Lester v. Kahn-McKnight Co.

SCHWARTZ, Chief Judge. Early in 1980, the appellant Lester was employed as a real estate salesman by the appellee Kahn-McKnight. He was given a $1,000 monthly draw “against commissions.” Six months later, having earned no commissions, Lester left Kahn-McKnight. He signed an agreement promising to repay the $6,000 he had received in draws. In the instant action, Kahn-McKnight sued and won a summary judgment for the $6,000. Lester appeals. In the absence of a specific undertaking to repay the amount of a draw upon commissions — which did not exist here — the draw is considered as a plain and simple [313] salary which, except as a set-off against earnings, the employee has no obligation to return. Tannen v. Equitable Life Ins. Co., 303 So.2d 352 (Fla. 3d DCA 1974); see also Placet, Inc. v. Ashton, 368 So.2d 404, 409-10 (Fla. 3d DCA 1979) (promise to pay draw against commissions in future requires payment of amount of draw even if commission is unearned), cert. denied, 378 So.2d 343, 347 (Fla.1979). It follows that Lester’s post-employment written promise was supported by no consideration and was therefore unenforceable as a matter of law. On this basis, the judgment below is reversed with directions to enter one in Lester’s favor. Reversed.