Shirley MacLaine had a contract to appear in the musical "Bloomer Girl"; Fox breached the contract, but offered her the leading role in a western, "Big Country".
Compare Luten Bridge
Luten bridge builds bridges
; to mitigate, we require that it act as a seller of construction supplies. Can Luten bridge argue: "That's a different kind of job?" Why not?
Measurability as a factor
Here is one theory. It is easy to calculate the costs of the salvage operation in the bridge case: money from sale minus money spent in selling. Harder in the employment case--what is the monetary value of working for me, learning the law?
This is consistent with what court's do, but no court has said this is a key factor. Also: in employment context
, reluctance to require (even in calculation of mitigation) that a person take a job the person does not want.
What if the employee takes the job anyway?
What happens if you take the different and inferior job? Can the breacher claim your earnings should be used to mitigate damages?
This is Southern Keswick, Inc v. Whtherholt
. The answer is yes
. Even though, if you had not taken the job
, the court would not have used the earnings in a mitigation calculation, if you do take the job
, they will. Why? Suppose you took the car wash job and it was "different and inferior". What do you get if we do not take your $800 into account in mitigation? You get $2400 and you are earning $800, so you come out with $3200 when what you lost by being fired was really only $1600.
Is this a good rule?
Suppose you hate the car wash job and that it is truly awful, but you had to pay your rent so you took it. If we measured your unpleasantness in dollars
, you are really losing money. Counter argument: since you took the job, subjective factors not all that bad. Is this a good argument? It is not an uncommon one.
Incentive to mitigate
Does this rule decrease the incentive to mitigate? In the research assistant case, if you don't take the job
, then you can stay home and get $12/hour. If you do take the job, then you only get compensated at $8/hour for a total of $12. So which is better? Not working for $12/hour, or working for $12/hour? Shouldn't the mitigator get some reward for taking the job--even if it is a pleasant job? Cts do not view it this way.