The accusation against the defendant was founded on an alleged violation of the statute (Code of 1886, §3812; Code of 1896, §4730), directed against frauds practiced on employers by servants or employes, obtaining money or other personal •property from the employer, upon a contract in writing for the rendition of service. In Ex parte Riley, 94 Ala. 82, it was said by Walkeb, J., in exposition of .the statute : ‘ ‘The effect of this statute is to provide for the punishment criminally of a certain class of frauds which are perpetrated by means of promises not meant to be kept.” And further it was said: “The ingredients of this statutory offense are : (1) A contract in writing *130by the accused for the performance of any act or service ;. (2) an intent on the part of the accused, when he entered into the contract, to injure or defraud his employer ; (3) the obtaining by the accused of money or other personal property from such employer by means of such contract entered into with such intent; and (4) the refusal by-the accused, with like intent, and without just cause, and without refunding such money, or paying for such property, to perform such act or service: This statute by no means provides that a person who has entered into a written contract for the performance of services, under which he has obtained money or other personal property, is punishable as if he had stolen such money or other personal property, upon his refusal to perform the contract, without refunding the money or •paying for the property. A mere breach of a contract is not by the statute made a crime. The criminal feature of the transaction is wanting unless the accused entered into the contract with intent to injure or defraud his employer, and unless his refusal to perform was with like intent and without just cause.”
In the present case, the only witness examined to show the criminating constituents of the offense, was the employer and prosecutor, who testified that the defendant in November, 1896, entered into a contract in writing to work for him as a farm laborer for the term of twelve months ; and for his services he promised to pay defendant nine dollars per month. At the time of entering into the contract he advanced the defendant the sum of twenty dollars, and the defendant worked for him under the contract for a period of seven months, when, without his consent, he abandoned the service. Under the contract, on the expiration of each month, the defendant became entitled to receive the monthly instalment of the wages the employer had contracted to pay, and the right of action for the recovery of each instalment was perfect. — Davis v. Preston, 6 Ala. 83; Fowler v. Armour, 24 Ala. 194. In view of the relation of the parties, the employer had the right to retain the wages until the money he had advanced was refunded. Refunding the money, or restoring other property, with which the employer, by reason of the contract was induced to part, is a principal purpose, the statute is intended to enforce. "When the money is refunded, or *131the property restored, the employer is saved from injury or loss, and subsequent breaches of the contract must be redressed by the pursuit of civil remedies. The rendition of service by the defendant for a period more than sufficient to have repaid the money advanced, to him, takes away an essential ingredient of the offense. The county court erred in the refusal of the instruction requested by the defendant.
The judgment is reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.
Reversed and remanded.