
    POLK against DALY.
    
      New York Common Pleas;
    
    
      General Term, March, 1873.
    An actor was wrongfully discharged by the manager of the theater, by whom he had been employed for a definite period; and, instead of holding himself in readiness to be recalled, he left town for his own purposes.
    
      Held, that he could not recover wages for the period following his discharge, nor damages computable upon a loss of such wages.
    If in any case an offer to perform personal services in fulfillment bf a contract of constant employment can be deemed a sufficient tender, reasonable efforts to obtain other employment, or actual entry into other employment, are essential.
    In all cases of breach of contract, it becomes the active duty of the party injured to make reasonable exertions to make the damages resulting therefrom as light as possible.
    The case of Moody v. Leverich (page 145 of this volume) approved.
    Appeal from a judgment.
    Josiah B. Polk sued Augustin Daly on contract. The facts are fully stated in the opinion.
   By the Court.—Robinson, J.

This action was on a contract for the plaintiff’s services as an actor in defendant’s theatre, from September 15, 1870, to June 1, 1871, at a salary of sixty-five dollars a week and a benefit to consist of either one-third the gross receipts or the net proceeds of the benefit night’s receipts. It was brought in September, 1871, and plaintiff, in his complaint, alleges he was wrongfully discharged on April 4, and that he was unable thereafter to procure other employment. He does not, however, allege performance or tender of, or readiness to perform any service during the period for which such salary is claimed, but asks to recover firstly, salary of sixty-five dollars per week, for - eight and a half weeks, and secondly the sum of three hundred dollars for the night’s benefit of which he claims to have been deprived by defendant’s refusal to afford it to him.

The answer, after a general denial as to other matters, admitted the contract; justified the discharge under an alleged breach of plaintiff’s obligations by his refusal to perform parts in plays or characters assigned him; that plaintiff thereupon left the city, and remained in or near Baltimore, in the State of Maryland, during the remainder of the season, and did not at any time after his discharge perform or offer to perform his contract.

The jury, under unexceptional instructions from the court in that respect, found the plaintiff was justified under his contract of service with the defendant as an actor, in refusing to act in a part assigned him inferior to the role of characters which he had agreed to represent, and that he was discharged from his employment without just cause. For this he was awarded in the court below six hundred and eighty-eight dollars and ten cents as compensation, at the contract rate of sixty-five dollars per week, as for full performance, with some addition for the benefit.

Upon his discharge on April 4, the plaintiff by letters of the fourth and sixth of that month denied defendant’s right to discharge him, and offered performance on his part, which was not accepted. “ About a week afterwards he left the city and went to Baltimore, and for the remainder of the period of his engagement spent his time there or in Virginia. He went a-fishing.” Subsequent to his discharge he made no effort to get any other employment in his line of business. The justification he offers for this is, ‘ It was not very easy to secure employment after April 4. The season in ISTew "York theatres had almost expired, and they don’t engage actors then. I don’t think I could have got employment of my standing in any theatre.” Among other grounds for the motion to dismiss the complaint were these: that it appeared from the evidence that the plaintiff made no sufficient tender or offer of his services under the contract; tliat he made no effort to secure other employment, and placed it out of his power to receive employment from the defendant and others. These several grounds of dismissal were overruled and defendant excepted. At the conclusion of the testimony defendant’s counsel asked the court to charge that the plaintiff, by leaving the city, rendered it impossible for the defendant to employ him, and to this the court responded: “If you (the jury) are satisfied that he absented himself to avoid the engagement, then he cannot recover.” To this qualified charge no exception was taken. Defendant’s counsel further requested the court to charge “ that the plaintiff should have applied for employment elsewhere, and cannot recover if he neglected to do so.”

This was refused and defendant excepted.

Under such circumstances I am of the opinion the judgment cannot be sustained.

First. Plaintiff was not entitled to recover either wages for services rendered during the eight weeks following his discharge or for damages ensuing from his unlawful discharge, computable upon the rate of such weekly wages, except upon the assumption that he made and sustained such a tender of performance as was equivalent to actual performance. In a week after his discharge he left the city for the Southern States, and for all the subsequent period of his engagement, was absent at the South, and in no way tendered his services, or rendered himself subservient to the objects of the contract, or to any such use of his services, as it contemplated. It could in no respect be held that he earned wages for services actually rendered in the employment of the defendant when he was engaged in his own pursuits or amusements at the South, without having obtained any consent Or license of the defendant or having given the defendant some notice of his remaining subject to immediate recall when wanted, or in some other way offering or continuing a tender of his services during this period. There are certain contracts in respect to which tender of performance is deemed equivalent to performance so as to entitle the party ready to perform, to sustain an action for such compensation as full performance would have insured to him; to wit, as upon an agreement for the sale and purchase of real estate, where the vendor has tendered a conveyance (Shannon v. Comstock, 21 Wend., 460 ; Richards v. Edrick, 17 Barb., 260, and cases cited, 265), for goods sold, delivery whereof has been tendered (Bennett v. Smith, 15 Wend., 493 ; Dustan v. McAndrew, 44 N. Y., 78, and cases cited). But that the tendered performance should stand as a substitute for the actual, can only be maintainable upon the ground that the thing agreed to be sold has an independent existence, and the corpus not being perishable or changeable, the title had so far passed that the vendor remained but the trustee of the vendee in respect to it, and on subsequent payment of the price the. specific thing may still be delivered over or duly accounted for, to the vendee (Shannon v. Comstock, supra). On such tender the vendor assumes to preserve with ordinary care the thing agreed to be conveyed ready for transfer, on compliance by the vendee with the terms of purchase, unless he choose t.o exercise his right to sell under his vendor lien, and any inconsistent use or diversion of it amounts to an abandonment of the tender.

If there exists any analogy in a contract for the hire of services where the employee has been unjustly discharged, his tender and continued offer and readiness to perform them, his reasonable efforts to obtain other employment or his entry in good faith into other employment are necessary to constitute any similitude, by way oí a constructive performance, to a rendition of such complete service for the purposes of the contract, as it calls for on his part. There are some questionable authorities for holding such constructive service equivalent to actual performance, and entitling the employee to accruing wages, but, as in all cases of tender, it is necessary, in order to constitute a substitute for actual performance, that it should be maintained ; since the employer has a locus pcenitentice and in avoidance of questions of responsibility may at any time, while the tender is preserved, accept performance.

In the present case, the departure of the plaintiff from the city, and Ms absence for the eight weeks in Maryland and Virginia, engaged in his own pursuits, without notice to defendant of Ms whereabouts or address, or of being subject to immediate recall, was not the maintaining of any such tender, nor did it show a case of readiness at all times during the period of the contract to render the service for wMch the plaintiff had contracted.

Secondly. In all cases of breach of contract, it becomes the active duty of the party injured to make reasonable exertions to render the damages resulting therefrom as light as possible. The court of appeals, in Hamilton v. McPherson, 28 N. Y., 76, says, “ The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract, the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this, and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss falls upon him, and he can recover nothing for damages which by reasonable diligence on his part could have been prevented” (p. 77). So, also, in Dillon v. Andrews, 43 N. Y., 237, they say, “It was the duty of the plaintiff, as soon as due notice was given, to have so acted as to save the defendant from further damages, so far as was in his power.” Without questioning that the burden of proof of failure in this respect, was thrown upon the defendant,to show by way of recoupment, or in mitigation of damages, the neglect of the plaintiff in making any effort to get other employment, the absence of any such effort appeared in his own testimony and was conceded. His statement in extenuation that' it was not very easy to procure such other employment, and he did not think he could have got similar employment, presented no justification for his entire omission to make any effort whatever. His obligation in that respect was one of ordinary but active diligence, and his conduct suggests the natural inquiry whether, if he had been discharged for cause, he would, under the usual exigencies of life and its claims upon him to act with diligence and caution in earning a livelihood or making his talents available and profitable, have for eight weeks abandoned every effort to secure any employment or to earn any money in the line of his profession, and go a fishing. Common sense fully answers the question. If voluntarily idle, he failed in his legal and moral duty, as the law regards such conduct “a fraud upon his em-. ployer” (Shannon v. Comstock, supra ; Huntington v. Ogdensburg & L. C. R. R. Co., 23 How. Pr., 416). If intending to insist upon a continuing, although constructive performance, and a right to recover as for full compensation under the contract, he could not accept the employer’s dismissal as a license to indulge in a relaxation of its requirements and go about his own business. The motion for a nonsuit, made substantially on this ground at the close of plaintiff’s case, was renewed at the end of the trial, in a request to the judge to charge the jury, and substantially presented both the previous questions.

Thirdly. The plaintiff’s discharge did not, as a matter of law, entitle him, on the expiration of his term of service, to recover the full price for the whole period. The defenses arising from his departure for Maryland and his continued absence at the South, and his failure after his discharge to attend at the theater, or to apply for employment elsewhere ; or to maintain any continuous offer to perform, were set up by the answer and distinctly proved. The absence of any such tender of services, or readiness to perform for eight weeks after he was discharged, disentitle him from such a recovery, for services rendered during that period, at the contract rate, as has been awarded him. There has been much question whether the employee, unjustly discharged, but tendering performance, may, maintain his action on the contract for accruing wages, or is confined to his single remedy for damages for the unjust dismissal. This subject has has been most ably and elaborately examined by Ch. J. Daly, in Moody v. Leverich, decided at the present term (in which I concurred), sustaining the latter view of the law, and that case must be regarded as settling the question so far as the court is concerned. While there may be authorities asserting more or less broadly the .right of the employee illegally discharged, on maintaining tender .of his services, to recover compensation from time to time, as wages would become due under the provisions of the contract (see cases reviewed in Moody v. Leverich), none of them assume to afford such right of recovery to one who abandons the sphere of his employment and adopts other pursuits for his own profit or pleasure.

Fourthly. 1STotwithstanding the want of a formal exception to the refusal of the judge to charge as requested, that plaintiff, by leaving the city, rendered it impossible for the defendant to employ him, the facts of the case clearly show that plaintiff, by his departure and abiding at the South for the period claimed,relinquished his employment and disentitled himself from any recovery after he left, and as the point had been previously taken on the motion to dismiss the complaint, the court on this appeal is required “ to give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits” {Code, § 366). Those merits, on the pleadings and proofs in this case, in my opinion debarred tho plaintiff from the recovery of any definite sum beyond the eighteen dollars and fifty-eight cents tendered or offered.

For these reasons the judgment should be reversed, subject to plaintiff’s acceptance of that amount.

Daly, Ch. J., and Loew, J., concurred. 
      
       Present, C. P. Daly, Ch. J., and Robinson and Loew, JJ.
     