statement required under the California Code. Section 229 of our statute determines the character of the motion for a new trial, and is in the following language:

"In all cases of motion for a new trial the grounds thereof shall be plainly specified, and no cause of new trial not so stated shall be considered or regarded by the court."

The language of this section as to the motion is fully as mandatory in its terms as the statute of California requiring the errors complained of to be specifically set forth in the statement. It therefore follows that, unless this specification of errors in motion for new trial as clearly sets forth the errors relied upon as is required by the statement referred to in the California Code, then the court at nisi prius is not required to consider or regard the same in passing upon the motion for a new trial.

I now refer to the substance of the motion, and considering the first specification briefly, which is equivalent to a general demurrer to the complaint, on the ground that the same does not state facts sufficient to constitue a cause of action. In support of this ground of the motion counsel for the defendant argued with great vigor and earnestness that the complaint is a claim for labor and services, and not for damages for breach of the contract, and cites James v. Allen County, 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821. This case holds, in effect, that, "where a servant is wrongfully discharged, but his wages are paid up to that time, he cannot recover for future installments, but only for the breach of contract." The case reviews at considerable length the holdings of different courts upon questions involved. In this case, under a contract for a specified term, the plaintiff entered upon the discharge of his duty, and before the completion of the term was discharged by the defendant, as it was claimed, without any just or reasonable cause. The defendants set up in their answer as a defense a former suit, wherein the plaintiff had recovered of the de

fendant $205.30, and the complaint in the former case was in the exact terms of the complaint in the latter case, excepting as to the amount. The court, after discussing many of the authorities upon the various questions raised, held, as stated in the syllabus, that the party could sue for the breach of the contract, but could have but one recovery, and that would be a bar to a future suit. James recovered in the district court. The case was appealed to the Supreme Court of the state, and the plea of former recovery was sustained, and the judgment of the district court reversed.

The doctrine of constructive service for which suit could be brought lawfully, as it is claimed, at one time in England and in some of the states of the United States, seems to have been overturned as the law of England, and mainly so in the states of the Union. It is said in Moody v. Leverich, 4 Daly (N. Y.) 401, that a servant wrongfully dismissed cannot wait until the expiration of the period, and then sue for his whole wages on the ground of constructive service; his only remedy being an action on the contract of hire. Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285.

It would seem that Alabama, Mississippi, Missouri, and Wisconsin disapprove the doctrine of constructive service.

Without further consideration of this question, it is deemed sufficient to say that the great weight of authority now is that a suit for constructive services under such conditions as are presented in the case at bar cannot be maintained. Chamberlin v. Morgan, 68 Pa. 168; Willoughby v. Thomas, 24 Grat. (Va.) 522; Chamberlin v. McCallister, 6 Dana (Ky.) 352; Whitaker v. Sandifer, 1 Duv. (Ky.) 261; Miller v. Goddard, 34 Me. 102, 56 Am. Dec. 638.

I do not therefore consider the many authorities furnished by counsel upon this question. I heartily agree with counsel for defendant as to the law of the proposition. But what does the complaint in this case show? Is it an action for

damage for unlawful discharge, or is it for constructive services? Counsel for defendant seems to think the action is one for constructive service, and not for damages for the unlawful discharge and violation of the term of hire.

The complaint in this case, after setting out the terms of the contract of hire, the wages to be paid, and alleging that the plaintiff, pursuant to the terms of the contract, entered upon the discharge of his duties thereunder, and fully performed said contract on his part until the 24th day of June, 1902, and was then and ever since has been ready, willing, and able to perform his duties as such superintendent under and pursuant to said contract, further alleges that on said 24th day of June, 1902, the defendant, without cause and in violation of said contract, discharged plaintiff from its employment, and refused to further permit him to perform said contract. Then follows an allegation as to the peculiar nature of the contract of hire, and the impossibility of the plaintiff to secure other employment of like character during the fishing season—all of which is perhaps unnecessary to the complaint. The complaint further shows that the plaintiff has been paid by the defendant all wages due up to the time of the discharge, and then follows the allegation that, by reason of the breach of the contract by defendant, plaintiff has been damaged in the following sums: Loss of wages, $1,633.33; expenses for board and lodging, $410; expense return trip to Seattle, $25-making an aggregate of $2,068.33; and prays judgment for said sum, with costs.

It may be said of that part of the complaint setting out the specific claim for loss of wages, etc., that it is an enumeration of the particular damages that plaintiff has sustained by the breach of the contract. This was an unnecessary allegation in the complaint, and, like the other, is a statement of evidential facts, and not proper as an allegation. It is this part of the complaint that is, perhaps, somewhat misleading, and that counsel for defendant contends makes it an action for constructive

services rather than an action for a breach of contract from the discharge of the plaintiff. It may be said, perhaps, that the complaint possesses a double aspect, and that the pleader at the time of drawing the complaint was not altogether sure of the law controlling the matter, and stated such matters as he believed would entitle him to a recovery on either theory. I think a motion to strike out of the pleading all of those evidential facts following the allegation as to the breach of the contract in discharging the plaintiff might have been sustained.

So, comparing the complaint, or that part of it down to the allegation of the discharge and wrongful breach of the contract, with the precedents furnished in the law books, we find agrees with nearly all in stating a cause of action for a breach of the contract, except in the allegations as to the amount of damages the plaintiff has received by reason of such breach, which is supplied in a later allegation; and, while it is clear that the complaint presents this double aspect, it cannot be said that it does not state facts sufficient to constitute a cause of action even for a breach of the contract, and a violation thereof by the unlawful discharge of the plaintiff by defendant. It is the opinion of the court, therefore, that this ground of the motion for new trial is not well taken.

The next ground that the court feels bound to consider is as to newly discovered evidence. This ground of the motion in this case is supported by affidavit, and the claimed newly discovered evidence is set out in the affidavit at length. Now, it is a well settled rule of law that newly discovered evidence, to be available (1) must have been discovered since the trial, (2) must not be merely cumulative, or (3) go to the impeachment of witnesses. This has been so frequently decided by the courts that a citation of authorities in support of the proposition is unnecessary. It becomes necessary, therefore, to determine whether there is anything presented in the affidavit in

support of the motion for new trial that is in fact newly discovered evidence.

The evidence on behalf of the defendant in this case on the trial consisted practically of an affidavit made by the attorney for the defendant, which sets forth the matters which the absent witness, J. D. Carroll, would swear to if present in court. This affidavit is briefly as follows:

"That the plaintiff instead of the defendant is guilty of breaking said contract of employment; that the plaintiff failed to comply with the terms of the contract on his part, and that he was not a competent and efficient man, as he represented himself to be; that plaintiff was unable to perform the duties for which he was employed, and that he failed and neglected to perform them, and defendant was compelled to dispense with his services on that account; that the plaintiff was not prevented from securing other employment, such as he was competent to perform, by reason of the acts of the defendant."

It will be observed this affidavit goes largely to the competency of the plaintiff, and to show that he was discharged by the defendant because he was unfit for the service for which he was employed, and the names of a number of witnesses who will swear to these facts are given. The affidavit of the defendant's counsel on which he went to trial plainly shows that the question of incompetency was raised, and went to the jury as evidence. Any other testimony, therefore, bearing upon the same question, is cumulative, and not newly discovered evidence since the trial, that could be received as bearing upon the right of the defendant to a new trial at this time.

But among other matter stated in the affidavit is the fact that the plaintiff was intoxicated a very considerable portion of the time, and that his drunkenness rendered him wholly unfit for the service he had undertaken to perform under the terms of the contract of hire. As no evidence was offered on the support of the drunkenness and intoxication of the plaintiff, that might, under some circumstances, be newly discovered evidence, that would entitle the defendant to considera