I concur in the decision, and in the opinion except in the following statement of law: "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 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 *Page 427 and the end of the year, found and accepted other employment, or that by proper diligence he could have found other employment. . . . The plaintiff was not bound to offer any evidence upon that question until it was opened by the defendant."
This is in conflict with the doctrine of Perry v. SimpsonWaterproof Mfg. Co., 37 Conn. 520, 539, a case of assumpsit for breach of a contract by the defendants, employers of the plaintiff. We then said in relation to the question of damages: "We are clearly of the opinion that the plaintiff is not, necessarily, and as matter of law, entitled to recover the full price for the full term of the contract. The defendants violated their contract, and the plaintiff suffered damage. The injury sustained is the measure of damages. That is ascertained by considering how much he could have earned at the contract price during the balance of the term, taking into consideration the sum payable weekly, and also the value of the stock stipulated for in the contract. From this should be deducted the value of the plaintiff's time to himself. . . . Of course the plaintiff would not be justified in remaining idle for the whole time. He will not be permitted to increase the damage to himself unnecessarily, at the expense of the defendants. He is bound to use ordinary diligence. The defendants are only liable for proximate damages. Such damages as result from his own negligence, or want of proper diligence, are too remote, and not chargeable to the defendants. Upon the same principle he has no right to insist upon employment in the same business or at the same price. If that is not to be had, he is bound to engage in other business, and, if need be, at a less price."
We thus held that it is the duty of the discharged employee to lessen his damage by seeking other employment. And yet the opinion holds that it is the duty *Page 428 of the employer to negative by proof the employee's failure of duty to seek employment. If the rule be as stated in Perry v. Simpson Waterproof Mfg. Co., it is difficult to resist the thought that such a conclusion is opposed to sound logic.
It also appears from Perry v. Simpson WaterproofMfg. Co. that the measure of damages is the contract price, less what the employee should have earned by the exercise of reasonable diligence. When it is said in the opinion that prima facie the measure of damage is the balance of the contract price, we in effect overturn a rule of law, long established and well understood. This means that, in the first instance, the burden of proving that the employee could by the exercise of reasonable diligence have found employment, and thus lessened his damage, is placed upon the defendant; and thus we place upon the defendant the burden of proving an essential part of the plaintiff's cause of action. The authority cited in the opinion, i. e. Maynard v.Royal Worcester Corset Co., 200 Mass. 1, 85 N.E. 877, holds that the burden of proving this in the case is on the defendant.
That many courts have been led into this illogical and unsound position is no reason why we should follow in their error. While the immediate question has not been before the court, it is necessarily involved in and logically controlled by the decision in Perry v. SimpsonWaterproof Mfg. Co., 37 Conn. 520. Moreover, the doctrine that the employee, rather than the employer, should prove the ability of the employee to get work is sound in principle. The facts relating to the ability of the employee to get work are easily within his control. He knows, or may know, if he has done his duty. The employer may not know, though he be ever so diligent. After the employee leaves his service, he may go to some place quite unknown to his former employer. The employer *Page 429 cannot keep track of the whereabouts of his discharged employees and officials. Consider the burden this would place upon the employer of say twenty thousand. In practice it would result in most cases in the inability of the employer making such proof. He could not support the burden of proof. Hence the discharged employee would recover the face of his contract, and the rule of law limiting his recovery to his actual damage and compelling him to deduct from what his contract would have given him what he could have earned would be rendered nugatory. Such a result would be unjust to the employer and leave our law on this subject contradictory and illogical. It would violate two rules of law: The burden is on the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. 4 Wigmore on Evidence, § 2486; 1 Greenleaf on Evidence, § 74. The burden is on the party who presumably has peculiar knowledge of a fact. 4 Wigmore on Evidence, § 2486.