(dissenting).
In my opinion the judgment appealed from should be affirmed. The employee was discharge and under the provisions of section 45-606, I.C., was entitled to immediate payment in money. The check thereafter offered in payment of the wages earned was refused on the ground it was not money or its equivalent. No creditor is required to accept a check in payment of an indebtedness. There was no agreement between the employer and employee that a check would be accepted. The fact that a check was, on prior occasions, given and received without objection is of no importance. A custom, if one existed, cannot modify, repeal or change the wording of a positive statute. Had plaintiff been tendered or paid the money earned the penalty provided by statute would then stop. The employee never having been paid or tendered his wages in money or its equivalent, the penalty provided by law continued for the full thirty-day period.
There was no testimony whatsoever that the parties contemplated the payment of wages earned by a check. The employer did not pay the money due into court or offer to confess judgment. Plaintiff established his right to recover the amount claimed and demanded, and under the provisions of section 45-606, I.C., should be allowed attorney fees.
I do not construe the statute as interpreted in the majority opinion, nor can I follow the reasoning by which the conclusion is reached. I would affirm the judgment.