See § 39-2-101, MCA (defining "employment" as "a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or a third person"); Flanigan v. Prudential Fed. Sav. & Loan Ass'n , 221 Mont. 419, 423-28, 720 P.2d 257, 259-62 (1986) ; Dare v. Mont. Petroleum Mktg. Co. , 212 Mont. 274, 279-83, 687 P.2d 1015, 1018-20 (1984) ; Gates v. Life of Mont. Ins. Co. , 196 Mont. 178, 184-85, 638 P.2d 1063, 1066-67 (1982). See also Miller v. Yellowstone Irr. Dist. , 91 Mont. 538, 540-42, 9 P.2d 795, 796-97 (1932) (pre-WDEA contract-based wrongful discharge claim). The common law duty to mitigate damages, from which the similar WDEA duty to mitigate damages derives, applies equally in contract and in tort.
Evankovich v. Howard Pierce, Inc., 91 Mont. 344, 8 P.2d 653 (1932); Myers v. Bender, 46 Mont. 497, 129 P. 330, (1913); McFarland v. Welch, 48 Mont. 196, 136 P. 394 (1913). [5] In Miller v. Yellowstone Irrigation District, 91 Mont. 538, 9 P.2d 795 (1935) involving a wrongful discharge under a contract of employment by the employer, this court said that the measure of damages for a breach of contract of employment by the employer is prima facie the sum stipulated to be paid for the services. It is well-settled that those damages which may fairly be supposed to be within the contemplation of the parties when they entered into the contract are recoverable.
The burden of pleading and proving matter in mitigation of damages falls upon the defendant and the defendant has not carried the burden in the instant case since he introduced no evidence on the subject. See Miller v. Yellowstone Irr. Dist., 91 Mont. 538, 9 P.2d 795; Garden City Floral Co., Inc. v. Hunt, 126 Mont. 537, 255 P.2d 252. For an annotation supporting this view and specific cases concerning the exact problem in the instant case, see 17 A.L.R.2d 963, 990. From the amount of damages of $5,079 which the jury awarded, it is clear that it was determined by taking 10 percent of the plaintiff's modified bid of $50,790.
Matter in mitigation of damages is a defense, R.C.M. 1947, [8] sec. 93-3411, and the burden of pleading and proving it rests with the defendant. Compare Miller v. Yellowstone Irr. Dist., 91 Mont. 538, 9 P.2d 795; McKim v. Beiseker, 56 Mont. 330, 185 P. 153. There was nothing in the record from which the jury could have [9] fixed a value on the salvage and in consequence the court did not err in giving the instruction on damages without any reference to the question of the salvage.
The doctrine is well stated in 2 C.J. 913, section 627: "In an action on a contract the authority of the agent to make the contract is admitted where the answer admits the making of a contract but avers that it was upon a different compensation from that alleged in the complaint, or where the answer admits the contract but alleged terms materially different from the contract set out in the complaint." This doctrine has been adopted by this court in Miller v. Yellowstone Irr. Dist., 91 Mont. 538, 9 P.2d 795, where the proof showed employment, though a different contract was claimed by defendant. (See, also, Hamil v. Baumhover, 110 Iowa, 369, 81 N.W. 600.) It is believed that the allegations and evidence advanced in this action come substantially within this rule and that it is decisive of the question.