St. Anthony Motor Company v. Patterson

PER CURIAM. Defendant was in the employ of plaintiff as an automobile salesman from February, 1922, until August, 1926, under an agreement by which he was to receive as compensation specified commissions on the sales which he made. During the first summer he drew his commissions as he earned them and received no advances on commissions prior to the time they had been earned. In the winter business was slack and commissions few, and an arrangement was made by which he was allowed to draw advances against commissions to be earned thereafter. An account was kept in which he was charged with these advances as they were made and credited with the commissions as they were earned, and a statement of the account was furnished him at the end of each month. This arrangement continued until the termination of his service, at which time the advances previously made were several hundred dollars in excess of the amount of commissions earned. Plaintiff sued for this excess, and the court directed judgment therefor. Defendant appealed from an order denying a new trial, and contends that there was no agreement to repay the advances. He quotes the following statement from 39 C. J. 153, as the rule governing such matters: “Whei’e the contract of employment provides for advances to the employe, to be charged to, and deducted from, the commissions agreed to be paid to him as the same may accrue, the employer may recover back any excess of advances over the commissions earned, if there is an express or implied agreement to repay such excess. * * * In the absence of either an express or implied agreement or promise to repay such excess, the employer has no remedy against the employe, even though the contract in terms provides that there shall be settlements between them monthly.” The court made an express finding that defendant agreed to repay the advances, and an examination of the record discloses ample evidence to sustain this finding. Order affirmed.