1. He may treat the contract as rescinded, and

bring an action at once to recover without reference to

the contract, the reasonable value of the services al-

ready rendered, less any amount already paid him.

2. He mav treat the contract as in force but

broken, and bring an action at once to recover damages

for the probable loss which he has sustained by its vio-

lation — i. e., the damages based upon the reasonable

expectation of his finding other employment.

3. He mav treat the contract as in force but broken

and wait until the expiration of the term, and then re-

cover damages for the actual loss which he has sus-

tained by its violation.

He cannot pursue all of these remedies, and a recov-

ery upon one will bar a recovery upon another.

See Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285, Cas. Ag. 526;

Sutherland v. Wyer, 67 Me. 64, Mechem's Cas. Damages, 458; Olm-

§§219-221.] DUTIES OF PRINCIPAL TO AGENT. 117

stead v. Bach, 78 Md. 132, 27 Atl. Rep. 501, 44 Am. St. Rep. 273, Cas.

Damages, 464; Boland v. Glendale Quarry Co., 127 Mo. 520, 30 S. W.

Rep. 151, Cas. Damages, 468; Hamilton v. Love, 152 Ind. 641, 71 Am.

St. Rep. 384; James v. Allen Co., 44 Ohio St. 226, 58 Am. Rep. 821.

In Alabama and a few other States, there may be a recovery of

wages on the theory of constructive service. Liddell v. Chidester,

84 Ala. 508, 4 So. Rep. 426, 5 Am. St. Rep. 387, Cas. Ag. 535, Mechem's

Cases on Damages, 460. In Minnesota a peculiar ruling is made

permitting much the same result as that reached in Alabama, though

upon a different theory. McMullan v. Dickinson Co., 60 Minn. 156,

51 Am. St. Rep. 511, 62 N. W. Rep. 120, Mechem's Cas. on Damages,

462. But the weight of authority is opposed to these views, and

permits a recovery of damages for breach of contract only. See

cases cited above.

В§ 220. Agent's duty to mitigate his damage.

— It is the duty of an agent wrongfully discharged be-

fore the expiration of his term, to use reasonable dili-

gence to obtain other employment of a like kind, and

thus reduce his damage as far as possible; but he is

not obliged to take employment of a different kind, or

go to a different place to find it.

See Harrington v. Gies, 45 Mich. 374; Strauss v. Meertief, 64 Ala.

299, 38 Am. Rep. 8; Sutherland V. Wyer, 67 Me. 64, Cas. Damages

458.

The burden of proof is upon the employer to show

that the agent might have found such other employ-

ment and failed to do so.

See Farrell v. School District, 98 Mich. 43; Allen v. Whitlark, 99

Mich. 492.

§221. "Where authority rightfully revoked —

Where, though employed for a definite term, the agent's

authority has been rightfully revoked before the expira-

tion of that term, as because of his misconduct or

breach of duty, it is held, in many cases, that he cannot

recover anything. Where his misconduct was treach-

erous, wilful or malicious, this holding is doubtl

right, but the true rule in other casi-s seems to be that

118 DUTIES OF PRINCIPAL TO AGENT. [§§ 221-223.

if, notwithstanding his misconduct, his services have

been of some substantial value to the principal, over

aud above the damage sustained by the principal from

his misconduct, the agent may recover such excess.

See Wadsworth v. Adams, 138 U. S. 380, 34 L. ed. 984; Sea v.

Carpenter, 16 Ohio 412; Vennum v. Gregory, 21 Iowa 326; Branuan

v. Strauss, 75 111. 234; Sumner v. Reicheniker, 9 Kan. 320. See

also Massey v. Taylor, 5 Coldw. (Tenn.) 447; Lawrence r. Gullifer,

38 Me. 532; Carroll v. Welch, 26 Tex. 147.

В§ 222. Where authority terminated by operation

of law. — Where the authority is terminated by opera-

tion of law — as by reason of the death or insanity of

one of the parties — no damages for the revocation can

ordinarily be recovered.

See Griggs v. Swift, 82 Ga. 392, 14 Am. St. Rep. 176, 5 L. R. A.

405, Cas. Ag. 537. But compare Hughes v. Gross, 166 Mass. 61, 55

Am. St. Rep. 375.

§ 223. Where agent abandons his undertaking. —

— Where the agent abandons his undertaking, and the

employment was at will, merely, he may recover for the

services already rendered. If, however, having agreed

to serve for a definite time, the agent abandons his un-

dertaking without cause, before the expiration of that

time, it is held, in many cases, that he can recover

nothing. But a more liberal rule prevails in many

States, which enables the agent, in such cases, to recover

the reasonable value of the services rendered, not ex-

ceeding the contract price, after deducting damages for

whatever loss the principal may have sustained by

reason of the abandonment.

See Stark v. Parker, 2 Pick. 267, 13 Am. Dec. 425, Mechem'a Cas.

Damages, 470; Diefenback v. Stark, 56 Wis. 462, 43 Am. Rep. 719;

Timberlake v. Thayer, 71 Miss. 279, 24 L. R. A. 231 and note; Brit-

ton v. Turner, 6 N. H. 481, 26 Am. Dec. 713, Mechem's Cas. Dam-

ages, 473; Allen v. McKibbin, 5 Mich. 449; McClay v. Hedge, 18

§§ 223 226.] DUTIES OF PRINCIPAL TO AGENT. 119