Babcock v. Appleton Manufacturing Co. ( 1896 )

Mahshall, J.

Some exceptions were taken to the rejection and reception of evidence, not necessary to be reviewed, as it clearly appears that defendant was not prejudiced thereby.

On the 17th day of December, 1891, after the written contract was made, plaintiff wrote to O. C. Yaughan, of Jefferson, Wisconsin, who was engaged in the sale of harrows in competition with defendant, to find out what he-would allow plaintiff for such of the Yaughan harrows as plaintiff might sell in Wisconsin. To this letter, December 18, 1891, Yaughan replied by letter that he would allow plaintiff $1 per harrow on approved orders, payment to be made when the harrows were paid for. On the 17th day of December, 1891, plaintiff had some talk with one Arntz in regard to the latter buying some of the Yaughan harrows. Arntz said he would take two, and plaintiff so informed Yaughan, but no harrows were in fact sold to Arntz. All this occurred before the 1st day of January, when plaintiff’s term of employment commenced. Looking at the evidence-in the most favorable light for defendant, the facts as above stated were established, and they are all the facts shown by the evidence upon which defendant relied as a justification for discharging the plaintiff. The answer set forth that at divers other times, while in the employ of defendant, plaintiff secretly agreed with one Yaughan to sell harrows for him, and that he actually did sell such harrows and derived profit therefrom, and other acts are set forth in the answer as having been committed by plaintiff in breach of his contract ; but there is an entire failure of evidence to sustain such charges, or to show that plaintiff engaged in any business, after the commencement of his term of employment, inconsistent therewith. The court was justified, therefore, in finding that the material allegations of the answer were not sustained by the evidence.

It is claimed on the part of appellant that the court erred in allowing plaintiff full wages for the sixty days; that the proper rule is the difference between the wages agreed upon and the amount the employee earned, or might reasonably have earned, in other employment; and that it was incumbent on plaintiff to show how much less he was able to earn than he was to receive under the contract. The rule of damages is as claimed, but not the rule in respect to the burden of proof. In such a case, what the employeé earned or might have earned, defendant is only entitled to by way of mitigation of damages. It is a matter in recoupment, which it is incumbent upon defendant to set up and establish. Kirk v. Hartman, 63 Pa. St. 97; Horn v. Western L. Asso. 22 Minn. 233; Howard v. Daly, 61 N. Y. 363; Sutherland v. Wyer, 67 Me. 64; 14 Am. & Eng. Ency. of Law, 797. In Barker v. Knickerbocker L. Ins. Co. 24 Wis. 630, it is stated, in effect, that while the rule is, in case an employee is discharged without cause before the expiration of his term, in a suit by him against his employer for wages for the balance of such term, that the damages maybe reduced by the amount which he did earn, or might reasonably have earned, elsewhere, yet the burden is upon the defendant to show affirmatively what plaintiff did in fact earn elsewhere, or that he might have had employment and compensation therefor, and the probable amount of it, and, if he offers no evidence on the subject, then no question is presented in regard to mitigation of damages, under such rule, to be passed upon by either court or jury.

We perceive no reversible error in the record, and it follows that the judgment of the circuit court should be affirmed.

By the Court. — Judgment affirmed.