Holloway v. Talbot , 70 Ala. 389 ( 1881 )

BRIOKELL, O. J.

The principal question arising upon the assignment of errors is not new in this court, and is not ojien to further controversy. The contract made with the plaintiff was for his services as clerk in a dry-goods store, for a particular term, at stipulated wages. . Without fault on his part, and for no other reason than that it suited better new business arrangements, into which the employer entered, he was dismissed before the exjiiration of the term. He declined to accejit the dismissal as a termination of the contract, and elected to treat it as continuing; giving the employer notice of the election, and keeping himself in readiness to perform the contract, if the opjiortunity had been allowed him. The right to recover the stipulated wages, under the common counts for work and labor, after the expiration of the term, and the wages have accrued due, we do not doubt. Although there may be a sjiecial contract, if, by the breach of it, the plaintiff becomes entitled to recover a sum in numero, or which can by mere calculation be rendered certain, a recovery may be had on the common counts. Sprague v. Morgan, 7 Ala. 952; Snedicor v. Leachman, 10 Ala. 330.

To have avoided a recovery, the defendant could have shown that the plaintiff, after the dismissal, engaged in other business, thereby negativing the fact that he kept himself in readiness to perform the contract of service; or, to reduce the recovery, the defendant could have shown that employment of the same general nature as that from which he dismissed the jffaintiff was tendered to him, or could have been obtained if he had used reasonable diligence. That is matter of defense, and the burden of proving it rests on the defendant. The opportunity f<?r such service is not presumed, and the jfiaintiff was not under the duty of proving that it did not exist. It is employment of the same general nature the plaintiff was bound to accept — not employment wholly different in its nature, which could not have been contemplated by either party when the contract was entered into.—Strauss v. Meertief, 64 Ala. 299.

The acceptance of a part of the demand was not an extinguishment of it, or a waiver of the right to insist upon full payment. If there was an agreement to accept the jjart in full satisfaction, it was without consideration, and not binding upon the plaintiff because of his infancy.

We find no error in the record, and the judgment is affirmed.