#### Elizabeth Levin, Plaintiff, *against*The Standard Fashion Company, Defendant.

(Decided December 1st, 1890.)

Plaintiff, while in the employ of defendant under a hiring for a year at a salary payable weekly, on the day before the expiration of a week, had an ' altercation with defendant’s superintendent, during which he assumed that she resigned her employment; but this she, at the time, explicitly controverted. On the next day, and several days following, she offered to do her work, but was not permitted to resume work. Her salary for that week not having been paid, she brought an action against defendant for “wages,” in which defendant admitted an indebtedness of an amount less than the week’s salary, and paid the sum into court; and, upon proof of the contract, the value of the services not being litigated, plaintiff recovered the amount of her salary for one week. *Held,*that the judgment was for wages due on the contract, and was not a bar to a subsequent action for breach of the contract by dismissing plaintiff.

*405In such action for damages for dismissal, it appeared that defendant’s superintendent had called plaintiff a thief; had accused her of lying, and shaken his fist at her; had used violent language to her; had laughed and jeered at her; had put her out of the office in which she worked; and had brought a policeman to stand guard over her. *Held,*that she was not bound to accept an offer of re-employment by defendant, and such offer was not available to reduce the damages; and plaintiff was not precluded from showing such reason for refusing the offer by the fact that, when it was made, she rejected it because not in accordance with the original contract.

Appeals from, a judgment of the General Term of the City-Court of New York affirming a judgment of that court entered on the verdict of a jury and orders denying the motions of both parties for a new trial.

The facts are stated in the opinion. <

*Theo. N.*Melvin, for plaintiff.

*A. Q.*iShenstone, for defendant.

Pryor, J.

Both plaintiff and defendant appeal from a judgment of the General Term of the City Court affirming a judgment on a verdict and orders denying a new trial as moved by each party. The action is for damages for breach of a contract of employment. The contract is conceded; and on this appeal the verdict of the jury in favor of plaintiff is conclusive of the breach by defendant *(Arnstein*v. *Haulenbeek,*decided this term, *ante,*p. 382).

As to defendant’s appeal, the facts essentially bearing on the question for decision are : That defendant hired plaintiff for a year, at a salary payable weekly; that she was duly paid except for the week she was discharged ; that on Friday, the day before the expiration of the week, she had an altercation with defendant’s superintendent, during which he assumed that she resigned her employment, but which assumption she then explicitly and persistently controverted; that the next day, Saturday, she went to the office of defendant and said to the president, “ I come to do my work, I am ready to do my work; ” to which he replied that “ he wanted nothing what*406ever to do with me ; ” that she continued to go to the office for several mornings with offers to resume work, but he answered her as on Saturday, that “ he wanted nothing to do with her.”

The contention on the trial was whether plaintiff had resigned or had been discharged; but in this court, the verdict for plaintiff concludes the question in her favor. Both by plea and proof, the defendant interposed the defense .of former recovery; and the question is, was the defense sustained ? The plaintiff had recovered a judgment against defendant in a district court, and the precise point in controversy is whether that judgment was for wages- due by the contract of hiring, or for a *quantum meruit*or -damages for breach of contract? For, if the recovery in the district court was for an instalment of the' stipulated salary due- by the terms of the contract,- itis.no bar to this action for general damages for breach of the cóntract *(Perry*v. *Dickerson,*85 N. Y. 345). On the other hand, if the -recovery in the-district court were upon a *quantum meruit*for the value of services rendered, or for damages for-breach of contract, then the judgment in that court operates as an estoppel in this action *(Moody*v. *Leverich,*4 Daly 401, 408). Now, to ascertain what was determined in a former action, “ it is proper to look beyond what appears on the face of the judgment, to every allegation which,' having been made on one side and denied on the other, was at issue and determined in the course - of the proceedings” *(Griffin*v. *Railroad Co.,*102 N. Y. 449; 452; *Bell*v. *Merifield,*109 N. Y. 202).

Adverting to the pleadings and evidence in the district court, we see that the action was on the contract (“ contract admitted in evidence ”) ; that the value of the services was not litigated; that plaintiff’s claim was “for wages” *eo nomine,*and not for damages for the wrongful discharge; and that her recovery was of the $25 stipulated to be paid her for one week’s services. That the action was tried as involving a claim for “ wages ”■ due and payable, is conclusively evident by the express admission of defendant of “ an indebtedness of twenty dollars due plaintiff” ; and by the pay*407ment of that sum into court. Plaintiff declined to accept the sum offered, claiming an indebtedness of $25 for an entire week’s service. Upon this claim the litigation proceeded— the defendant contending that plaintiff abandoned work on the afternoon of Friday, 9th December, and plaintiff contending that she rendered service every day of the week (including Saturday, 10th December), for which she claimed compensation. Upon this conflict of evidence the justice gave judgment for plaintiff for $25—a week’s wages—and I hold that the judgment so rendered is a conclusive determination that the action was for an instalment of salary, and that the wages had been earned by a due rendition of service. The uncontradicted evidence is, that she was at her place of business every day of the week (including Saturday) for which she claimed the salary; and if defendant forbade her to "work on Saturday, that would not defeat her recovery of the week’s wages *(Vail*v. *The Company,*32 Barb. 564, 567). The case is distinguishable from *Moody*v. *Leverich*(supra), in the essential circumstance that there the judgment in the former action could have been had only on the ground of a recovery for damages—since upon the conceded facts the plaintiff had not worked for the period requisite to entitle him to an instalment of salary; whereas here the plaintiff rendered full service on every day of the week except Saturday, and on that day she repaired to her place of business and tendered her services. It was work for her to go to defendant’s office— her place of business—and the defendant could not defeat her recovery for a week’s wages by refusing her services for a part of the day. The law takes no account of fractions of a day. At all events, upon this point, namely, that plaintiff had earned the week’s salary, the judgment of the district court is *res adjudicata;*and is not here open to contradiction *(Blair*v. *Bartlett,*75 N. Y. 150; *Smith*v. *Hemstreet,*54 N. Y. 644).

Furthermore, the judgment in the district court, introduced by the defendant, is conclusive evidence in this action that the plaintiff had not been discharged on the 9th of December : for, had she then been discharged she could not have recovered *408for wages for the week ending on the 10th of December *(Moody*v. Leverich, *supra; Howard*v. *Daly,*61 N. Y. 362). “ Whatever was requisite to be proved and established as facts by plaintiff in order to obtain judgment is, so long as the judgment remains unreversed, *res adjudieata*between the parties, and conclusive upon them ” *(Blair*v. Bartlett, 75 N. Y. 150).

The verdict of the jury in plaintiff’s favor, determines that she has the right and justice of the case ; and if she is to .be defeated of her dues by a technical defense, that defense must be clearly established. “ The burden of proof is upon the party claiming an estoppel by a former judgment, to show clearly that the fact in issue was determined in the former action ” *(Zoeller*v. *Riley,*100 N. Y.102). It is not apparent that in the action in the district court plaintiff recovered anything upon a *quantum meruit*or on account of damages for breach of contract; and accordingly, the defense of *res adjudieata*fails.

As to plaintiff’s appeal, there must be another trial of the action, because of error in the judge’s charge. It was in evidence that, after the dismissal of plaintiff, an offer was made to take her back in the service of defendant, upon the conditions of the original contract,—except that the term of service was to be from the date of the offer, 13th of January, 1888, instead of from the time of her dismissal, the 9th or 10th of December, 1887. (Upon the evidence it was questionable on which of these days her dismissal definitely took effect). This offer the plaintiff rejected, on the sole ground that the proffered employment “ from to-day on ” was notin accordance with the original contract, which was an agreement on the same terms from the 27th of June, 1887, to the 27th of June, 1888. It is unquestionable law, that a servant wrongfully discharged, must make reasonable, endeavor to obtain other employment, and that in an action for his wrongful discharge his damages are to be reduced by the sum that he has earned in other employment, or that he might have earned by reasonable effort *(Polk*v. *Daly,*4 Daly 41). But, the discharged servant is under no obligation to accept an employment? of a *409different nature from that for which he contracted, or in a different locality from that in which he contracted to work; nor to accept employment from a person to whom there is reasonable ground of objection (8 Wait’s Actions and Defenses, 301; *Strauss*v. Merteef., 64 Ala. 299).

Now, it was in evidence that defendant’s superintendent *(i. e.,*the defendant corporation itself) had treated plaintiff in the most brutal manner—had called her a thief; had accused her of lying; had shaken his fist at her; had used violent language to her; had laughed and jeered at her; had put her •out of the office, and had a policeman to stand guard over her.

After the wrongful dismissal of an employe, the employer has a *locus*poenitentice, and may reduce the damage to his servant by an offer of re-employment *(Bigelow*v. Company, 39 Hun 599; Ingraham, J., in *Thompson*v. *Weed,*1 Hilt. 96 Robinson, J., in *Polk*v. *Daly,*4 Daly 415). But, such offer is ineffectual to reduce damages unless the discharged servant be bound to accept it; and such offer the discharged servant is not bound to accept from a person to whom there is a reasonable ground of objection. *(Strauss*v. *Merteef,*64 Ala. 299 ; 8 Wait’s Actions and Defenses, 301).

And, surely, it is unnecessary to argue the proposition, that after the cruel treatment of plaintiff by defendant’s superintendent, she was under no obligation to resume work and habitual association with a person of such morals and such manners. Upon the evidence, therefore, the jury might have found that the superintendent’s misbehavior to plaintiff disentitled defendant to reclaim her services; and so that her rejection of its offer was inoperative to reduce the amount of her recovery. But, by the peremptory rulings of the court, the jury were not allowed to say whether defendant’s conduct towards plaintiff justified her rejection of its offer; and upon the assumption that she was bound to accept the offer, the amount of her recovery was diminished by the sum she would have earned if she had accepted the offer.

By its seventh instruction, the court charged the jury that “ plaintiff was bound to accept such re-employment, and thus *410keep down the damages for the breach; ” by its eighth instruction, that “ plaintiff, by stating the ground upon which she refused to render her services to defendant, waived all other ground; ” and finally the court charged that “ all plaintiff can recover is $150.43; ” whereas, had she not been charged with what she would have earned by acceptance of the offer, the amount of her recovery would have been $468.33.

Plaintiff duly excepted to these rulings ; and whether they be correct or not depends upon the question whether, by stating one ground for rejecting defendant’s offer of re-employment, she was precluded from showing, at the trial, another valid reason for refusing the offer. I am aware of no authority for the ruling of the court below; while *Strauss*v. *Merteef*(64 Ala. 299, 302, 309), is a distinct and decisive authority to the contrary.

The judgment must be reversed and a new trial ordered, costs to abide the event.

J. F. Daly, Ch. J., and Bischoee, J., concurred.

Judgment .reversed and new trial ordered, with costs to abide event.