#### Triangle Waist Company, Inc., Respondent, *v.*Beatrice Todd, Appellant.

First Department,

July 9, 1915.

Master and servant — contracts—breach of contract of employment — duress — damages — extinguishment of oral contract by subsequent written contract.

In an action for the breach of contracts of employment, the complaint alleged, *first,*the making of an oral contract by the terms of which the defendant was employed by the plaintiff for a term of one year, which *694contract the defendant broke on the following month, and second, the making of a written contract, by the terms of which the defendant was employed for the same period at a larger salary, which contract it is alleged the defendant broke on the next day. The defendant denied the making of the oral contract, and alleged that the written contract was void on the ground óf duress.

Held, that since the oral-contract was extinguished when the written contract was executed, it was reversible error for the court to charge that if the jury found that the parties entered into the alleged oral contract, then they could not consider the breach of the written contract and in that event plaintiff was entitled to recover the difference between the salary under the oral contract and the amount which a competing Arm had agreed to pay her.

Evidence examined, and held, insufficient to establish the defense that the contract was signed by reason of duress.

Parties who have entered into one contract may, if they see At, substitute another in place thereof. If this be done the former contract ceases to be a binding obligation upon either of the parties.

The general rule or measure of damages in a ease of this kind is the difference between the contract price and the amount which the employer has to pay to procure the work or services elsewhere. Damages cannot be recovered where the employer has made no effort to All the employee’s place, unless it appears that the services were of such a unique character that they could not have been replaced had an effort in that direction been made.

Since in this case there was nothing to show that the services of the defendant were unique in character, or that there were any other persons available who could have filled the position equally as satisfactorily as she could, at a price not in excess of what the plaintiff had agreed to pay, the defendant’s motion to dismiss the complaint on the ground that there was no proof of damage should have been granted.

Since there is no evidence that the plaintiff suffered any damage as the result of the defendant’s refusal to perform, only nominal damages may be recovered.

Appeal by the defendant, Beatrice Todd, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1915, denying the defendant’s motion for a new trial made upon the minutes.

*I. Gainsburg,*for the appellant.

*Max*D. *Steuer,*for the respondent.

*695McLaughlin, J.:

Action to recover damages upon two alleged causes of action. For a first cause of action the complaint alleges the making of an oral contract by the terms of which the defendant was employed by the plaintiff for the term of one year from July 5, 1913, at a salary of forty-five dollars per week, and which contract it is alleged the defendant broke by leaving the plaintiff’s employ on the twenty-fifth of August following. For a second cause of action the complaint alleges the making of a written contract on the 26th of August, 1913, by the terms of which the defendant was employed for the period of one year from July 5, 1913, at a salary of one hundred dollars per week, and which contract it is alleged the defendant broke by leaving on the day after the contract was made.

The defendant denied the making of the alleged oral contract on July fifth and alleged that the written contract of August twenty-fifth was void on the ground of duress.

At the close of the testimony the court held that the defendant had failed to establish that the contract of August twenty-fifth was void for duress and the case was sent to the jury to determine the damages which plaintiff had suffered by reason of the breach of the contract of July fifth, if such contract were made, and if not made, what damages had been sustained by reason of the breach of the written contract. The jury rendered a verdict in favor of the plaintiff for $3,420, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

A very slight consideration of the facts set out in the record will demonstrate that the judgment and order appealed from must be reversed. The defendant, a designer of shirt waists, first entered the employ of the plaintiff in August, 1912, at a salary of forty dollars per week. On the 5th of July, 1913, she threatened to terminate such employment unless her salary were raised, and, as a result of negotiations between her and her employer, her salary was raised to forty-five dollars per week — there being a dispute between the parties as to whether she were engaged only by the week or for a period of one year. The plaintiff’s witnesses, Blanck, its president, and Harris, its secretary, testified that the defendant agreed, if her salary *696were raised to forty-five dollars per week, she would remain a full year. This defendant denied. After her salary was raised to forty-five dollars per week she continued in the employ of the plaintiff until the 24th or 25th of August, 1913. On the 25th of August, 1913, she entered into a written contract with the Esskay Waist Company at a salary of one hundred dollars per week. On the morning of the twenty-sixth of August, as she was leaving her home for the purpose of going to her new position, she was met by Harris with an automobile and taken to the plaintiff’s place of business. She testified that he induced her to ride with him on the pretext of taking her to the office of the Esskay Waist Company, bui instead took her to the office of the plaintiff. There, efforts were made to induce her to repudiate her contract with the Esskay Waist Company and to sign a written contract with the plaintiff at the same salary she w as to receive from the other company. She was shown a proposed contract and permitted to take and discuss it with her brother at his place of business. After doing so she returned to the plaintiff’s office, where she signed the contract and left. This contract was dated July 5, 1913, and by its terms the defendant was employed for a period of one year from that date at a salary of one hundred dollars per week. She deliberately broke this contract on the twenty-seventh of August. The plaintiff then endeavored to enter into another contract on substantially the same terms as the written one, except that she was to have one thousand dollars bonus, provided she performed all the terms of the contract on her part to be performed. This, however, she refused to execute, plaintiff not agreeing to some of the terms and conditions imposed by her.

The trial court very properly, as it seems to me, held that the defendant had utterly failed to establish the defense that the contract was signed by reason of duress or coercion practiced upon her. It was a deliberate act upon her part and if, by her failure to perform, plaintiff suffered damage, it was entitled to a recovery against her.

Notwithstanding the fact that the execution of the written contract was conceded, its breach established, and that it was clearly intended by both parties to take effect as of July 5, *6971913, and if there were an oral contract in existence, to take its place and supersede it — the court, nevertheless, charged that if the jury found that the parties entered into the alleged oral contract of July fifth, then it could not consider the breach of the written contract, and in that event plaintiff was entitled to recover, as damages, the difference between $45 per week and the amount which the Esskay Waist Company had agreed to pay her, viz., $100 per week. This was clearly an erroneous instruction as to the law, and an exception having been taken, necessitates a reversal of the judgment.

The oral contract, assuming it was for a year, was extinguished by mutual agreement when the written contract was signed. The written was clearly intended to take the place of the oral and to be a substitute for it, and the jury should have been so instructed. Parties having entered into one contract are at liberty, if they see fit, to substitute another in place of it and, if that be done, then the former contract ceases to be a binding obligation upon either of the parties. It is then as though such contract had never been made. *(Hart*v. *Lauman,*29 Barb. 410; *McCreery*v. *Day,*119 N. Y. 1; *Stewart*v. *Keteltas,*36 id. 388; *Rollins*v. *Marsh,*128 Mass. 116; Clark Cont. [3d ed.] 526; 9 Cyc. 351.)

Under the instruction given it is urged by the respondent that the jury had a right to and did find that the value of defendant’s services was $100 per week, plus the $1,000 bonus which plaintiff offered to give her provided she entered into a contract with it and performed the same; in other words, according to this contention plaintiff was deprived of defendant’s services for forty-four weeks, August 25, 1913, to July 5, 1914, at $55 per week, $2,420, plus a bonus of $1,000, making $3,420, the amount of the verdict. Assuming this to be so, it does not establish that the plaintiff had been damaged at all. It did not pay the $100 per week during the time stated, nor did it pay the $1,000 bonus. But, as already suggested, the plaintiff was not entitled to recover for a breach of the oral contract because that was extinguished when the written contract was entered into. Nor was the plaintiff entitled to recover other than nominal damages under the written contract, because there is absolutely no evidence in the record that it *698suffered any damage as the result of the defendant’s refusal to perform. The plaintiff, so far as appears, could have procured another designer equally as skillful as the defendant, but it made no effort to do so. The general rule or measure of damage in a case of this kind is the difference between the contract price and the amount which the employer has to pay to procure the work or services elsewhere. (2 Sedg. Dam. [9th ed.] 1372; *Haskell*v. *Osborn,*33 App. Div. 127.) Damages cannot be recovered where the employer has made no effort to fill the employee’s place (26 Cyc. 1023), unless it appears that the services were of such a unique character that they could not have been replaced had an effort in that direction been made. Here there is nothing to show that the services of the defendant were unique in character or that there were not other persons available who could have filled the position equally as satisfactorily as she could, at a price not in excess of what the plaintiff had agreed to pay. Nor does the mere fact that two rival concerns were willing to pay defendant a large salary establish to the contrary. This being so, it seems to me the defendant’s motion to dismiss the complaint on the ground that there was no proof of damage should have been granted.

The judgment and order appealed from, therefore, are reversed, with costs, and since under the proof plaintiff could only have recovered nominal damage, judgment is, therefore, directed for the plaintiff for nominal damages as if a verdict for nominal damages had been directed by the trial court.

Ingraham, P. J., Laughlin, Dowling and Hotghkiss, JJ., concurred.

Judgment reversed, with costs, and judgment directed for plaintiff for nominal damages as stated in opinion.