Roberts v. Rigden , 81 Ga. 440 ( 1888 )

Bleckley, Chief Justice.

Eznployed for the year to work in furniture factozy .at $1.50 per day. Dischaz’ged before first quarter expired. Suit for damages by breach of the contract, the discharge alleged to -be without cause. Action commenced before the year expired. Damages laid at $370.50. Trial had after the year expired. Verdict for $200.00. Evidence showed that plaintiff realized $67 from other employment after discharge and before the end of the year. No evidence of wazit of diligence to procure other employment. There had been in the previous year the same relatiozz betweezz the parties at less wages. Most probably the contract for the previous service was in writing, with a stipulatiozi that defendants could discharge plaintiff' whenever not satisfied to retain him. The alleged writing had been lost at the time of trial. Whether in the subsequent parol contract (the one. sued on), the.terms of the writing as to dischai'ge were adopted is uncertain. The defendant’s justification for the discharge turned on that question, and the jury must have found in the negative.

1. That the state of facts down to the time of trial, or rather down to the expiration of the term of hiring, the trial having been had afterwards, could be. considered in order to ascertain the'plaintiff’s damages resulting from the alleged breach, was ruled at the present term in the case of Roberts vs. Crowley, (ante, p. 429.) Though' the action was commenced long before the term ended, yet all the damages resulting from the breach, up to the limit of the agreed wages, which the plaintiff could prove when the trial took place, could ])e recovered. If the plaintiff was in no default after the breach, and could make nothing from other employment, his damages were equal to the agreed wages. Whether in, default or not and he made something, what he made went to lessen his damages. What he could or did make became susceptible of accurate proof by reason of the term of hiring having expired when the trial was had. The lapse of time did not make his damages any greater than they were at the time of the breach, hut only rendered them more certain and susceptible of accurate estimation. Before the year expired they were, in part, only probable, and if the trial had taken place during the year, the whole damage would not have been capable of proof. But when the trial in this case, as well as in Roberts vs. Crowley, took place, the whole could be proved, and nothing was left to conjecture or future 'probability.

2. The verdict was for less than it might have been, and tbe motion for a new trial suggests that it should have been more or nothing. That it was for something shows that the jury believed the facts were so far with the plaintiff as to entitle him to maintain his action. The defendant certainly has no right to a new trial because the verdict was too small.

3. The controlling question of fact in the case was, whether the terms of the alleged written, contract for 1886 became by stipulation a part of the agreement for 1887. No witness testified positively to the affirmative of this question, and unlike the case of Roberts vs. Crowley (supra), there was no writing produced from which the affirmative could be reasonably inferred.' It was the written recommendation for other employment which was the main factor in the case just referred to in showing that the right of discharge was recognized by both sides and acted upon, but here there was no such element. On the contrary, the matter in dispute was doubtful and the jury solved the doubt in favor of the the plaintiff and against the defendant.

The court did not err in refusing a new trial.

Judgment affirmed.