#### CLAY CROOM v. GOLDSBORO LUMBER COMPANY, a Corporation.

(Filed 19 October, 1921.)

1. Married Women — Separate Property — ^Services—Statutes—Contracts— Actions.

Since the Martin Act, O. S., 2507 and 2513, the separate earnings of a married woman belong to her, and she may sue and recover them alone; and where the evidence tends only to establish the fact that the employer was to pay them each a certain and different amount for services, the husband may not recover the whole upon the theory that the amount he was to receive was augmented by what she was to receive for her separate services.

2. Verdict — Issues—Instructions.

The answer to an issue should be interpreted in the light of instructions thereon; and an affirmative answer to an issue as to plaintiff’s employment may not be increased by an amount claimed to be due by defendant to plaintiff’s wife, when the issue as to the amount found on a separate issue has been confined by an instruction to that due the plaintiff alone.

3. Contracts — Employer and Employee — Master and Servant — Services— Indefinite Agreements.

A contract for services to be rendered must be certain and definite as to -the nature and extent, the place where and the persons to whom it is to be rendered, and the compensation to be paid; and evidence that the plaintiff had been employed by the defendant to render certain services at a fixed price, to be increased at a future time, without more, is too indefinite as to the increase of price to be enforceable, there being no sufficient evidence of the coming together of the minds of the parties to make a binding contract upon the subject-matter.

4. Contracts — Employer and Employee — Master and Servant — Breach— Services — Measure of Damages.

Where the employer has, in breach of his contract-, discharged his employee before the time of his employment had expired, the damages recoverable by the latter, in his action, is the value of- the unexpired term as measured by the compensation agreed to have been paid him therefor, less whatever sum of money he may have since received for his services from other sources, or which he reasonably may have received, considering, in his favor, whatever expense he may have incurred in obtaining other employment, or arising from the breach of the contract sued on.

Appeal by plaintiff from Bond, J., at February Term, 1921, of LENOIR.

The plaintiff alleges that in December, 1917, he was employed by the defendant to do certain work during the year 1918, for which he was to receive $16 a week, fuel and house rent free, together with an increase in wages to be fixed in the following April; that he entered upon and continued in the defendant’s service until May, 1918, when he was wrongfully discharged, and that he has suffered damages in the sum of *218$500. Denying tbe material allegations of tbe complaint, tbe defendant alleges tbat tbe plaintiff was employed by tbe day; tbat for stated periods be rendered no service; tbat, careless and neglectful of bis duties, be caused tbe defendant financial loss, and thereby forced tbe defendant to discharge him from its service.

Tbe issues were answered as follows:

“1. Did tbe defendant employ tbe plaintiff under tbe agreement as alleged in tbe complaint? Answer: ‘Yes.’

“2. If so, did tbe defendant wrongfully and in breach of its agreement discharge tbe plaintiff, as alleged in tbe complaint? Answer: ‘Yes.’

“3. What damage, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer:‘$1.’

“4. What was tbe unpaid part of tbe wages for tbe year as fixed by tbe contract? Answer :‘$495.’

“5. What was tbe bouse and fuel fairly and reasonably worth tbat defendant was'to furnish plaintiff for tbe balance of tbe year after plaintiff’s discharge? Answer: ‘$60.’

“6. What amount of money did tbe plaintiff earn and receive for tbe service after bis discharge to tbe end of tbe year ? Answer: ‘$562.75.’

“7. What was tbe additional expense, if any, incurred by plaintiff Groom in necessary support of himself and family for balance of tbe year after bis discharge? Answer : ‘$246.’ ”

After tbe jury bad answered tbe remaining issues, bis Honor answered tbe third issue as an inference of law, each party reserving tbe right to except. His Honor held tbat tbe plaintiff was entitled to judgment only for tbe difference between tbe amount of tbe unpaid wages for tbe year fixed by tbe contract and of tbe reasonable worth of tbe bouse rent and fuel, to wit, $555 (tbe sum of tbe answers of tbe fourth and fifth issues), and the amount earned by tbe plaintiff after bis discharge, to wit, $562.75 (tbe answer to tbe sixth issue); and tbat as tbe latter exceeds tbe former, tbe plaintiff could recover nothing more than nominal damages for tbe defendant’s breach of its contract. Accordingly, judgment was entered in favor of tbe plaintiff for $1, as nominal damages, and tbe cost of tbe action. Having entered exceptions tbe plaintiff appealed.

Rouse & Rouse for plaintiff.

Thomas-B. Warren and Cowper, Whitaker & Allen for defendant.

Adams, J.

In bis complaint tbe plaintiff alleges tbat by tbe terms of tbe contract be was to be paid $16 a weeli in part compensation for bis services. On tbe trial there was evidence for tbe plaintiff tending to *219show tbat be was to be paid $15 a week for bis personal services and bis wife $1 a week for certain services to be rendered by ber. His Honor charged tbe jury tbat tbe plaintiff could not recover tbe amount claimed to be payable on account of tbe wife’s services, and tbat tbe plaintiff’s wages, if allowed by tbe jury, could not exceed tbe rate of $15 a week. To tbis instruction tbe plaintiff excepted.

Subject to definite restrictions, tbe right of a married woman to make an executory contract is governed chiefly by tbe provisions of C. S., cb. 51. It is not necessary, however, to discuss tbe meaning or purpose of tbe several statutes affecting tbe contractual rights of married women, inasmuch as tbe contract declared on was executed after tbe enactment of sections 2507 and 2513, which are controlling in tbe question under consideration. Tbe practical effect of section 2507 — tbe Martin Act— is to constitute a married woman a free trader as to all ber ordinary dealings, and to invest ber with tbe privileges of suing and being sued alone. Price v. Electric Co., 160 N. C., 450; Lipinsky v. Revell, 167 N. C., 508; Royal v. Southerland, 168 N. C., 406; Kirkpatrick v. Crutchfield, 178 N. C., 348. Section 2513 is as follows: “Tbe earnings of a married woman, by virtue of any contract for ber personal service, and any damages for personal injuries, or other tort sustained by ber, can be recovered by ber suing alone, and such earnings or recovery shall be ber sole and separate property as fully as if she bad remained unmarried.”

Counsel for tbe plaintiff, while advertent to these statutes, urge two objections against their application:

First, tbat tbe contract was made with tbe plaintiff, and tbe agreement to pay $1 to tbe wife merely enlarges tbe amount to be paid to tbe plaintiff, in view of tbe implied intention of tbe parties tbat tbe wife, during tbe plaintiff’s temporary absence, should give personal attention to tbe performance of duties devolving upon him; and in tbe second place, tbat as tbe plaintiff has declared on the defendant’s agreement to pay tbe plaintiff $16 a week, tbe answer to tbe first issue indicates tbat tbe plaintiff was employed as alleged. We are of opinion tbat tbe first objection cannot prevail. Tbe relevant statement in tbe case on appeal is tbis: “Tbe evidence of tbe plaintiff tended to establish tbe fact tbat be was to be paid $15 per week and bis wife was to be paid $1 per week for certain services to be rendered by ber.” Nowhere does it appear tbat tbe defendant agreed to pay both these amounts to tbe plaintiff, and in tbe absence of evidence to tbis effect tbe intendment of tbe law is in conflict with tbe plaintiff’s contention. Nor is tbe second objection available to tbe plaintiff. His Honor instructed tbe jury tbat tbe plaintiff, if allowed damages, should be allowed wages only at the rate of *220$15 a week, and the answer to the first issue must be interpreted with reference to this instruction. S. v. Murphy, 157 N. C., 615; Richardson v. Edwards, 156 N. C., 590; Donnell v. Greensboro, 164 N. C., 332. The first exception is therefore overruled.

The second exception also is untenable. It is directed to the question whether there was sufficient evidence of the defendant’s agreement to pay the plaintiff increased wages. ’ The allegation is that the plaintiff was to receive certain compensation “with a raise in wages, to be fixed in April following.” There was evidence tending to show that his wages were to be increased in April, and that in May the wages of one employee who had continued in the defendant’s service were increased from $2 to $3 a day, and the wages of another about 33% per cent. But the quantum or measure of increase in the plaintiff’s wages was neither alleged nor proved. The court held that the evidence was not sufficient to show an enforceable agreement by the defendant to increase the plaintiff’s wages, and the plaintiff duly excepted.

One of the essential elements of every contract is mutually of agreement. There must be neither doubt nor difference between the parties. They must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode agreed on by which they may be settled, there is no agreement. 13 C. J., 264. A contract for service must be certain and definite as to the nature and extent of the service to be performed, the place where, and the person to whom it is to be rendered, and the compensation to be paid, or it will not be enforced. 6 R. C. L., 644. The evidence as to the wages is equally indefinite if it be considered as tending to show an agreement to make a future contract. “Unless an agreement to make a future contract is definite and certain upon the subjects to be embraced therein it is nugatory. Consequently, the acceptance of a proposition to make a contract, the terms of which are to be subsequently fixed, does not constitute a binding obligation. The reason for this rule is that there would be no way by which the court could determine what sort of a contract the negotiations woirld result in; no rule by which the court could ascertain what damages, if any, might follow a refusal to enter into such future contract on the arrival of the time specified. Therefore, a contract to enter into a future contract must specify all its material and essential terms, and leave none to be agreed upon as a result of future negotiations.” 1 Elliot on Contracts, see. 175. “If no breach of the contract can be assigned which can be measured by any test of damages from the contract, it has been said to be too indefinite to be enforceable.” 1 Page on Contracts, sec. 28; Elks v. Ins. Co., 159 N. C., 626. In the absence of allegation and proof *221as to wbat the increased wages should be, there is no accurate test by which the plaintiff's damages could be measured.

Exceptions three, four, five, and six present but one question, and may be considered together. The court no doubt submitted to the jury the fifth issue and the seventh with the twofold purpose of presenting the conflicting views of the parties as to the measure of the plaintiff’s damages, and of determining the entire controversy by one verdict. Upon the trial the plaintiff contended that in answering the third issue as a conclusion of law the court should deduct from the answer to the sixth issue the answer to the seventh, leaving the net amount of the plaintiff’s earnings after his discharge to be deducted from the value of his contract as found in response to the fourth and fifth issues; and the defendant contended that the ansAver to the seventh issue Avas immaterial and should be disregarded. His Honor held with the defendant, and these exceptions challenge the correctness of his Honor’s ruling.

In 20 A. & E. (2 ed.), 37, it is said: “Where the action is brought subsequent to the expiration of the term of employment, the decisions are practically unanimous to the effect that the measure of damages is prima, facie the Avages for the unexpired portion of the term, this amount to be diminished by such sums as the servant has earned, or might have earned by a reasonable effort to obtain other employment in the same line of business. This proposition is cited with approAml in Smith v. Lumber Co., 142 N. C., 26. In Hendrickson v. Anderson, 50 N. C., 247, an overseer, employed upon a special contract for a year, was discharged during the year, and brought suit to recover the entire stipulated sum. This Court said: “The question necessarily arises, What is the amount of the damages Avhich he (the plaintiff) ought to be allowed to recover? The proper answer would seem to be the amount which he has actually sustained in consequence of the defendant’s default. It Avould seem to be a dictate.of reason that if one party to a contract be injured by the breach of it by the other, he ought to be put in the same condition as if the contract had been fully performed on both sides. He certainly ought not to be a loser by the fault of the other; nor can he be a gainer without introducing into a broken contract the idea of something like vindictive damages. The true rule, then, is to give him neither more nor less than the damages which he has actually sustained.” This case has been approved in Brinkley v. Swicegood, 65 N. C., 628; Oldham v. Kerchner, 79 N. C., 112; Markham v. Markham, 110 N. C., 356; Smith v. Lumber Co., supra.

In several jurisdictions the doctrine of constructive service has been repudiated, and in its place has been adopted the method of suing for damages for breach of the contract of employment. But the trend of judicial opinion, in analogy to the constructive service idea, seems to be *222toward regarding the contract price as a material, if not the controlling, element for consideration in the estimation of damages, both in jurisdictions in which the doctrine of constructive service has been repudiated and in those in which it has been retained. 6 L. R. A. (N. S.), 82. In Smith v. Lumber Co., supra, Walker, J., says: “If the doctrine of constructive service is illogical, in view of the right of the master to .have the damages diminished by showing that the servant engaged in other business, and consequently was not ready to perform the service, it does not follow th'at the rule itself as to damages is not a sound one, for other cogent reasons may have been assigned in its support. The employee, by no fault of his own, loses his wages, which are fixed by the contract, and their amount should be the true measure of his damages under the ordinary rule obtaining in the case of other contracts” (pp. 35-86). In jurisdictions in which the contract is held to be the measure of damages for breach of a contract of employment, it is only prima facie so, and where other employment, or the duty to seek other employment, is taken into consideration, the measure of damages suffered by an employee because of a wrongful discharge is the actual injury sustained, or the loss of the value of the contract. Perry v. Simpson, 37 Conn., 520. Here, then, two questions arise: (1) "What was the value of the plaintiff’s contract with the defendant? (2) In what amount has the value of the contract been impaired by the defendant’s breach?

As shown by the answer to the fourth and fifth issues, the jury found the value of the contract to be $555. To what extent has such value been impaired by the breach ? Evidently to the extent of the plaintiff’s actual loss. The measure of his loss is the difference between the value of the contract and the net amount earned after his discharge.

It has been suggested that the plaintiff, after his discharge, enjoyed advantages not provided in the original contract. He seems also to have received better wages; and if this question was in fact raised upon the trial, we must assume that it was considered in connection with the issues submitted to the jury. It will be observed that the expenses incurred by the plaintiff after his discharge were not elective, but necessary as well as additional to those he would have incurred had the defendant performed the contract. Shall the plaintiff’s loss, caused by his wrongful discharge, become the defendant’s asset ? It would be inequitable to say that the plaintiff shall not abate to the extent of additional and necessary expenses, the amount earned by him after his wrongful discharge. Van Winkle v. Satterfield, 23 L. R. A., 855; Pennsylvania Co. v. Dolan, 51 Am. St. R., 300. We hold, then, that the answer to the seventh issue should be deducted from that of the sixth, and the remainder, $316.75, should in turn be deducted from the value of the contract, *223represented by tbe sum of tbe answers to tbe fourth and fifth issues, and that tbe answer to tbe third issue should be $238.25, with interest from tbe termination of tbe period of tbe plaintiff’s employment, to wit, 1 January, 1919. 6 L. R. A. (N. S.), 91; Bond v. Cotton Mills, 166 N. C., 20; Chatham v. Realty Co., 174 N. C., 671.

Tbe judgment entered upon tbe verdict, as herein modified, is affirmed.

Modified and affirmed.