204 P. 671 | Idaho | 1921
Lead Opinion
This is an action by respondents to recover from appellants wages earned as laborers in driving logs down the St. Maries River, and for the penalty provided for in C. S., sec. 7381.
On June 25, 1917, respondents ceased to labor and demanded their time from appellants’ foreman in charge of the work. They were each given a statement of the amount due them, payable at the Lumbermen’s State Bank, St. Maries. Thereupon they left the place of their employment and proceeded to the city of St. Maries, where respondents Steve Chasen, Geo. Kopp, J. Byrne, Oliver Daley and
Respondent Olsie Bro made a written assignment of his time cheek to Davis & Link, whereby he bound himself to deliver to them when collected the amount of wages due him from appellants, and any additional wages due or to become due under the provisions of C. S., see. 7381. There is evidence in the record to the effect that Bro subsequently made another assignment to one Empey. The trial court, however, found that Bro had not been paid the wages due him and there is some evidence to support this finding.
Respondents Mike Carter and Geo. McDonald delivered their time checks to Norris for collection, without having made any assignment thereof.
Thereafter this suit was brought, which resulted in a judgment in favor of each respondent for the amount of wages due, for 30 days’ penalty at $6 per day, an attorney fee of $40, costs for verifying and fixing liens, and court costs. Labormen’s liens having been filed by each of the respondents were found to be valid, and the judgment further provided for the foreclosure of the liens and the sale of the logs covered by the liens and application of the proceeds derived therefrom in payment of the various claims. This appeal is from the judgment.
C. S., see. 6064, provides that: “Every assignor, his heirs, executors or administrators, of every such instrument in writing, is liable to the action of the assignee therefor, his executors or administrators, if such assignee has used diligence, by the institution and prosecution of a suit against the maker of such instrument, or against his heirs, executors or administrators, for recovery of the money or property due thereon, or damages in lieu thereof; but if the institution of such suit would have been unavailing, or the maker had absconded or left, or was absent from the state when such assigned instrument became due, or absconds within 20 days thereafter, such assignee, his heirs, executors or administrators, may recover against the assignor, or his heirs, executors or administrators, as if due diligence by suit had been used. By 'due diligence’ shall be understood the institution of suit within 60 days after the maturity of the obligation.”
The time checks upon which the judgment rests are nonnegotiable written contracts for the payment of money, within the meaning of see. 6063, supra.
When respondents indorsed and delivered their time cheeks to Davis & Link and Nelson, and received the amount due them for wages, they were no longer in a position to maintain an action for the recovery of the penalty provided for in C. S., sec. 7381. The purpose of the statute is to impose a penalty upon an employer for his failure to pay an employee wages earned, when due, after a proper demand has been made therefor. The right to recover the penalty prescribed by see. 7381, supra, is a personal right, and cannot be assigned.
Davis & Link and Nelson purchased by assignment a claim against appellants, upon which a right of action
Coming now to respondents Mike' Carter and Geo. McDonald, there is evidence in the record which supports the finding of the court that a demand was made for the wages due them under the terms of their contract. However, the judgment in their favor in its entirety cannot stand. The court found that on July 3, 1917, appellants tendered to R. B. Norris, attorney for the respondents, the full amount of wages due them on their time checks, but did not tender them the amount of the penalties claimed. This tender was refused. Upon the payment or tender of the wages, the running of the penalty provided by C. S., see. 7381, stopped. The employee, however, still had the right to bring suit for the penalty that had accrued up to that time. (St. Louis Ry. Co. v. Bryant, 92 Ark. 425, 122 S. W. 996.) A tender has the same effect as payment.
These particular respondents were entitled to a judgment for the amount of wages due- on the date demanded, and for the penalty up to and including the third day of July, 1917, at the rate of $6 per day, together with interest at the legal rate up to the time of tender, with costs for verifying and filing their respective liens, and attorney fees; while the other respondents were entitled to judgment
From what has been said it follows that the judgment appealed from should be modified as herein indicated, and when so modified will be affirmed. Costs awarded to respondents Mike Carter and Geo. McDonald.
Dissenting Opinion
Dissenting. — I do not concur in that portion of the foregoing opinion, wherein it is held that payment or tender of the wages actually earned, without including in the tender or payment the amount of the penalty which has accrued at the date of the tender, stops the running of the penalty under C. S., see. 7381. The statute provides that an employee “may charge and collect wages in the sum agreed upon in the contract of employment for each day his employer is in default until he is paid in full, without rendering any service therefor.” There does not appear to be any room for doubt that payment in full has reference to the payment of the accrued penalty, as well as the wages actually earned. The construction placed on this statute by the majority opinion emasculates it. The case of St. Louis R. Co. v. Bryant, 92 Ark. 425, 122 S. W. 996, relied upon in the majority opinion, construes a statute of that state materially different from our own, and should not be considered an authority in the construction of our statute, but if it is thought that the two statutes are sufficiently similar to cause the Arkansas case to become such authority, it should not be followed in this jurisdiction.
Except as above stated, I concur.
Petition for rehearing denied.