In respect of any other claim, his sole remedy is to sue for the injury suffered as the result of the breach of the contract; and the measure of his recovery in such an action is prima facie the amount stipulated to be paid for the services, subject to reduction in such sum as he received or with reasonable diligence could have earned from other remunerative employment after the discharge, and the burden rests on the employer to show the amount received or which might have been received with reasonable diligence. Ditzler Dry Goods Co. v. Sanders, 44 Okla. 678, 146 P. 17; Sharpless Separator Co. v. Gray, 62 Okla. 73, 161 P. 1074. On the breach of the contract, the remedy in respect of the unpaid weekly amounts which had accrued was an action to recover for them as salary or compensation under the contract.
1941); Consolidated Cut Stone Co. et al v. Seidenbach et al, 181 Okla. 578, 75 P.2d 442 syl. 3 (Okla. 1938); Sackett v. Rose, 55 Okla. 398, 154 P. 1177, 1181 (Okla. 1916); Ditzler Dry Goods Co. v. Sanders, 44 Okla. 678, 146 P. 17, 19 (Okla. 1915). "Conjecture is an unjust and unsound basis for a verdict, and speculative, remote, or contingent damages cannot form the basis of a lawful judgment.
23 O.S. 1981 § 21[ 23-21].Ditzler Dry Goods Co. v. Sanders, 44 Okla. 678, 146 P. 17 (1915). In his suit, Hall sought to recover the fruits of the contract, in the form of those renewal premiums he reasonably expected to receive in the future.
The rule is well settled that on the absolute refusal by one party to a contract to carry out the contract as obligated to do, such conduct in itself constitutes such a breach as to give an immediate right of action, and where such party unqualifiedly renounces his intention of further performance on his part, a cause of action at once arises in favor of the party entitled to performance, and he is entitled to recover such damages as will compensate him for the detriment caused by such breach. See Elliott on Contracts, vol. 3, sec. 2027; Ditzle Dry Goods Company v. Sanders, 44 Okla. 678, 146 P. 17; Roger v. Oklahoma City, 45 Okla. 269, 145 P. 357; Hollweg v. Schafer Brokerage Company, 197 Fed. 689; Canada, Atlantic Plant S. S. Company v. Flanders, 165 Fed. 321. The rule is, a party to a contract has but one cause of action for its breach, which is indivisible, and in an action thereon he is entitled to recover whatever damages he can prove within the rules of evidence.
But in order for misconduct of counsel in argument to the jury to effect a reversal of the judgment, it must appear that substantial prejudice resulted therefrom, and that the jury were influenced thereby to the material detriment of the party complaining. Oklahoma Ry. Co. v. Christenson, 47 Okla. 132, 148 P. 94; Ditzler Dry Goods Co. v. Sanders, 44 Okla. 678, 146 P. 17; Hooker et al. v. Wilson, 69 Oklahoma, 169 P. 1097. A close analysis of the pleadings and the evidence discloses very few conflicts between the testimony of any of the witnesses.
The defendant was entitled to introduce evidence under the general denial controverting any fact which the plaintiff was bound to prove in order to establish his cause of action. Robinson et al. v. Peru Plow Wheel Co., 1 Okla. 140, 31 P. 988; Tishomingo Electric Light Power Co. v. Gullett, 52 Okla. 180, 152 P. 849. Ditzler Dry Goods Co. v. Sanders, 44 Okla. 678, 146 P. 17, was an action for alleged wrongful discharge of a servant, and it was there held that the defense of a general denial put in issue the contract of employment and the question of a breach thereof. In Bey v. Reid, 31 Kan. 113, 1 P. 264, plaintiff and defendant had entered into a written contract whereby plaintiff employed defendant to serve as a clerk in the store or stores of plaintiff for a period of one year.
Under these rules of law, is the petition fatally defective? It is contended by defendants, and borne out by the weight of authority, that an action will not lie for "constructive services" for the discharge of an employe employed for a definite term before the end of the term, but that the employe's remedy is by action for damages for breach of contract of employment. In Ditzler Dry Goods Co. v. Sanders, 44 Okla. 678, 146 P. 17, it is said by Commissioner Brewer, delivering the opinion of the court: "It was for a long time held in the English courts that, if a servant was wrongfully discharged, he might treat the contract as still existing, and sue for his wages as they became due. This gave rise to the doctrine of 'constructive services,' and in such cases the servant sued on the contract for wages for the time he was not allowed to serve This rule was followed in the earlier cases in this country, as is said in 26 Cyc, 999, and is still followed in some of the states; but the doctrine has since been repudiated by the courts of England and the majority of the courts in this country.