If the plaintiff was employed for a year at a salary of $2,500, as he claims, then his discharge by the defendant before the end of the year was a breach of its contract.
It appears that prior to the writing of the letters which passed between the parties, they had met and talked over the defendant's requirements and the plaintiff's experience and qualifications. The defendant then offered the plaintiff employment as mechanic and *Page 424 supervisor of its ball department at a salary of $2,500 for the first year. The plaintiff requested time to consider the proposition. The letters then passed between the parties, and pursuant thereto the plaintiff came on from his home in Pennsylvania and entered upon the employment on February 1st, 1909. The defendant correctly says that any parol contract made prior to February 1st for a year's employment to begin on that date would be within the statute of frauds and that proof of such contract would be insufficient to establish the contract alleged. But what occurred before the letters were written is competent to show the circumstances under which they were written, as an aid to their interpretation.
The plaintiff's letter states the terms of the original proposition and manifestly was intended as an acceptance of it. That the defendant so understood it appears from its reply. It says therein that it is pleased to note that the plaintiff will be with it on the first of February, upon the terms and conditions which had been gone into verbally at the time of the interview, and that his salary will be $2,500 for the first year. Had the letter ended here, it would have been, in view of the circumstances under which it was written, a sufficient memorandum of a contract for a year to justify the court in its finding of such a contract. Maynard v. Royal Worcester CorsetCo., 200 Mass. 1, 6, 85 N.E. 877. The defendant does not seriously contend that it would not, but says that it appears by the letters that the plaintiff asked for a contract for a year, and that the defendant refused to make such a contract. Is this the proper construction of the language of these letters? The plaintiff's request was that "a contract for the first year as above" be sent him, showing that it was the written evidence of the contract which his acceptance of the defendant's proposition had created which he requested. The terms *Page 425 were agreed upon. He asked for a written contract as evidence of those terms. Apparently the defendant so understood it. It declined to send such a contract, not because there was no agreement for a year's service, but because it did not give contracts to its employees, and chose not to depart in this case from an old established rule. It said: "There isn't a person in our employ, including the three officers, who has a contract of any kind with this company." It cannot be considered that this statement was correct unless the reference was to written contracts. Undoubtedly the writer meant that none of its employees, including the officers, had written contracts of employment. The language is that of a person excusing himself for refusing to send a writing embodying an agreement already made for a year's services, rather than that of one refusing to enter into such an agreement. There was no error in the court's holding that there was a contract for a year, of which the defendant's letter was a sufficient memorandum to satisfy the statute.
The foregoing renders it unnecessary to consider the defendant's request that paragraphs eleven and twelve of the finding be stricken out as having been found without evidence to support them. The plaintiff having produced a sufficient memorandum in writing of the contract, the finding that the contract was renewed orally on the morning of February 1st has no significance, and the defendant is not harmed by the finding.
Nor is the defendant harmed by the finding (also complained of as having been found without evidence), that from the time of his discharge until the end of the year the plaintiff was unable to obtain employment. The plaintiff had been paid in full to the time of his discharge. The defendant having broken the contract, the plaintiff, prima facie, was entitled to the balance of the salary stipulated to be paid. For this he could *Page 426 have brought suit at once. He waited until the year had expired. Had he brought suit at once, the defendant would have been permitted to show, in mitigation of damages, that the plaintiff by the use of due diligence could find other employment. In the present case, in like manner, it was permissible for the defendant to show either that the plaintiff had, between his discharge and the end of the year, found and accepted other employment, or that by proper diligence he could have found other employment. 1 Sedgwick on Damages (9th Ed.) § 227; 3 Joyce on Damages, § 2026; 2 Greenleaf on Evidence, § 261a; Howard v. Daly, 61 N.Y. 362,371; Maynard v. Royal Worcester Corset Co.,200 Mass. 1, 85 N.E. 877. The plaintiff was not bound to offer any evidence upon that question until it was opened by the defendant. The latter having offered no evidence upon that question, it was not harmed by the finding complained of, because, without such finding, the plaintiff was entitled to the balance of his salary for the year.
There is no error.
In this opinion HALL, C. J., PRENTICE and RORABACK, Js., concurred.