By the Court, Beardsley, J.
As a general principle, nothing is better settled than that upon these facts the plaintiff is entitled to recover full pay for the entire year1. He was ready during the whole time to perform his agreement, and was in no respect in fault. The contract was in full force in favor of the plaintiff although it had been broken by the defendants. In general, in such cases, the plaintiff has a right to full pay. The .rule has been applied to contracts for the hire of clerks, agents and laborers, for a year or a shorter time, as also to the hire of domestic servants, where the contract may usually be determined by a month’s notice, or on payment of a month’s wages. [613]*613The authorities are full and decisive upon this subject. (Chit. on Cont. 5th Am. ed. 575 to 581; 1 Chit. Gen. Pr. 72 to 83; Browne on Actions at Law, 181 to 5, 504, 5; Beeston v. Collyer, 4 Bing. 309; Fawcett v. Cash, 5 Barn. & Adol. 904; Williams v. Byrne, 7 Adol. & Ellis, 177; French v. Brookes, 6 Bing. 354; Gandell v. Pontigny, 4 Camp. 375; Robinson v. Hindman, 3 Esp. 235; Smith v. Kingsford, 3 Scott, 279; Smith v. Hayward, 7 Adol. & Ellis, 544.)
It has, however, been held, and rightly so, as I think, that where a seaman hired for the outward and return voyage, was improperly dismissed by the captain before the service was completed, a recovery of wages by the seaman, for the whole time, was proper, deducting what he had otherwise received for his services after his dismissal and during the time for which his employer was bound to make payment. (Abbott on Ship. 4th Am. ed. 442, 3; Hoyt v. Wildfire, 3 John. 518; Ward v. Ames, 9 id. 138; Emerson v. Howland, 1 Mason, 51, 2.)
And upon the same principle, where a merchant engages to [614]*614furnish a given quantity of freight for a ship, for a particular voyagej and fails to do so, he mtist pay dead freight, to the amount so agreed by him, deducting whatever may have been received from other persons, for freight taken in lieu of that which the merchant had stipulated to furnish. (Abbott, 277, 8; Puller v. Staniforth, 11 East, 232; Puller v. Halliday, 12 id. 494; Kleine v. Catara, 2 Gall. 66, 73.) Upon this principle, as I understand, the case of Shannon v. Comstock, (21 Wend. 457,) was decided. The defendants there engaged to pay the plaintiffs fifty-five dollars for the transportation of a certain number of horses, on the canal, from Whitehall to Albany, but failed to comply with their agreement. An action was thereupon brought to recover the fifty-five dollars, and the. contract and its violation having been shown, “ the defendants! offered to prove that the damages sustained by the plaintiffs did not exceed five dollars.” What facts were offered to be given in evidence in order to establish this result, 'cannot be collected with absolute certainty, from the report of the case, but it does not appear that any objection was made to the form of the offer, and the report shows that the evidence was objected to and excluded. I infer then, that the offer of the defendants was to show, by competent evidence, that the plaintiffs took other freight on board their boat instead of the horses, so that their loss, by the violation of this contract, was but small. Upon the ground already stated, that loss was the amount the plaintiffs were in law and justice entitled to recover. So this court held, and as the evidence had been rejected in the court below, the judgment was reversed. The views of the chancellor, as stated in the case of Taylor v. Read, (4 Paige, 571,) are to the same effect, and the propriety of the rule seems to me too apparent to admit of doubt.
In these cases it appeared, or was offered to be shown, that the plaintiffs had in fact performed services for others, and for which they had been paid, in lieu of those they had bound themselves to perform for the defendants, and which the latter had refused to receive. In Heckscher v. McCrea, (24 Wend. 304,) the court went a step further. That case [615]*615arose in the superior court of the city of New-York, where McCrea was plaintiff. It was an "action for dead freight which the plaintiff claimed under a special contract with the defendants. They had agreed with the plaintiff to furnish a given number of tons of freight, at a certain price, for a return cargo from China to New-York, in the plaintiff’s ship. A part of the freight was furnished by the defeñdants, as agreed, but they fell short about one hundred and thirty tons. The agents for the defendants at Cantón, where the ship then was, having no more freight to put on board for the defendants, offered to supply the deficiency, from the goods of other persons in their hands, which the agents were authorized to ship to the United States: such shipment to be made at a reduced, although at the then current rate, but with an express agreement that receiving this freight on such reduced terms should not interfere with the original arrangement between the parties to this suit. This offer was declined, and to the extent of this deficiency the ship came home empty. The action was to recover for this deficient freight. The court held that the plaintiff should have taken the freight offered, although' at a rate below what thé defendants had agreed to pay: that so far it would have relieved the defendants without doing injury to the plaintiff, and by which about two thirds of the amount now claimed might have been saved.
In all the cases I have cited, the facts on which the delinquent party sought to bring the amount to be recovered, below the sum agreed to be paid, were proved or offered to be proved on the trial. Nothing was left to inference or presumption, and it was virtually conceded that the onus of the defence rested on the defendant. They are also cases in which the plaintiffs had either earned and received money from others, during the time when they must have been employed in fulfilling their contract with the defendants, or in which they might have earned it in a business of the same character and description with that which they had engaged with the defendants to perform.
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By the Court, Beardsley, J.
As a general principle, nothing is better settled than that upon these facts the plaintiff is entitled to recover full pay for the entire year1. He was ready during the whole time to perform his agreement, and was in no respect in fault. The contract was in full force in favor of the plaintiff although it had been broken by the defendants. In general, in such cases, the plaintiff has a right to full pay. The .rule has been applied to contracts for the hire of clerks, agents and laborers, for a year or a shorter time, as also to the hire of domestic servants, where the contract may usually be determined by a month’s notice, or on payment of a month’s wages. [613]*613The authorities are full and decisive upon this subject. (Chit. on Cont. 5th Am. ed. 575 to 581; 1 Chit. Gen. Pr. 72 to 83; Browne on Actions at Law, 181 to 5, 504, 5; Beeston v. Collyer, 4 Bing. 309; Fawcett v. Cash, 5 Barn. & Adol. 904; Williams v. Byrne, 7 Adol. & Ellis, 177; French v. Brookes, 6 Bing. 354; Gandell v. Pontigny, 4 Camp. 375; Robinson v. Hindman, 3 Esp. 235; Smith v. Kingsford, 3 Scott, 279; Smith v. Hayward, 7 Adol. & Ellis, 544.)
It has, however, been held, and rightly so, as I think, that where a seaman hired for the outward and return voyage, was improperly dismissed by the captain before the service was completed, a recovery of wages by the seaman, for the whole time, was proper, deducting what he had otherwise received for his services after his dismissal and during the time for which his employer was bound to make payment. (Abbott on Ship. 4th Am. ed. 442, 3; Hoyt v. Wildfire, 3 John. 518; Ward v. Ames, 9 id. 138; Emerson v. Howland, 1 Mason, 51, 2.)
And upon the same principle, where a merchant engages to [614]*614furnish a given quantity of freight for a ship, for a particular voyagej and fails to do so, he mtist pay dead freight, to the amount so agreed by him, deducting whatever may have been received from other persons, for freight taken in lieu of that which the merchant had stipulated to furnish. (Abbott, 277, 8; Puller v. Staniforth, 11 East, 232; Puller v. Halliday, 12 id. 494; Kleine v. Catara, 2 Gall. 66, 73.) Upon this principle, as I understand, the case of Shannon v. Comstock, (21 Wend. 457,) was decided. The defendants there engaged to pay the plaintiffs fifty-five dollars for the transportation of a certain number of horses, on the canal, from Whitehall to Albany, but failed to comply with their agreement. An action was thereupon brought to recover the fifty-five dollars, and the. contract and its violation having been shown, “ the defendants! offered to prove that the damages sustained by the plaintiffs did not exceed five dollars.” What facts were offered to be given in evidence in order to establish this result, 'cannot be collected with absolute certainty, from the report of the case, but it does not appear that any objection was made to the form of the offer, and the report shows that the evidence was objected to and excluded. I infer then, that the offer of the defendants was to show, by competent evidence, that the plaintiffs took other freight on board their boat instead of the horses, so that their loss, by the violation of this contract, was but small. Upon the ground already stated, that loss was the amount the plaintiffs were in law and justice entitled to recover. So this court held, and as the evidence had been rejected in the court below, the judgment was reversed. The views of the chancellor, as stated in the case of Taylor v. Read, (4 Paige, 571,) are to the same effect, and the propriety of the rule seems to me too apparent to admit of doubt.
In these cases it appeared, or was offered to be shown, that the plaintiffs had in fact performed services for others, and for which they had been paid, in lieu of those they had bound themselves to perform for the defendants, and which the latter had refused to receive. In Heckscher v. McCrea, (24 Wend. 304,) the court went a step further. That case [615]*615arose in the superior court of the city of New-York, where McCrea was plaintiff. It was an "action for dead freight which the plaintiff claimed under a special contract with the defendants. They had agreed with the plaintiff to furnish a given number of tons of freight, at a certain price, for a return cargo from China to New-York, in the plaintiff’s ship. A part of the freight was furnished by the defeñdants, as agreed, but they fell short about one hundred and thirty tons. The agents for the defendants at Cantón, where the ship then was, having no more freight to put on board for the defendants, offered to supply the deficiency, from the goods of other persons in their hands, which the agents were authorized to ship to the United States: such shipment to be made at a reduced, although at the then current rate, but with an express agreement that receiving this freight on such reduced terms should not interfere with the original arrangement between the parties to this suit. This offer was declined, and to the extent of this deficiency the ship came home empty. The action was to recover for this deficient freight. The court held that the plaintiff should have taken the freight offered, although' at a rate below what thé defendants had agreed to pay: that so far it would have relieved the defendants without doing injury to the plaintiff, and by which about two thirds of the amount now claimed might have been saved.
In all the cases I have cited, the facts on which the delinquent party sought to bring the amount to be recovered, below the sum agreed to be paid, were proved or offered to be proved on the trial. Nothing was left to inference or presumption, and it was virtually conceded that the onus of the defence rested on the defendant. They are also cases in which the plaintiffs had either earned and received money from others, during the time when they must have been employed in fulfilling their contract with the defendants, or in which they might have earned it in a business of the same character and description with that which they had engaged with the defendants to perform.
The principles established by the cases referred to, seem to me just, and although I have found no case in which they have [616]*616been applied to such an engagement as that between these par ties, still I should have no hesitation, where the facts would allow it to be done, to apply them to such a case as this. '
But first of all the defence set up should be proved by the one who sets it up. He seeks to be benefitted by a particular matter of fact, and he should therefore prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer,. and presumptions, between him and the person wronged, should be made in favor of the latter. For this reason therefore the onus must in all such cases be upon the defendant.
Had it been shown, in the case at bar, that the plaintiff, after his dismissal, had engaged in other business, that might very well have reduced the amount which the defendants otherwise ought to pay. For this the cases I have referred to would furnish sufficient authority. But here, it appears that the plaintiff was not occupied during any part of the time from the period of dismissal to the close of the year.
Again, had it been shown on the trial, that employment of the same general nature and description with that which the contract between these parties contemplated, had been offered to the plaintiff, and had been refused by him, that might have furnished a ground for reducing the recovery below the stipulated amount. It should have been business of the same character and description, and to be carried on in the same region. The defendants had agreed to employ the plaintiff in superintending a rail-road from Albany to Schenectady, and they cannot insist that he should, in order to relieve their pockets, take up the business of a farmer or a merchant. Nor could they require him to leave his home and place of residence, to engage in business of the same character with that in which he had been employed by the defendants.
I think we cannot, as between these parties, presume that the plaintiff might have been so employed and that he refused; and therefore the report, in my judgment, should be set aside. If [617]*617the defendants can prove that such employment was offered, it may reduce the amount otherwise recoverable; but if such proof shall not be given, the report, I think, should be for the salary at fifteen hundred dollars a year, and rent at one hundred and fifty dollars, and for a full year, deducting the amount which may have been paid towards the same.
Report set aside.
The rule of damages against the employer for the breach of a contract to perform mechanical work by the piece is different. (See Clark v. Marsiglia, 1 Denio, 317.)