Dissenting Opinion.
Ewbank, J.—The appellee sued the appellant to recover an alleged balance due for work done, and filed with his complaint an itemized statement of many different dates, listing a small sum as due on each of those dates. Appellant answered by a denial and plea of payment, and on proper request the court made a special finding of the facts. The finding recited that appellee entered the employ of appellant on October 15, 1912, and continued therein until November 30, 1916; •that on October 30, 1912, he received from appellant wages on which appellant charged him a deduction of ten per cent, of the amount thus paid, in the sum of $4.30; and again, on November 16 and 30, 1912, respectively, he received from appellant wages for which like deductions of ten per cent, were made, in the sums of $3 and $3.40; that thereafter at the middle (the fifteenth or sixteenth) and end (the thirtieth or thirty-first) of each of many months, in a total of sixty-four times in the course of forty-nine and one-half months before his employment ended, he received sums of money for each of which he was charged ten per cent, of the amount paid to him, the sums thus charged to him which *623he did not actually receive ranging from $1.30 to $4.60; that except for the wages so paid to him on said sixty-four different dates, and the total of the deductions thus charged to him, the appellant paid appellee on the tenth of each month for all work done between the fifteenth and the end of the preceding month, and paid him on the twenty-fifth for all work done between the first and the fifteenth of the current month, but there is no finding of how many times nor when appellee drew money on these regular pay days; that the payments on the tenth and twenty-fifth of the month, respectively, were made in pursuance of a custom of appellant to pay all its employes on those dates, which was known to the employes; but from time to time appellant’s other employes, to the number of more than two hundred, also received payments of wages in advance of said pay days, when a deduction of ten per cent, of the amount so advanced was made; that such payments required additional bookkeeping by appellant (of a value not found), and it had to pay its banker $20 per month additional, but these reasons for charging the ten per cent, were not communicated to appellee; that the deductions were made, as wages were so paid, “with the knowledge and acquiescence of the plaintiff (appellee) but without prior agreement;” that five days before each regular pay day the appellant gave to each employe, including appellee, a statement of the hours he had worked, the sum he had earned, the deductions for anticipated payments and for the ten per cent, so charged, and the deductions for store accounts paid for him, and each time appellee receipted for his wages in full, “although in fact he received ten-elevenths of the amount of cash charged to him in each instance, so receipted for, and no more.”
In other words, on sixty-four different occasions, about nine or ten days before each time chosen by ap*624pellant for its general pay day, it “advanced” to appellee an amount of wages already fully earned by him, less ten per cent, of the sum so paid, charging him a discount equal to one per cent, per day (or more) for the time he had the money before it would have been paid in regular course, and the amounts so charged to appellee for making such payments in advance of the regular pay day have not been otherwise paid to appellee than by making the charge on appellant’s books for that accommodation. If it be granted for the purposes of the argument that under the issues in this case the appellant was entitled to prove, in each instance, an agreement upon a consideration to release the debt for wages earned upon payment, before the regular pay day, of ten-elevenths of the amount of such wages, and that an agreement to that effect could be implied from the acceptance of the advance payments and execution of receipts for the full amount, still I am unable to find in the finding of facts, as above set out, a valid consideration for the supposed agreement, even if it were made ; and am convinced that such an agreement would be void under the express provisions of the statutes quoted below.
A statute requires that every mining company “shall pay each employe * * * if demanded, at least once every week, the amount due such employe for labor * * * in lawful money of the United States, and any contract to the contrary shall be void,” and provides a penalty not exceeding double the amount of the wages, and a reasonable attorney fee, for failure to comply with such a demand. §§7981, 7983a Burns 1914, Acts 1911 p. 110.
Another statute provides that every employer “shall pay each employe thereof at least twice each month, between the first and tenth and between the fifteenth and twenty-fifth of each month the amount due such *625employe, and such payment shall be made in the lawful money of the United States or by negotiable check, draft or money order, and any contract to the contrary shall be void. Such payment shall be made for all wages earned to a date not more than ten days prior to the date of such payment,” under penalty for failure to do so. §§7989a, 7989b Burns 1914, Acts 1913 p. 47.
If I understand these statutes they require that in order to discharge a debt for wages earned they must be paid in money or negotiable paper, and a contract to release such a debt in consideration of anything else than money, such as the payment of part of the wages before they are due, is declared to be void. And as I understand them they require that wages for the first fifteen days of any calendar month shall be paid not later than the twenty-fifth of that month, and wages for the last half of the month not later than the tenth of the next month, if no demand is made, but, upon demand, all wages must be paid as often as once each week, in money or negotiable paper. So that, on the sixteenth or the thirty-first day of each month, when appellee drew ten-elevenths of the money he had earned, and was charged with receiving it all, he was not only forbidden by statute to make any contract to accept less than payment of the full amount of his wages, in money, or negotiable paper, but he would have been entitled to receive immediately his two weeks’ pay, in an amount larger than was actually paid to him, if he had demanded it, though in the absence of a demand he would not be entitled to receive it until ten days later. Under these statutes I do not think that payment of part of the accrued wages ten days before they absolutely would have become due, without demand, could amount to a substitute for actual payment, in money or negotiable paper, of the remainder of such wages, or to a consid*626eration for the discount of part of the debt for wages earned, or for an agreement by the employe to accept such prepayment in lieu of part of his wages, when a mere demand would have made them payable at once. In other words, where the appelleé had an immediate right to payment of his fuíl wages, in money, upon de-' mand, and the parties were forbidden by statute to make any contract that he should accept anything else than money or negotiable paper for his wages, and appellant had knowledge that he wanted his money, his mere failure to make a formal demand for it did not give appellant a continuing right to withhold payment until a future definite date which could lawfully be exchanged with the appellee for one-eleventh of the wages earned, so as to release appellant from its statutory obligation to pay not later than the fifteenth and twenty-fifth of each month, in lawful money or negotiable paper, all wages earned up to within ten days before the pay day.
Being subject to be taken away at any time by a demand, appellant’s right to withhold payment until the next regular pay day was without value; and agreements to substitute favors of any kind for actual payment of wages in money- or negotiable paper being ■expressly forbidden by statute, an agreement to forgive one-eleventh of the wages earned in consideration that the remainder should be paid a few days before the time fixed for payment was without lawful consideration and void, in my opinion.
The conclusion of law that appellee was entitled to recover the amounts deducted from his wages under the alleged implied agreement was correct,, in my opinion, and I think the judgment should be affirmed.