Opinion
39537.
DECIDED MAY 23, 1962.
Complaint. Cobb Superior Court. Before Judge Henderson.
Samuel L. Eplan, Holcomb McDuff, for plaintiff in error.
Hicks Howard, Claud M. Hicks, G. Robert Howard, contra.
In the absence of an express or implied commitment to repay advances from an employer to an employee in excess of commissions earned by the employee, there is no legal obligation to repay.
DECIDED MAY 23, 1962.
Roxy Furniture Novelty Company, Inc., sued Henry Marshall Brand to recover an amount allegedly owed to plaintiff because of advances made to the defendant, an employee, in excess of commissions earned. Attached to the petition, as an exhibit, was the employment contract on which the action was based. By amendment the plaintiff attached an exhibit showing the sales made and commissions earned by the defendant from January 1, 1960, through October, 1960. The amendment alleged that while the defendant's employment began as of November 1, 1958, there was no overdrawn balance due by him as of December 31, 1959. The employment contract read in part as follows: "Second party is to be advanced the sum of $500 per month payable $250 on the first and fifteenth of each month, which is to be applied against commissions earned, the said advance to be made for a period of ninety days only, commencing with this agreement. If second party is overdrawn at the time of severing connections with the first party, the difference or deficiency shall be paid to the first party." The defendant renewed his general demurrer after the petition was amended and on the hearing of such demurrer the trial court rendered a judgment sustaining the same and dismissing the plaintiff's petition. The plaintiff now excepts to such judgment adverse to it, as well as to the judgment of the trial court overruling the plaintiff's oral motion to strike the defendant's answer.
1. "Where a principal advances money to his agent on a drawing account against his commission to be earned as a salesman for selling merchandise, and his commission does not amount to the sum advanced, the employer can not, in the absence of an express or implied agreement, or promise to repay any excess of advances over the commissions earned, recover such excess from the employee. 2 Am. Jur. 229; Richmond Dry Goods Co. v. Wilson, 105 W. Va. 221 ( 141 S.E. 876, 57 ALR 31, 33); 2 CJ 787; 39 CJ 153. And see Fried v. Portis Hat Co., 41 Ga. App. 30 ( 152 S.E. 151)." Smith v. Franklin Printing Co., 54 Ga. App. 385 (2) ( 187 S.E. 904). See also Valdosta Roofing c. Co. v. Lawrence, 89 Ga. App. 168 ( 79 S.E.2d 10); and Foster v. Union Central Life Ins. Co., 103 Ga. App. 420 (1) ( 119 S.E.2d 289). The employment contract, dated November 1, 1958, called for advances to be made for a period of ninety days only and of necessity the express agreement to repay any deficiency could apply only to the advances which the employer expressly agreed to make. The petition expressly alleged that the defendant was not "overdrawn" on December 31, 1959, that he began his employment on November 1, 1958, and that the amount sued for accrued during the first ten months of 1960. The petition fails to allege either an express or implied agreement on the part of the defendant to repay any advances made after the first ninety days of employment and the trial court did not err in sustaining the defendant's general demurrer and dismissing the petition.
2. The remaining assignment of error, that the trial court erred in overruling the plaintiff's oral motion to strike the defendant's answer, in view of the above ruling, is nugatory and will not be passed upon.
Judgment affirmed. Frankum and Jordan, JJ., concur.