cook will not grumble at it. She, if anybody, ought to know that the frying-pan is better than the fire.
Nor can the party hiring deduct from the servant's wages any sum paid a physician called in by the hirer for the servant without the request or consent of the latter, nor in this case can a cross-action be brought for such sum, as the act is considered as merely one of generosity.[1]
If a servant hired for a specific time is wrongfully discharged before the expiration of the time for which she was hired, she can sue the party hiring for a breach of contract. She can bring an action either to recover for the services that she has actually rendered or for damages for the breach, in which latter case she can recover any amount already due her for services, and also compensation for damages sustained by the wrongful dismissal.[2] She can not wait, however, until the expiration of the period for which she was hired, and then sue for the whole wages on the ground of a constructive service.! It is obligatory upon her to diligently try to find another place. She must make reasonable exertions to diminish the damages. This is an active duty which the law wisely imposes. "Public interest and sound morality accord with the law in demanding this, and if the injured party through negligence or willfulness allows the damages to be unnecessarily enhanced, the increased loss falls upon him, and he can recover nothing for damages which by reasonable diligence on his part could have been prevented."[3] If the servant has been unable to find employment, and has been forced into involuntary idleness by circumstances, her damages will be an amount equal to the whole compensation agreed upon. This was held in a case where the action did not happen to be brought until the time of hiring had expired.[4] In another case where a servant who had been hired for two months was discharged without cause at the end of five days, it was held that the servant was entitled to recover the wages for the whole two months, although there had been so few days' service.[5]
If, now, on the other hand, the servant hired for a specific time is justly dismissed, or without reasonable cause leaves the service, what are her rights in regard to wages? Chancellor Kent says that in such case she loses her right to wages for the period she served.[6] This is, undoubtedly, the rule where the full performance of the contract is a condition precedent to the right to wages, and through the servant's fault fulfillment becomes out of the question. Common sense and strict justice, however, lead to a different rule where the fulfillment of the contract is prevented or rendered impossible by the sickness or death of the servant. The law makes a distinction between the willful or negligent violation of a contract and where its fulfillment is prevented by the act of God. "In the one case, the application of
