delivered the opinion of the Court:
This was an action brought by Little against Fuller to recover damages for breach of a contract alleged to have been made between the parties by which the plaintiff agreed to pay the defendant a year’s salary at the rate of $60 per week in consideration of the defendants services as stage manager at a place of amusement called Wood’s Museum, in the city of Chicago. The defendant sold the museum on the 1st of August, 1869, and the question in this case was, whether he had previously engaged the plaintiff for the season, commencing on the 1st of August and terminating on the 1st of the next July. The jury found for the plaintiff", assessing his damages at $2800.
The first error assigned is, that the court admitted illegal evidence. The plaintiff was acting as stage manager for the defendant at the time of the sale, and the court permitted him to show Avhat steps he had taken to carry forward the business during the next year. If these acts of ihe plaintiff Avere done under the direction or Avith the knowledge or apju-oval of the defendant, they Avere very material in aiding the jury to pass upon the question at issue. They related to the correspondence of the plaintiff and adArertisements by him for the purpose of forming a dramatic company for the next year, and if, in all this, he Avas acting under the direction of the defendant, the presumption Avould be reasonable that an engagement had been made betAveen them. The plaintiff' testified positively to his OAvn engagement, and that he acted, in making his arrangements, for the coming season, under the express directions of the defendant. The court properly admitted the evidence, and after the defendant had contradicted, on the stand, the statements of the plaintiff, the court instructed the jury that the former was not to be prejudiced by the acts of the plaintiff' in making engagements Avith authors or theatrical persons unless the defendant had authorized or ratified his acts. This instruction placed this evidence in its proper light before the jury, and the appellant can not justly complain of the ruling of the court.
It is next urged that the court erred in giving the second instruction for the plaintiff, which Avas as folloAvs:
“The jury are further instructed that if they believe, from the evidence, that the defendant entered into a contract Avith the plaintiff, as stated in the declaration, and committed a wrongful breach of such contract with the plaintiff, whereby the plaintiff has suffered loss, the rule of damages in this case, and the amount the plaintiff is entitled to recover, is the amount of salary which the defendant agreed to pay the plaintiff, if any such agreement or amount is shown by the evidence, for the entire time for which he hired him, less the amount of the net earnings, if any shown by the evidence, made by the plaintiff during the time for which he was so hired.”
The objection taken to this instruction is in the use of the phrase “net earnings.” That this phrase in such connection would be objectionable in some cases, is very clear. Whether it worked the defendant any injury in this instance depends upon its application to the evidence, and the mode in which the jury must necessarily have understood it. The only testimony as to the earnings of the defendant was the following statement by himself:
“After the 1st of August I was around town for some time, not knowing what to do scarcely. Finally I got a company together; some gentlemen put in some money, and we went out traveling ; we were out some two weeks, when the parties became dissatisfied who had the capital and left.
“I borrowed money to carry on the company; when I got back I was some hundreds of dollars in debt; I Avas gone about four months, I should judge ; all my jewelry Avas gone —my Avatch and' chain, and my wife’s Avatch and chain and jewelry.
“I Avas not able to get into a paying position that season. It Avould be impossible for meto tell how much I earned through the year; I earned nothing over and above iny expenses; I put my name on the books of Ararious agencies and applied for engagements; accepted two engagements, such as they Avere.”
In reference to this evidence, so far as it relates to the pecuniary success of the plaintiff while traveling in the country as the head of a theatrical company, the use of the phrase “net earnings” was not improper. The jury would necessarily understand it as referring to the receipts above the expenditures, the excess being to the plaintiff what his • salary would have been under the alleged engagement with the plaintiff. It is true, the plaintiffs testimony implies that he earned, through at.least a part of the year, his personal expenses, and if the evidence had shown what these expenses were, they would have been a legitimate subject of deduction from the salary alleged to have been lost. But the rule in actions of this character is, that the burden of proof is on the defendant to show the plaintiff has either been actually engaged in other profitable employment or that such employment had been offered to him and rejected. 2 Greenlf. Ev. sec. 261 a, and cases cited in note. The evidence in this case furnished no data upon which the jury could- basé an estimate of the plaintiffs earnings. The statement that for a part of the year he made his personal expenses, with no proof whatever as to their amount, left the jury so utterly in the dark that any attempt on their part to estimate such expenses would have been a mere blind conjecture. It can only be said that, on this point, the defendant wholly failed to make out his defense, and he can not call upon us to reverse a judgment on the ground that the instruction was inaccurate in confining deductions to net earnings when there was no evidence upon which the jury could properly have made a deduction for earnings of any sort.
It is urged that the verdict was against the evidence and that a new trial should have been granted upon the affidavit of newly discovered evidence. The evidence was voluminous and contradictory, and presents a case in which the court cannot interfere with the verdict because unsustained by the testimony. The newly discovered testimony, as set forth in the-affidavits, was simply cumulative and altogether indecisive.
Judgment affirmed.
At the September term, 1872, of the court, appellant filed a petition for a rehearing, but it was overruled and the following opinion was filed:
Per Curiam :A petition for rehearing has been presented in this case, and it is asked chiefly on the ground that the suit was commenced before the expiration of the year after making the contract, and the damages were assessed for the entire year. It is sufficient to say that this point was not made upon the argument, and there was nothing said to direct the attention of the court to the date when the suit was commenced. After a case has been fully argued and correctly decided upon the questions made by counsel, we can not grant a rehearing for the sake of allowing new questions to be argued, unless it is necessary to do so in order to prevent great injustice. In the present case, the question, now for the first time raised, goes merely to the reduction of damages, and it is evident, from the record, was not raised in the court below.
Rehearing refused.