Fisher Construction Company, Ltd. v. C. W. Lerche

232 F.2d 508 FISHER CONSTRUCTION COMPANY, Ltd., Appellant, v. C. W. LERCHE, Appellee. No. 14842. United States Court of Appeals Ninth Circuit. April 17, 1956. Lyle H. Turner, Agana, Guam, Spiegel, Turner & Stevens, Santa Monica, Cal., for appellant. E. R. Crain, Agana, Guam, Thomas Jenkins, San Francisco, Cal., for appellee. Before DENMAN, Chief Judge and STEPHENS and CHAMBERS, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal from a judgment of the District Court of Guam awarding appellee, hereafter the Employee, $3,200.00 damages against appellant, hereafter the Employer, for breach of a contract of employment. The employer contends that the District Court erroneously placed the burden of proof on it as to factors mitigating the damages. 2 The employee was employed by the employer for a two-year period. In the middle of the second year the employer discharged the employee, breaching that contract. During some of the time from the date of discharge until the date the contract would have terminated the employee was employed by the Modern Builders Corporation for 50% of the net profits as salary for his services. The employee testified that there was no net profit but…

This is an appeal from a judgment of the District Court of Guam awarding appellee, hereafter the Employee, $3,-200.00 damages against appellant, hereafter the Employer, for breach of a contract of employment. The employer contends that the District Court erroneously placed the burden of proof on it as to factors mitigating the damages.

The employee was employed by the employer for a two-year period. In the middle of the second year the employer discharged the employee, lm*aching that contract. During some ofWhe time from the date of discharge until the date the contract would have terminated the employee was employed by the Modern Builders Corporation for 50% of the net profits as salary for his services. The employee testified that there was no net profit but that he had drawn $400.00 “against anticipated profits.” This sum was deducted from the amount the employee would have made if the employer had not breached their contract of employment to determine the damages awarded.

The employer contends that the District Court erred in placing on it the burden of proof that employee did not in fact suffer damages as a result of employer’s breach of contract equal to what the employee…

(concurring and dissenting).

Mostly, I concur in the foregoing opinion. But I disagree with the majority’s holding that Lerche should be allowed to recover the extra $25.00 per week which came about due to the raise of his salary from $175.00 to $200.00 per week.

The record, as I read it, indicates beyond doubt that the increase in pay above the original contract was the employer’s unilateral act. There is no showing of a bargaining for it or of an intent to change the contract. I would not question that a new contract could have been made.

The Arizona case of Perry v. Farmer, 47 Ariz. 185 , 54 P.2d 999 , is not new to me. In that case there was bargaining and consequent agreement for lower rent than the first lease agreement. There the agreement was both unmistakable and fully executed. The Arizona Supreme Court held that the lessor could not return to the original lease and get the higher rent agreed upon. Perry may stand for the proposition that if the Fisher Company had paid the increased compensation voluntarily to the end of the contract then Fisher could not get the increase back. I do not read Perry as endorsing what the majority does here on this small item. Cf. Alaska…