
    
      James Atkinson vs. John A. Fraser.
    
    Where an overseer, employed for a year, is dismissed without cause, and obtains employment for the rest of the year, in die action against the first employer for the amount agreed to be paid for the whole year’s service, the juiy should deduct the amount received from the second employer: the question, however, seems to be one for the jury to decide, for where they did not malee the deduction, the Court refused, under the circumstances, to disturb their verdict.
    
      Before O’Neall, J. at Sumter, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows.
    “This was an action of assumpsit brought by the plaintiff, on an agreement to oversee the defendant’s plantation for 1850.
    “ He proved that the defendant agreed to pay him three hundred dollars, and furnish him with meat and salt, and to do his cooking.
    
      “ He proved that he did his duty entirely to the satisfaction of the defendant, until 26th June; he was at that time in very bad health, and applied to the defendant to permit him to be absent for six weeks, to visit the Sulphur Springs; to this the defendant agreed ; his other overseer, Ferral, was to attend to the plantation while the plaintiff was gone.
    “ The plaintiff left 26th June, and returned the 5th or 6th of September. As soon as the plaintiff returned, the defendant wrote to him that he was no longer his overseer; charging him with removing a house, taking his bacon, and bagging, and rope.
    “ The plaintiff proved that there was a great freshet in the Wateree river, which probably prevented his return for several days.
    “ The house removed was an old and.valueless one, used as a negro crib, removed to a place where the defendant permitted the plaintiff to pass the summer, and there put up as a shelter to cook under.
    “ The bacon was that which the defendant had weighed out as an allowance for the plaintiff under their contract. The plaintiff, as soon as he was dismissed, returned the bacon which he had not eat, before leaving for the Springs. The bagging and rope were loaned by the defendant to the plaintiff; he actually measured, or superintended the measuring of the same to the plaintiff.
    “The plaintiff, after being dismissed by the defendant, in October, obtained employment from Dr. Anderson, as an overseer, and received forty-five dollars from him for the balance of the year.
    “The defendant paid to the plaintiff, on the 25th June, one hundred and fifty dollars, on account of his wages, and to enable him to visit, the Springs.
    “ The plaintiff wrote a letter to the defendant, at the end of the year, claiming one hundred dollars as still due to him. In it he allowed the defendant credit for one hundred and fifty dollars paid to him, as above stated, and fifty dollars for two' months’ absence at the Sulphur Springs.
    
      “ The plaintiff proved that the crop of the defendant was in good order when he left for the Springs ; that a better crop than usual was made that year. He also proved a most excellent character.
    
      “ The case was fairly submitted to the jury. They were told, if the defendant improperly dismissed the plaintiff, he might recover his whole wages ; but this was not necessarily to be the consequence.
    “ I thought that the credit of fifty dollars, for the two months’ absence at the Springs, ought to be allowed. That the jury might also allow the forty-five dollars, the wages received by the plaintiff from Dr. Anderson. These credits and deductions, after allowing the payment of one hundred and fifty dollars, would have left a balance of fifty-five dollars in favor of the plaintiff.
    “ The jury found a verdict for ofle hundred and fifty dollars. I should not have been dissatisfied with their verdict, if they had found one hundred dollars ; but the verdict allowed fifty dollars more than the plaintiff’s letter claimed, and is, I think, in that respect, wrong.”
    The defendant appealed, and now moved for a new trial, upon the following grounds, to wit.
    1. Because the'jury found for the plaintiff the full amount of the wages claimed; whereas, it is submitted, that there was no evidence that the defendant turned off the plaintiff from his service; but, on the contrary, that the contract was rescinded on the 21st June, 1850, at the urgent solicitation of the plaintiff.
    2. That even if the evidence was sufficient to warrant the inference that the defendant rescinded the contract, there was evidence of such improper conduct on the part of the plaintiff, as would have justified the defendant in so doing.
    3. That by the written admission of the plaintiff, he was only entitled, on 1st January, 1851, to one hundred dollars; from which should have been deducted forty-five dollars, received by the plaintiff while in the employment of W. W. Anderson : — and the jury was not warranted, under any view of the evidence, in finding more than fifty-five dollars for the plaintiff.
    
      Blanding, for the motion.
    
      Moses, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, there seems to be no just ground of complaint, except the finding of fifty dollars by the jury more than the plaintiff claimed and admitted to be right.

For the evidence certainly fully established that the plaintiff’s trip to the Springs was by the defendant’s consent: that he was gone a few days, or a few weeks, longer than was anticipated, was no just ground to rescind the contract, unless the defendant had shewn, that it was a wilful delay on the part of the plaintiff, or that it had prejudiced the defendant. Neither was done. Indeed, the defendant made no such objection. His letter dismissing the plaintiff, and his attempt to prove on the trial unauthorized appropriations of his property to the plaintiff’s use, shew that his dismission of the plaintiff was rested on other grounds, utterly absurd and groundless.

The jury might, in assessing the plaintiff’s damages, have deducted from the amount to which the plaintiff under his contract was entitled, the sum which he received from Dr. Anderson for three months’ services. For, in legal strictness, one of two things is to be regarded as true, either that the plaintiff by affirming that the contract ought to be continued for the year, becomes thereby the servant of the defendant, who is, therefore, entitled to his earnings for that period, or that, by entering into another’s service, he thereby assents to the termination of his former contract. But notwithstanding these positions would justify a verdict deducting the wages, yet it does not follow that, if not allowed, the verdict should be set aside.

The plaintiff sues for and claims damages for the breach of a contract — the measure is what he would have been entitled to receive. The defendant claims to diminish that by what he has earned. The plaintiff may very well reply — true, I have earned that much, but it is covered by my maintenance and my horse feed, both of which you were to provide, and by the charges I have incurred in my change from- one service to another. These were all matters for the jury, and they had the right, on comparing them with the deduction claimed, to disallow it.

But as to the fifty dollars, for the two months’ absence at the Springs, it is clear, it should have been deducted. The plaintiff agreed to allow it before he went: his letter of January deducts it, and claims only one hundred dollars.

It is, therefore, ordered that a new trial be granted, unless the plaintiff shall, upon notice of this order, enter a remittitur of fifty dollars, part of his verdict, on the record. On this being done, the motion is dismissed.

EvaNS, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion granted nisi.  