dissenting, July 16, 1913:
With great respect for the majority opinion I find myself compelled to dissent from the disposition of the case as raised by the second assignment of error. I fully *88concur with the majority opinion in so far as it sustains the first assignment and reverses the judgment.
Of course I recognize the doctrine of King v. Steiren, 44 Pa. 99, cited in the majority opinion. That case is cited by the late Justice Clark in Emery v. Steckel, 126 Pa. 171, and Judge Clark, Avith his usual industry and thoroughness, referred in his opinion to numerous other cases to the same effect. However, all of these cases have reference to the principle that "when a servant has been discharged before the expiration of his term of employment, without sufficient excuse, he is prima facie entitled to recover to the extent of his wages for the whole term.”
In my opinion, it is a mistake to apply the doctrine there found to the present case and to hold that the second assignment of error cannot be sustained. In other words, I consider it a mistake to hold that the plaintiff can recover the full amount of his alleged contract with defendant to lodge, board and tutor her son for the first half of the school year, to wit, from October 1, 1908, to February 1, 1909, $325, and interest thereon, as if the defendant had actually furnished the boarding, lodging and instruction as averred in his contract.
I think there is a marked distinction between his case and those where a mechanic, superintendent, laborer, or other person is employed for a fixed term and is then discharged, through no fault of his, before the end of the term.
It is to be presumed that the present plaintiff carries on his school as a business enterprise and that he makes, or expects to make, a profit on a contract to lodge, board and instruct a young man in his school. I think this furnishes a strong reason why King v. Steiren, 44 Pa. 99, and kindred cases, do not rule the present case. If it is conceded that the plaintiff was warranted in assuming that he had a contract with the defendant to lodge, board and tutor her son for the school year beginning October 1, 1908, and that the defendant was to pay the plaintiff on October 1, 1908, the sum of $325, yet she refused to comply with said contract and is said to be guilty of a breach of it ip *89that her son presented himself at the plaintiff’s school on October 1, 1908, and only remained perhaps an hour and then left and never returned to the school. All that plaintiff pretends to have actually furnished, under his contract with defendant, was the reservation of the right to defendant’s son to occupy a room and bed with another boy from October 1, 1908, to February 1, 1909. The defendant neither furnished boarding nor instruction to the boy and if he is permitted to recover the full contract price, he will surely realize a profit considerably in excess of what he would have made if he had furnished all that the contract called for.
Instead of declaring for the whole contract price, as he did, I think the plaintiff should have set out the contract and its breach and alleged the damages he sustained by reason of the breach, and then if he sustained his contract, and proved actual damages to the satisfaction of the jury, he might have recovered for his actual loss caused by the refusal of the defendant to comply with her contract. In other words, on a proper declaration, the plaintiff would be, on proving the necessary facts, only entitled to recover for the loss of direct profits which he could have realized by furnishing the board, lodging and tuition which he alleges he was ready to furnish upon his contract with the defendant. In view of the fact that the plaintiff was engaged in a business for profit, I think justice can only be done by trying this case on the theory of the following authorities: Dock v. Pratt, 30 Pa. Superior Ct. 598; Emig v. Spatz, 155 Pa. 642; Nixon v. Myers, 141 Pa. 477; Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45.
I would sustain the second assignment of error and hold that on his present declaration the plaintiff is not entitled to recover at all.
Henderson, J., concurs in this dissent,