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39. At the end of the year, in an action against the builder for breach of contract, how much, if anything, is the mason entitled to recover?
A brick mason was hired by a builder under a written one-year contract, at an annual salary of $45,000, with employment to begin on March 1. Because the builder was unable to secure enough building contracts to keep all its employees busy during the season beginning March 1, it notified the brick mason on February 15 that it could not afford to employ him as a mason. At the same time, however, the builder offered to employ the mason, for the same contract period, as a night guard at an annual salary of $25,000. The mason declined the offer and remained unemployed during the year. No employment for brick masons was available in the community during the year, but the mason could have obtained other employment as a day laborer that would have paid up to $25,000 a year.
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A is incorrect. While it is true that the non-breaching party cannot continue performance and unreasonably increase damages after the breaching party repudiates or breaches the contract, Restatement (Second) of Contracts § 350 (1981), in employment contracts, the employee is not required to accept employment that is different or inferior to the work originally agreed upon. Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, (1970). Here, the mason has a duty to seek comparable employment earnings to reduce the damages of the builder's breach, but the mason is not obligated to take a job of lesser pay or status, nor is the mason obligated to accept lower pay from the same employer unless it is clear there is no waiver of right to sue for difference in pay. Id.Here, employment as a day laborer or a night guard is not comparable to the brick mason position because both positions required different skills and hours.
C is incorrect. This answer choice does not address the central issue. Although the builder did not act in bad faith, the mason is still entitled to compensatory damages.
D is incorrect. As discussed above, the mason's duty to mitigate the damages is limited to comparable work in the same locale.