Berg v. Standard Light Co. of Cal.

TYLER, P. J.

Action to recover for work and labor performed. The complaint alleges in substance that defendants employed plaintiff, together with others named F. McNeil, Joseph Beechler, Wm. H. Brockett, and Wilfred Brockett, respectively, to work and labor for defendant Standard Light Company at certain agreed wages per week. The company was not in a prosperous condition and it was unable to pay said persons their wages in full at the close of each week. Partial payments were made, but the com

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pany kept getting farther and farther behind in the payment of the workmen until June, 1922-, when the company was informed by its employees that they would have to sever their relations with it as they were not receiving enough to support their families. Subsequently the employees assigned their claims to plaintiff, who brought an action to recover the amounts due him and the other four employees. Judgment was recovered for the amounts due plaintiff and Wilfred Brockett, but the trial court found that the other three employees were not entitled to judgment for the reason that they were married persons and had not complied with the provisions of section 955 of the Civil Code, which provides that no order or assignment of v/ages made by a married person shall be valid unless the written consent of the husband or wife, as the case may be, is attached to such order or assignment. Defendants did not set up in their answer the fact that the complaint did not state that the consents of the wives of McNeil, Beechler, and Wm. H. Brockett were not attached to their husbands’ assignments, nor was any objection made on that ground to the complaint either by demurrer or answer. Under these circumstances they must be deemed to have waived the same. Respondents have not favored us with a brief, but it seems clear to us that as a defense the section invoked by defendants is a mere matter that goes to the abatement of the action when specially pleaded, and not having been so pleaded it was waived. The case is similar in principle to a situation where a corporation has failed to allege the filing of its articles of incorporation, or a copartnership certificate required by the Civil Code, a necessary requisite before either may maintain or defend an action, in which case it has been universally held that failure so to do subjects them only to the specific defense in the nature of a plea in abatement, the allegation not being essential to the cause of action