Billetter v. Posell

94 Cal.App.2d 858, 211 P.2d 621 (1949).

Dawson, p. 53


Facts: The defendants signed the plaintiff to a one year contract.  The defendants breached and offered the plaintiff a different job at lower pay.  The plaintiff declined and quit.  The plaintiff sued for the salary and unpaid portion of a bonus she would have received during the balance of the contract.  The plaintiff prevailed in the trial court and the defendant appealed.


Issue: What damages should have been mitigated by the plaintiff?


Rule: The plaintiff must accept employment that is substantially similar to the employment offered by the breaching defendant.  The plaintiff need not seek or accept employment that is not substantially similar or comparable.  The plaintiff is also not required to mitigate damages by doing the same work at lower pay.


Analysis: The court rules that the defendants are entitled to neither the plaintiff’s unemployment compensation nor the sum of the lower salary they offered the plaintiff.


Conclusion: The court upheld the verdict of the trial court for the plaintiff.




1.     In this factual pattern, the plaintiff is not required to mitigate damages by accepting work that is not substantially similar to the work she had been contracted to perform.  The plaintiff has the right to decline the work as a sales clerk and recover the $300 unpaid portion of the bonus plus the $75 per week for the remainder of the contract.

2.     The plaintiff is not obligated to accept the position because it is in a different field than the employment she was contracted to perform.  If she rejects this position, she can still recover damages for her previous employer’s breach of contract.

3.     If the plaintiff accepts the position and keeps it for the duration of the original contract, she mitigates the damages from her previous employer’s breach of contract and thus cannot collect damages for that breach.  This is consistent with the principle that we compensate the aggrieved party such that they are in as good a position as they would be had the contract been performed, but no better.

4.     I believe the plaintiff is not obligated to take this job, because by virtue of its distance from her home it is not substantially similar or comparable to the employment of which she was deprived.

5.     This is an offer the plaintiff is obligated to take to mitigate damages.  The defendants would still be liable for the unpaid portion of the Christmas bonus.


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