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.
And, in such instances, the proper measure of damages is the amount stipulated by contract to be paid for services, such amount to be mitigated to the extent of any sum obtained from employment of a like nature. Sharpless Separator Co. v. Gray, 62 Okla. 73, 161 P. 1074; Farmers' Co-Op. Ass'n v. Shaw, 171 Okla. 358, 42 P.2d 887; Ray v. Board of Education of Pond Creek, 194 Okla. 472, 153 P.2d 233. Plaintiff pleaded that she had mitigated her damages and made no claim for the amount received from her other employment. Briefly, then, this situation may be summed up in the following manner: Plaintiff introduced evidence supporting the allegations of her petition.
" For other cases holding to the same effect see: Federal Reserve Bank of Dallas v. Upton, 34 N.M. 509, 285 P. 494; McMichael v. Price, 177 Okla. 186, 58 P.2d 549; Sharpless Separator Co. v. Gray, 62 Okla. 73, 161 P. 1074; Rich v. Daily Creamery Co., 296 Mich. 270, 296 N.W. 253, 134 A.L.R. 232, and annotation thereto; Amarillo Oil Co. v. Ranch Creek Oil Gas Co., Tex.Civ.App., 271 S.W. 145; McDaniel Bros. v. Wilson, Tex.Civ.App., 70 S.W.2d 618; Moore v. Shell Oil Co., 139 Or. 72, 6 P.2d 216; DeWiner v. Nelson, 54 Idaho 560, 33 P.2d 356. In the case at bar, appellant did not plead in mitigation of damages nor did he offer any evidence tending to show by what amount, if any, appellee, by reasonable effort, could have reduced his damages by leasing the pasture for the unexpired period of the lease.
Plaintiff seeks to deduct an item of $25 for the discount of school warrants paid under his subsequent employment. We think the matter of discounting the warrants was discretionary and personal and the item should be disallowed. Sharpless Separator Co. v. Gray, 62 Okla. 73, 161 P. 1074; School District No. 60, etc., v. Crabtree, 146 Okla. 197, 294 P. 171. The judgment of the trial court, being for plaintiff in the amount of $250, is accordingly reversed, with directions to enter judgment in favor of plaintiff and against defendant in the amount of $875, cost and interest from date of the judgment to be rendered.
It is the duty of the discharged servant to make the best use of his time and to mitigate his damages by seeking other employment, but the burden rests upon the employer to show by a preponderance of the evidence that the servant might, with reasonable diligence, have obtained other remunerative employment of a like character after his discharge. Sharpless Separator Co. v. Gray, 62 Okla. 73, 161 P. 1074. This duty to seek other employment cannot arise until after the discharge.
This issue was not raised by the pleadings of defendant and defendant did not offer evidence tending to show by what amount, if any, plaintiff might have reduced the damages resulting from the breach of contract. See Sharpless Separator Company v. Gray, 62 Okla. 73, 161 P. 1074; Federal Reserve Bank v. Upton (N.M.) 285 P. 494. The trial court did not err in refusing said instruction.
"Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matters essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law." To the same effect are Hogan et al. v. Bailey, 27 Okla. 15, 110 P. 890, and Sharpless Separator Co. v. Gray, 62 Okla. 72, 161 P. 1074. We have examined the petition in the present case. It states a cause of action.
This court is in accord with the general rule that a discharged servant cannot lie by unemployed for the remainder of the term and then claim full compensation. He is bound to make the best use of his time and seek other employment, and the master may show in mitigation of damages that the servant has received compensation during the unexpired term of the contract from other employment, or that he might have received compensation in other similar employment by using proper effort. In the case of Sharpless Separator Co. et al. v. Gray, 62 Okla. 73, 161 P. 1074, this court announced the rule in the following language: "The measure of damages for the breach of a contract of employment by the employer is prima facie the sum stipulated to be paid for the services; and the burden of reducing the damages by proof that the servant has, or might with reasonable diligence have, obtained other remunerative employment of a like character after his discharge, rests on the employer."
Conclusions of a pleader are not good when the sufficiency of the pleading in which they are contained is challenged by demurrer before trial. They may be sufficient when the sufficiency of the pleading is first questioned by objection to the introduction of evidence after a trial has commenced. Sharpless Separator Co. v. Gray, 62 Okla. 73, 161 P. 1074, Wilson v. Eulberg, 51 Okla. 316, 151 P. 1067. They are generally held sufficient when the objection to a pleading is first made after judgment on motion for new trial or on appeal. Hall v. Bruner et al., 36 Okla. 474, 127 P. 255; Williamson et al. v. Oliphant, 85 Okla. 3, 204 P. 301. Manifestly the suggestion that conclusions in a pleading are insufficient to support a judgment when collaterally attacked is unsound.
It is contended by the defendants that the trial court erred in the assessment of the amount of the recovery. The measure of plaintiff's recovery is controlled by the rule stated in Sharpless Separator Co. v. Gray, 62 Okla. 73, 161 P. 1074, to be as follows: "The measure of plaintiff's recovery in an action for breach of a contract for employment is prima facie the sum stipulated to be paid by the employer for the services, but it is subject to reduction in such sums as the plaintiff has earned or might with reasonable diligence have earned during the period by securing other employment of a similar character, but the plaintiff is neither required to allege nor prove that he has been unable to secure other employment.