanently unable to discharge his duties, might authorize his discharge; or if. when his services were,tendered, ho was unable to discharge his duties, such tender might be unavailing. This tender was made shortly before the commencement of one of the actions; and the sickness at Fordham appears to have been in August, and to have terminated before the 26th September, because on that day it is in proof that the plaintiff went to the races, and the witness speaks of it as having been after the sickness at Fordham, and that was after the discharge on 20th September. The referee also finds .that such discharge was without just cause, and I conclude, therefore, his finding was against the defendant on this, point.

However I might differ with the referee in the result to which he has arrived, still I could not interfere with his finding. The facts are conflicting, open to discussion, and perhaps in some respects to doubt, as to the proper conclusions upon them, but. the report is not so clearly against the weight of evidence as to warrant this court in setting it aside.

Judgment affirmed.  