A variation on Rockingham
bridge companyís agreement with
Compare to Parker.† Shirley MacLaine is not expansive.† She can only do one thing at a time.† The bridge company can probably build one, two, or ten bridges at the same time. †Its limitation on how many bridges it can build is probably how much work it can get.
if Luten could have performed its contract with
On the other hand, if Shirley MacLaine goes and makes another movie during that 14 weeks in question, the earnings from that movie mitigate her losses from the breach of contract over ďBloomer GirlĒ.
Say youíre a solo-practioning lawyer.† If you have lots of time and not many clients, itís unlikely that picking up another client and making money off them will mitigate damages from another client who breaches their contract with you.† If, on the other hand, you get really busy, getting another client could mitigate.
Say you have a contract with X, and X repudiates his promise, and you tell X that youíre going to sue.† Now say that X wants to offer you another deal.† Is it your duty to take the offer?† Is X an untrustworthy contract-breaker?† Sometimes you can clearly ignore the second offer from the contract-breaker.
The Practice Exam Question
A party aggrieved by a breach has a duty to mitigate damages that can be recovered without undue trouble.† Jobs available to you do not mitigate unless they are comparable.† One way courts look at it is: if a job is either different or inferior in kind to the contract job, you donít have to take it.
lot of jobs are going to mitigate in these circumstances.† Is
On the other hand, you donít need a jury to tell you that driving an 18-wheeler is inferior to working for a law firm.† You could get that on summary judgment.
How would you argue Graduateís case to a jury?† How is a jury going to react to your client?† How would a jury react to Shirley MacLaine who wants $750,000 for sitting around?
Graduate asks the jury to pay her $110,000 or a significant part of that when she could have mitigated the damages to a great degree.† How sympathetic will the jury be to her?
difference in pay between the two jobs is not a factor that makes it inferior
in kind because she can recover the difference between the two salaries.† If the salary difference was a lot bigger,
that fact might be seen as evidence that
are some superior aspects to
This is a jury question.† You need to think about arguments you would make to a jury.
deal: DCH offered a one year contract, and it never said that
The question weíre discussing usually doesnít arise with most employees and most employers.
Was the law clerk job different in kind?† Yes, because itís a temporary job.† The law firm job is, in all likelihood, a lifetime job.† That doesnít matter, because a job taken mitigates.
When the broken contract was for full-time employment, anything you do for money during the contractís time period will mitigate your damages.
In order for Graduate to only receive nominal damages, you would have to show that there were other firms in the same place at the same time that werenít inferior or different in kind that would have paid her $110,000 or more.
DCH might go around to its competitor firms and ask: ďWould you have hired this person at the time we repudiated?Ē† This would go toward proving that Graduate didnít do a decent job search.
We know that Graduate can recover no more than $70,000.
If the plaintiff rejects a comparable job, thatís her right, but she gives up the loss of wages she could have mitigated.
∑ Keep your reader in mind.
∑ Logically order your points.
∑ Do it in a way youíre comfortable with.
∑ Pretend youíre a lawyer.
Questions on Billetter v. Posell
1. What if the plaintiff was offered a position as a sales clerk?† Thatís pretty different in kind.
2. What if the plaintiff was offered a position as a waitress? †Thatís very different in kind.
3. If she takes the position, then the money she makes mitigates the damages from the breach.
4. We donít ask the aggrieved party to move to another town to mitigate damages, in so far as this involves a change in social status.
What if the employee breaks the employment contract?† The speech therapist breaches her promise to work for the school district.† What will it cost to reasonably replace this employee?† How replaceable are you?
In this problem, the school district had to be replaced with someone who had more teaching experience who they therefore had to pay more.† It turns out that the speech therapist owes the school district the $3,000 difference.† The school district didnít want a more experienced person.† Thatís not a benefit to them.
C.f. 332 N.W.2d 774.