Dissenting in Part. — I concur with that part of the majority opinion which holds that before an attorney’s fee can be recovered under C. S., sec. 7380, it is necessary for the claimant to make demand in writing, five days before suit is brought, for a sum not in excess of the amount found due. Unless the plain terms of the statute are to be disregarded, I think no other conclusion can be reached.
-I do not concur in that part of the opinion which holds that a party may recover the penalty provided by C. S., sec. 7380, before he has made demand for the amount due him, or where he has made demand for an amount in excess of what he claims. The purpose of this statute in allowing laborers to charge and collect thirty days’ wages, at the rate agreed upon, without rendering any service therefor, if the employer fails or refuses “upon demand to pay them in like money or its equivalent, the amount of any wages *791or salary at the time the same becomes due and owing to them under their contract of employment,” is to penalize the employer of labor for any expense, trouble or annoyance such employer may cause such laborers in failing and refusing to pay such wages “on demand” when the wages have been earned. Obviously, this statute means that the employee, before being permitted to recover pay for thirty days’ labor, in addition to that which he has actually rendered, must mate demand for the value of the labor he has performed.
Respondent, in the agreed statement of facts, admits that he demanded a sum in excess of what was due him. The words “fail or refuse on demand” have no other meaning than that a demand shall first be made, and a demand for a sum in excess of what the employee claims to be due him is not a demand within the meaning of the statute. Therefore there was no failure or refusal to pay “bn demand” in this case, because no demand was made.
Statutes-providing penalties similar to this, in the case of railroads, for their- failure to pay for property injured or destroyed by trains, have frequently been passed upon, and it has quite generally been held that where a person has made demand for a sum in excess of what is subsequently found to be the value of-the property injured or destroyed, the owner cannot recover the penalty. In St. Louis I. M. & S. R. R. Co. v. Wynne, 224 U. S. 354, 32 Sup. Ct. 493, 56 L. ed. 799, 42 L. R. A., N. S., 102, sec, also, Rose’s U. S. Notes, the owner demanded $500 damages, which the company refused to pay. He did not in his suit thereafter either claim or establish that he was entitled to this amount, and the jury fixed his damages at $400. The United States supreme court, in reversing the state court, said that the conclusion was unavoidable that the statute, as so construed and applied, was an arbitrary exercise of the powers of government, and violative of the fundamental rights embraced within the conception of due process of law; that instead of providing- a reasonable incentive for prompt settlement, *792without suit, of just demands, it attached onerous penalties to the nonpayment of extravagant demands, thereby making submission to them the preferable alternative, and that plainly this could not be done consistently with due process of law. It then approves the principle announced by an earlier decision from the court whose decision it was overruling, Pacific Mutual Life Insurance Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764, wherein the Arkansas court held that the state statute providing that if a loss under a policy of insurance was not paid within the time specified, “after demand made therefor,” the company should be liable in addition to the amount of the loss to twelve per cent damages and a reasonable attorney’s fee. The insured demanded a sum in excess of what he subsequently recovered, and the court reversed the judgment and held that the statute contemplated that there should be a demand, saying, “A recovery for a penalty and attorney’s fees cannot be had when complainant makes demand for more than he is entitled to recover. It could ne'pr have been the purpose of the legislature to make the insurance companies pay a penalty and attorney’s fee for contesting a claim that they did not owe; such an act would be unconstitutional.”
In Pierce v. Chicago & N. W. R. R. Co., 180 Iowa, 1385, 164 N. W. 182, the court construed a statute making a railway company liable to the owner of any stock killed or injured, under conditions specified, and which further provided that if the company failed or neglected to pay such damages within thirty days after a notice in writing that a loss or injury had occurred, the owner would be entitled to recover double the amount of damages actually, sustained by him. He demanded $200 as the value of the animal killed. The company refused to pay, and subsequently a jury found its value to be $190, and judgment was entered for $380, whereupon the company moved that judgment be entered for only the value as fixed by the jury. The appellate court said that the motion should have been sustained, and that to hold otherwise would in effect result in penal*793izing defendant for not yielding to an unjust demand. The statute did not in specific terms require the owner to demand the correct amount, but the court held that the owner having demanded an amount in excess of the value as found by the jury, the company, in refusing to pay such excessive claim, was guilty of no wrong, but was to be commended for not paying it, and thereby encouraging efforts at extortion, and cited the following authorities, which sustain this, doctrine: Chicago, M. & St. P. R. R. Co. v. Polk, 232 U. S. 165, 34 Sup. Ct. 301, 58 L. ed. 554; Kansas City S. R. Co. v. Anderson, 233 U. S. 325, 34 Sup. Ct. 599, 58 L. ed. 983; Missouri K. & T. R. R. Co. v. Cade, 233 U. S. 642, 34 Sup. Ct. 678, 58 L. ed. 1135, see, also, Rose’s U. S. Notes.
The majority opinion avoids the force of the rule announced in the foregoing cases, and endeavors to differentiate between the l'ule applicable to statutes where a penalty is prescribed for a failure to pay unliquidated damages and the one under consideration, by saying “these conditions do not appear to be applicable in a' case where the amount due is fixed by contract, and may be determined by simple computation,” and holds that under this statute a demand on the part of the laborer for the amount he claims to be due is unnecessary as a condition precedent to recovering the penalty, and that it is the duty of the employer to tender the amount due in order to escape the penalty. This distinction requires a refinement of reasoning that is neither sound nor logical. Where the amount of the claim is made definite and certain by the terms of the contract, a demand for the amount due can with more reason be required, than where it is for unliquidated damages.
Many classes of labor, such as earing for stock on the range, operating farms and the like, are not performed under the direct supervision of the employer, and frequently he does not know the exact amount he owes for such labor. The employee who performs this labor does know, but if he is not required to make a demand for the amount actually due, before subjecting his employer to this penalty, *794the construction given to this statute permits and encourages him to make an extortionate demand, for if it be refused, he may still recover the penalty and the full amount found due.
This statute, when properly construed and applied, tends to promote fair dealing between the employer and the employee, and to compensate such employee for any loss occasioned by his employer negligently or wrongfully refusing to pay him “upon demand •. . . . the amount of any wages or salary at the time the same becomes due and owing.” But it was not intended to penalize the employer for thirty days’ wages for which no services are rendered, unless he fails or refuses “upon demand”; and “demand,” as used in this statute, means a demand for an amount not in excess of what the claimant is entitled to receive.
The case should be reversed and remanded, with instructions to also strike from the judgment the penalty allowed, because of the failure of the respondent to make the demand required by the statute.
McCarthy, J., concurs.