This is an action for wages and penalties brought by appellant as assignee of two former employees of respondent Anaconda Copper Mining Company. The wages were claimed to be due the employees for vacation pay under the terms of a collective bargaining agreement between respondent and the union of which appellant’s assignors were members. The provisions of the agreement upon which the action is based are as follows:

It is alleged in the first cause of action in the complaint:

In the second cause of action it is alleged:

In the third cause of action it is alleged:

Defendant demurred to the complaint on general and special grounds and the trial court sustained the demurrer as to all three causes of action. Plaintiff was allowed 15 ■ days within which to amend the first and second causes of action and the demurrer to the third cause of action was sustaintd without leave to amend. Plaintiff declined to amend and the court dismissed the action on motion of the defendant. Plaintiff appeals from the judgment of dismissal.

It appears from the allegations of the complaint in the first cause of action that plaintiff’s assignor Lamon had been employed from March 29, 1949, to February 28, 1954, a period of approximately four years and eleven months. He was therefore not qualified to receive vacation pay based on five years of service. Furthermore, he had not completed his qualifying current year of continuous service which would commence on March 29, 1953, that being the last anniversary of his employment with the • defendant company. Appellant argues that under the doctrine of substantial performance Lamon was entitled to recover 12 days’ vacation pay. However, substantial performance was not pleaded in the action, and although the court gave plaintiff the opportunity to amend ■ the -complaint, plaintiff declined to take advantage of the .court’s order in that respect.

In plaintiff’s second cause of action it is alleged that Chester F. Pemble had been. employed by defendant from August 1, 1945,- to March 2, 1954. It appears that while Pemble had worked for defendant for more than five years his services were terminated on or about March 28, 1954, and he, therefore, had not completed his qualifying current year of continuous service, which, under the contract, commenced on August 1, 1953, as -this date was the last anniversary of his employment with the defendant company. Furthermore, , neither Lamon nor Pemble were on the payroll of the defendant at the end of their respective years and this was a prerequisite to the allowance of vacation pay according to the terms of the contract. The contract, insofar as is shown by the record before us, contains no fixed period of employment and the employment of plaintiff’s assignors could therefore be terminated at the will of either party. (Division of Labor Law Enforcement v. Mayfair Markets, 102 Cal.App.2d Supp. 943, 948 [ 227 P.2d 463 ].) The parties to the contract here involved agreed therein as to the conditions under which vacation pay would be paid and since plaintiff’s assignors failed to qualify under the terms of the agreement they cannot require defendant corporation to allow such pay. (Civ. Code, § 1439; Division of Labor Law Enforcement v. Mayfair Markets, 102 Cal.App.2d Supp. 943, 947 [ 227 P.2d 463 ] ; 12 Am.Jur., Contracts, §296.)

In the third cause of action plaintiff seeks to recover a statutory 30 days ’ penalty vacation pay over and above that claimed as vacation pay. The pleading in this cause of action incorporates all the allegations of the first two causes of action and it is then alleged that the defendant company wilfully failed and refused to pay the vacation pay sought in the first two causes of action. It is apparent that if the vacation pay sought in the first two causes of action was not payable, then there can be no recovery under the third count of the complaint.

Since plaintiff has declined to amend the complaint and a cause of action is not stated, the judgment of dismissal was proper under the circumstances shown by the record.

The judgment is affirmed.

Barnard, P. J., and Griffin, J., concurred.

A petition for a rehearing was denied January 17, 1956, and appellant’s petition for a hearing by the Supreme Court was denied February 15, 1956.