Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1903-05-09
IA1lMER vs.. YORK MILLS.

LATlMER vs.. YORK MILLS.
The Columbia State Of Thursday
prints the following synopsis of the
opinion Of the supreme court rendered
in connection with its reversal Of the
court below in the case Of Latimer va.
York Cotton mills.
This in an action, commenced Feb
ruary, for 5000 damages for the breach
of parol contract-the plaintiff alleg-
ing that on Feb. II, 1901, the defen-
dant engaged the plaintiff as manager
of certain branch Of it's business, for
the term Of one year, at salary Of
$500, payable In equal monthly parts,
and that the defendant, without just
cause, failed to employ or to pay the
plaintiff as by said contract the de-
fendant had undertaken to do, and
that plaintiff has been unable to pro-
cure other steady or profitable employ
ment.
The answer denies the plaintiffs al
legations, pleads the statute OF frauds,
alleges that "plaintiff was during the
term Of said alleged employment en-
gagged in other trades, occupations and
business" alleges that the contract was
by the month, at $50 per month, and
that the same was lawfully terminated
by the defendant at the end Of one
month. The defendant offers to allow
Judgment for $50 and costs.
The jury Judge Watts. presiding)
found for the plaintiff $3.50, and judg-
ment was entered accordingly. The
defendant appealed.
Mr.. Justice Jones: Where an action
against an employer for wages or sal
ary Is brought subsequent to the ex-
piration of the term Of employment the
measure Of damages is prima facie the
wages for the unexpired portion of the
term, this amount to be diminished by
such sums as the servant has earned
or might have earned by q reasonable
effort to obtain other employment in
the same line of business 20 Enc.
Law cd ed.) 81.
A recovery cannot be entirely de-
feated by showing that the servant OBJ
tained or could have obtained other
employment, but 1t Is always compe-
tent for the master to show these facts
in mitigation Of damages-the burden
Of proof in all cases being upon him.
Ibid.
To the same effect see Costigan v.
DAILY, 81 N. Y. 1852; King v. Steiren, 4
Penn. st. 99; Emery v. Steckel, 126
Penn. st. III; Hinchcliffe v. Koontz,
E121 Ind. 422; Cox v. Bearden, "a Ga.
3O4; Baltimore company v. Pickett, 22
L. r. A. $50; Strauss v. Meertiff, 80
Am. Rep. s.
The burden of proving that he has
not been able to obtain other employ
ment Is upon the plaintiff. Louis Co.
v. Scott, 95 KY, 4s4.
AS q general rule facts in justif1ca-
tion and mitigation Of damages should
be pleaded If the defendant wishes to
prove them at the trial. Enc. Pl
| & Pr. 773.
+ Whilst the allegation in the COM
plant, that plaintiff has been unable
to obtain other steady or profitable
employment" and the admitted allega-
tion in the answer that plaintiff was
during the term Of said alleged en-
ployment engaged in other trades, oc-
cupations and business" are rather in
definite, yet they must be construed
when taken together, as raising the
issue in mitigation Of damages.
| Whilst the plaintiffs allegation that
the defendant, as stated, had had other
employment was not necessary and did
not require the plaintiff to offer evil
dence to support the same, yet upon a
denial thereof 1t became material In
making an issue in behalf Of the defen-
dant.
The plaintiff may so frame his COM
plant or may insert In 1t allegations OF
such sort that general denial will ad-
NIT proof of facts which would be
strictly matter by way Of confession
and avoidance under the former pro-
cedure. Pom. Code REM, sec. 672;
McElwee v. Hutchinson, 10 8. C. 438;
Long v. Railway. so 8. c., 49, ~ s. E.
l531.
The trial Judge erred in refusing to
charge that IF the jury find from the
preponderance of the testimony that
the plaintiff did make such contract
as alleged with the defendant and II
during the continuance of that :,cpn-
tract the plaintiff obtained profitable
employment elsewhere, then the defen-
dant Is entitled to credit for. the
amount received by defendant z:
The charge thus held erroneous could
not be held harmless because the. de-
fendant was. permitted to introduce
evidence as to the sums received by
the plaintiff from other employment.
The presumption is that the jury
followed the courts instructions and
did not consider the matter Of such
outside employment or its profits.
There should be a new trial.
Mr.. Justice Gary concurs.
Mr.. Chief Justice Pope, concurrine
in the result: my mind has long beer
convinced that in actions based upon
a breach Of contract for employment
the employer Is entitled to have the
amount due to the employe reduced by
the actual earnings of the employe
during the period Of employment con-
tracted for, which time was spent out
of employers service"
Judgment below reversed and new
trial ordered. Opinions filed April 20.
Mr.. ]. S. Brice, Mr.. w. w. Lewis for
appellant; Mr.. VIM. B. McCaw for re-
spondent.
LOCAL LACONlCS.