Stone v. Bancroft , 139 Cal. 78 ( 1903 )

This action is brought to recover upon a written contract for seven months' salary, at the rate of $350 per month, commencing September 1, 1893. The plaintiff obtained a verdict and judgment for the full amount claimed, and the defendant appeals from the judgment and order denying his motion for a new trial. This court in department having affirmed such judgment and order, a rehearing was granted. The contract upon which this action is commenced is the same one involved in a former action brought by this plaintiff against this defendant for salary for a former period of service, in which plaintiff recovered judgment, which judgment was affirmed by this court. (Stone v.Bancroft, 112 Cal. 652.) We are convinced, upon a more thorough examination of the record, that if this court adheres to the views expressed in its decision in the former case, the judgment and order must be affirmed. The only difference apparent as to the facts is, that in the former case there were some services rendered by plaintiff under the contract during a small portion of the time covered by the action, while there was no work at all done by him during the period embraced in this action. That difference is, however, immaterial under the rule laid down in the former case, that, "even conceding that during a great portion of this time plaintiff was not working at all, yet, if he was ready and willing to work at all times if work had been offered, and no work was offered, and he had not been discharged, then the contract was in full force, and his right of action upon it cannot be gainsaid." Upon this branch of the case we are satisfied with the views expressed in the commissioner's opinion. We are also satisfied that the jury were warranted in their conclusion that there had been no substantial breach of the contract on plaintiff's part, and that the instruction requested by appellant, to the effect that if plaintiff entered into or engaged in, directly or indirectly, any mercantile or manufacturing business, the verdict must be for the defendant, was properly refused. It is also very clear that the monthly salary was, under the contract, due and owing at the conclusion of each month. It is contended that under section 1980 of the Civil Code, noted in the commissioner's opinion, no action can be maintained on the contract by an employee for any services rendered after the expiration of two years from the time when the employment commenced. It was not necessary for defendant to plead this statute as a defense, but we are of the opinion that it is not applicable to the case at bar. The statute does not in terms provide that the employee may not recover on the contract for any services rendered after the expiration of two years. The language is clear and explicit that it cannot be enforced against theemployee beyond the two years, and it was manifestly for his protection that the statute was enacted. It leaves him at liberty to proceed under the contract, if he so elects. The last sentence of the section upon which counsel relies in his contention, that for all services rendered after the expiration of two years the employee must bring his action upon a quantum meruit, was inserted in the statute for the protection of the employer, so that if the employee, disregarding the contract, brings his action for the reasonable value of his services, as he undoubtedly has the right to do, the employer may avail himself of the terms of the contract as to compensation, as presumably fixing the value of such services. If the legislature had intended that the contract should not be enforceable against the employer after two years, it is reasonable to assume that such intent would have been shown by language as clear and definite as that used in regard to the employee.

The judgment and order are affirmed.

Van Dyke, J., Lorigan, J., McFarland, J., and Henshaw, J., concurred.

The following is the opinion rendered in Department One, December 18, 1902, referred to in the opinion of the court in Bank: —