(dissenting): The petition alleged that plaintiff was employed by the defendants as a night watchman, “that while the plaintiff was designated as a watchman and was carried upon the books of the defendants, W. F. Edgell and Son, as a night watchman, he was during all of the time he was in the employ of the defendants, W. F. Edgell and Son, required to and did perform the duties of a pumper in that he was required to service and operate the pumps that were used by the defendants, W. F. Edgell and Son, in constructing the said plant.”
The demurrer admits the truth of these allegations.
In the proposal for bidders the defendants had notice of the classification of the labor to be employed, of the maximum hours of work under each classification, and of the minimum wage rates. The proposal was formally accepted in writing by the defendants, and thereafter incorporated in the written contract.
The petition alleged that plaintiff, during all the time he was in the employ of the defendants, performed the duties of a pumper. If this is true, then he is entitled to the compensation provided in the schedule for work of that classification. It would seem to be a question of fact for the jury to determine whether the plaintiff worked as a watchman or as a pumper.
The cases cited by the court deal with cases where the claimant performed additional work incidental to or within the scope of his employment. They do not appear to govern the case here presented. We are dealing with a PWA project, the very purpose of which was *241to promote recovery from the depression. This was to be accomplished by giving work to the unemployed, and by providing maximum hours of labor and a minimum wage scale. To say that the plaintiff, by accepting his weékly wage, has waived his right to recover for the class of work actually performed, utterly destroys the purpose of contract. ■ So construed, the contract between the city and the contractor, so carefully formulated, was a useless formality —a mere idle ceremony, signifying nothing. It would permit the contractor to do indirectly what he could not do directly. The inequality in the footing of the parties must be borne in mind. The contractor and the laborer do not stand upon an equality. The former naturally desires to obtain as much labor as possible at the lowest wage, while the latter, induced by the fear of discharge, will conform to regulations which his judgment, fairly exercised, would pronounce detrimental to his best interests.
Long ago it was stated by an English chancellor that "... necessitous men are not, truly speaking, free men, but to answer a present exigency will submit to any terms that the crafty may impose upon them.” (Vernon v. Bethell, 2 Eden, 110, 113 [1762].) Compare Holden v. Hardy, 169 U. S. 366, 18 S. Ct. 383, 42 L. Ed. 780; West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 S. Ct. 578, 81 L. Ed. 703.
I think the first count of the petition stated a cause of action.
As to the sufficiency of the second cause of action, attention is called to our statute G. S. 1935, 60-743, which provides:
“In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegations be controverted, the party pleading must establish, on the trial, the facts showing such performance.”
It would seem- that compliance with the statute was sufficiently pleaded.