Cota v. Alexander

Evans, Judge. Since the verdict was directed in defendant’s favor in the trial court, we have for decision here the sole question: Did the evidence demand a finding that the money sued for represented advances over commissions earned, and that there was no express or implied agreement or promise by the agent to repay such excess to the principal? An examination of the evidence shows that a jury should have decided the issues of fact as to this question. It is apparent from the record and transcript that the trial court sustained the motion for directed verdict based upon the following decisions: Valdosta Roofing &c. Co. v. Lawrence, 89 Ga. App. 168 (79 SE2d 10); Biles v. Home Interiors & Gifts, 112 Ga. App. 21 (143 SE2d 566). The above-cited authorities are bottomed upon Fried v. Portis Bros. Hat Co., 41 Ga. App. 30 (152 SE 151), and Smith v. Franklin Printing Co., 54 Ga. App. 385 (187 SE 904). Other authorities along this line are Foster v. Union Central Life Ins. Co., 103 Ga. App. 420 (119 SE2d 289); Roxy Furniture &c. Co. v. Brand, 106 Ga. App. 104 (126 SE2d 295); and Kennesaw Life &c. Ins. Co. v. Hendricks, 108 Ga. App. 148 (132 SE2d 152). But all of the foregoing authorities are premised upon the condition that the principal and agent contracted with a drawing account contemplated as a part of the agreement; or contracted with an agreement that advances on commissions would be made by the principal to the agent. The rule established by the above cases is a harsh one, and it should not be extended. In the case sub judice a verdict was directed, and, of course, in such cases the evidence must be construed most favorably toward the party opposing the motion for directed verdict. Thompson v. Neely & Wilcox, 32 Ga. App. 131, 133 (123 SE 171); Norris v. Coffee, 206 Ga. 759 (4) (58 SE2d 812). However, the transcript shows that plaintiff testified that there was no drawing account contemplated at the time of the contract; that no advance commissions were contemplated; [221] that the money involved here was personal loans out of affiant’s personal account, and was not a "draw.” It was for the jury to determine as to what was in the minds of the parties when they contracted and when the money was placed by the principal in the hands of the agent. Accordingly, the trial court erred in directing the verdict against the plaintiff and rendering judgment against him. Judgment reversed. Bell, C. J., Eberhardt, Pannell, Quillian, and Whitman, JJ., concur. Hall, P. J., Jordan, P. J., and Deen, J., dissent.