Vogel v. White

TYLER, P. J.

Appeal from a judgment entered upon an order sustaining a demurrer of respondent to an amended complaint without leave to further amend.

[253]

The complaint in substance alleged defendant to be the chief engineer of the state harbor commission, and that he is the appointing power of persons under his control, and is authorized to pay compensation for the actual value of any service rendered under his appointment or employment. It then alleges that defendant employed plaintiff as engineering draftsman in the engineering department of the state harbor commission at the stipulated salary of $135 per month; that subsequently plaintiff was transferred to the architectural department, where he continued to receive and accept the salary above mentioned as compensation for his services; that plaintiff continued in his new employment for a period of eleven months, at which time he concluded that the work he had been performing entitled him to be classified as a senior architectural draftsman, and that as such he was entitled to be paid more than $135 per month during the eleven months’ period; that he was kept in ignorance of the fact that his services were worth more than he was being paid; that the reasonable value of such services rendered during the eleven months’ period was $300 per month—a difference of $1815 over and above the amount received, for which sum judgment was prayed.

The grounds of the demurrer were that the only contract set forth in plaintiff’s complaint was for employment at the rate of $135 per month, which salary had been paid, and that no other contract, express or implied, is alleged; that an employee whose compensation has been fixed by express contract may not, where the contract has been fully performed, sue for an alleged reasonable value of the services in excess of the stipulated amount; that the complaint on its face shows that the contract of employment at $135 per month was made by defendant not on his own behalf or individually, but on behalf of the state harbor commissioners, officially as the board’s representative; and there is, therefore, no allegation in the complaint upon which to base any personal liability on the part of defendant.

We are of the opinion that the complaint fails to state a cause of action and that the demurrer thereto was properly sustained.