Opinion
May, 1915.
Max Miller (Joseph I. Green, of counsel), for appellant.
Glueck De Groot (Sidney Lowenthal, Edmund Glueck and Mortimer DeGroot, of counsel), for respondent.
Plaintiff having been employed by defendant under a contract for a year, and entered upon the performance thereof, alleged that before the end of the year defendant wrongfully discharged him and barred and prevented his earning the compensation agreed upon, and that thereby he was damaged in the sum of at least $2,000 and demanded judgment for said sum, etc. The complaint was dismissed on the ground, as appears by the opinion of the court below, that it did not allege a readiness and willingness of plaintiff to perform at the time "his services were refused," and at the time when "the alleged wrongful discharge took place."
Where there is a mutual contract to do certain things at a future date, in a suit for a breach thereof, a tender, or at least a readiness and willingness to perform by plaintiff at the time is necessary ( Nelson v. Plimpton, 55 N.Y. 480), because until tender there is no breach; but where before the time fixed one party notifies the other that he will not perform, then an action may be brought at once, and neither a tender nor allegation of a readiness and willingness to perform is required. In Howard v. Daly, 61 N.Y. 362, it was held that in a contract to employ at a future date on a rejection before the date plaintiff may sue for damages, without alleging a readiness and willingness to perform at the time fixed and in Allen v. Glen Creamery Co., 101 A.D. 306, it was held that in an action for wrongful discharge no allegation of readiness and willingness to perform after the discharge is necessary. The principle of these cases is that where the act charged is in itself a breach, nothing more is necessary. The distinction between the case of a plaintiff suing for a failure to employ at a future date and cases of a wrongful anticipatory notice of intention not to perform and of a wrongful discharge before the expiration of the contract is that in the former there is no breach until a tender, or, at least, readiness and willingness to perform, while in the latter the wrongful act is in and of itself a complete breach of the contract and anything in the way of justification is matter of defense. Linton v. Unexcelled Fire Works Co., 124 N.Y. 533.
GUY and BIJUR, JJ., concur.
Judgment reversed and new trial ordered, costs to appellant to abide event.