Roberts v. Crowley

7 S.E. 740, 81 Ga. 429

Opinion

Bleckley, Chief Justice.

The writings in evidence are very powerful in their bearing against the correctness of the verdict, so much so that the matter ought to be investigated by á new trial. There is nothing to contradict the testimony of Roberts that the paper purporting to be the contract for 1886 was handed to him by Crowley' with his name signed to it. Whether Crowley signed his own name, makes no difference. He could adopt the signature made by another, and so he' did, if he delivered the paper to Roberts as his contract. He testifies that the contract for that year was not in writing, except as contained in certain letters; and so he may think, but if he delivered to Roberts the instrument dated January 18th, with his name appended to it, it was' in writing, and he is mistaken. The instrument shows for itself, and it contains a stipulation by which May & Roberts could discharge Crowley as any time. And there is no doubt, according to all the evidence, that the contract for 1887 was the same as that for 1886, save as to the amount of compensation.

The testimonial given by May & Roberts to Crowley upon his discharge, on the 3d of March, 1887, is almost conclusive that both parties treated the engagement aa then at an end; for it recommends him for employment “ to all whom it may concern.” And he accepted employment in Memphis within a few days thereafter. He had sent away his family a shoi’t time before, and neither he nor they, so far as appears, have ever returned to Atlanta. When only two months of the year had elapsed, why should he want to be recommended for similar positions if he retained his position with May & Roberts ? Would he have asked for such a recommendation unless he was out of their employment? Would they have given it unless he had gone out willingly, or consistently with some conceded right in them to discharge him ? It may fairly be presumed that there was some human nature in May & Roberts, if not in Mr. Crowley himself. Giving both parties credit for an ordinary share in the usual modes of thinking and feeling, the letter of recommendation was not a mere vacation circular, nor was it the result of an unsatisfactory settlement of accounts. In the general course of things, it would follow no settlement which was not understood to be final and mutually satisfactory. Another writing was the letter of April 6th from May & Roberts to Crowley, in which they told him his discharge was accepted by him as final. That statement was made directly to him, and if untrue, called for contradiction; but there is no indication of a reply to it by letter or otherwise. The three writings to which we have called attention all harmonize exactly, and bear with united force against the verdict.

2. The cross-interrogatory excepted to was not fully answered. If the exception was taken in due time and manner, and section 3892 of the code complied with, it ought to have been allowed. Howard vs. Chamberlin, 64 Ga. 684. But the record does not inform us upon these points, and so we cannot say that it affirmatively appears that the court erred in' refusing to sustain the exception. Galceran vs. Noble, 66 Ga. 367.

3. If the plaintiff below was entitled to recover at all, the sum found by the jury was probably warranted by the evidence. In such an action, the measure of damages is the actual loss sustained by breach of the contract, and in estimating the amount, all the facts down to the time of trial may be considered. 2 Suth Dam. 471, et seq. and notes; 1 Sedg. on Meas. Dam. (7th edition,). 198 et seq. and notes; Wood’s Master and Servant, §125, and notes. It is the breach that gives the right of action, and the subsequent facts are not the cause of action, but legal light by which to follow the breach, to its pecuniary result. Everson vs. Powers, 89 N. Y. 527. Of course the discharged servant is bound to use due diligence to prevent the loss from being more than necessary ; and to that end must seek employment in similar business and derive such income from it as he reasonably can, which is to be deducted in fixing the damages to be recovered. The burden, however, of showing that he did obtain employment, or could have obtained it by dne diligence, is on the other party.

The court should have granted a new trial on the general grounds of the motion.

Judgment reversed.