session obtained by a constable who acted under color of legal process, to which the mortgagor yielded possession, is a taking by force and a trespass. McClure v. Hill (1880) 36 Ark. 268. But the fact that a constable accompanies the mortgagee, who takes possession of certain live stock for breach of the conditions of the mortgage, does not constitute a trespass, where it does not appear that the constable was taken because he was an officer, or that force or threats were used to secure possession, or that what was done was done colore officii. Holloway v. Arnold (1887) 92 Mo. 293, 5 S. W. 277.

In Street v. Sinclair (1881) 71 Ala. 110, the court observed that the mortgagee, in taking possession of a horse and mule after the law day, must proceed at his own peril if he commits the slightest assault or other breach of the public peace, for, if individuals were thus allowed to redress their own private injuries, the peace of society and good order of government would

cease.

If the mortgagee's act in taking possession of the mortgaged chattel amounts to a forcible ejectment of the mortgagor's agent, his entry becomes unlawful and the whole proceeding wrongful. Butcher v. Bell (1917) Mo. App., 198 S. W. 1123. In this case the mortgagee was held guilty of conversion in taking possession of a mortgaged store after the breach of the condition of the mortgage, where other articles not covered by the mortgage were in the store, which was locked up without giving the mortgagor any opportunity to remove them, although he made no demand for his property.

In Hawkins Furniture Co. v. Morris (1911) 143 Ky. 738, 137 S. W. 527, covenants in the mortgage having been broken, the mortgagee seized the furniture in the absence of the mortgagor, without her consent. The court, in sustaining a judgment against the mortgagee, who proceeded at once to sell the property without giving the mortgagor an opportunity to redeem it, observed that if, in taking possession of the property over the objection

of the mortgagor, a mortgagee would be required to use such force as would amount to a breach of the peace or an assault, or subject him to an action for trespass, he must resort to the courts for redress, and cannot forcibly or violently take possession of the mortgaged property.

It has been held that if the mortgagee gives to the mortgagor a right to possession until default, and the mortgagee takes possession of the property before default, over the mortgagor's protest and against his will, such act constitutes a conversion. Miller v. Biggs (1916) Mo. App. -, 183 S. W. 713, the court observing that it was not necessary that the taking amount to a duress; that it was sufficient to constitute a conversion if the taking was against the mortgagor's protest.

In Geiser Mfg. Co. v. Davis (1913) 110 Ark. 449, 162 S. W. 59, it was held that a mortgagee who took possession of a sawmill outfit without the consent of the mortgagor could hold it until the debt was paid, and the mortgagor could not recover the sawmill in an action of replevin, the court observing that the true owner in possession of a chattel can defend his possession, even though forcibly taken from another without consent; that the fact that the owner's possession originated in trespass does not deprive him of the right to hold against the person from whom he gained possession.

If the mortgagee by agents enters the premises of the mortgagor, even after breach of condition of the mortgage, after the mortgagor has told him not to enter the premises, he is guilty of a trespass, and the fact that the mortgagor's wife admits them into the house is no excuse, where she protests against their taking the property, although she uses no force to prevent them from doing so, and they take it in an otherwise peaceable manner. Bordeaux v. Hartman Furniture & Carpet Co. (1905) 115 Mo. App. 556, 91 S. W. 1020, the court observing that she was helpless under the circumstances, and did all that she could to retain the property; that it would have

availed her nothing to have measured her strength with that of the mortgagee's employees; that she was intimidated by superior force; that it was not necessary, to constitute coercion, to apply physical force; that the mortgagee, in enforcing its contract, was inviting a breach of the peace by entering the mortgagor's home after having been notified not to do so.

In Fulton Invest. Co. v. Fraser (1924) 76 Colo. 125, 230 Pac. 600, the mortgagee landlord sent an employee to the mortgagor tenant to take possession of certain mortgaged wheat, for the breach of conditions in the mortgage. The tenant's wife learned of the approach of the landlord's servant and locked the farm gate and removed planks from two bridges over which it was necessary to drive in order to reach the granary; the landlord's servant broke the lock, replaced the planks on the bridges, and loaded a truck with wheat. In an action for assault and battery resulting from an altercation between the mortgagee's servant and the mortgagor's wife, the court observed that the right to take possession of the wheat, on condition broken, carried with it the right of entry to take such possession.

A mortgagee has no right to resort to force, stealth, or fraud to obtain possession of mortgaged chattels against the consent of the mortgagor. First Nat. Bank v. Teat (1896) 4 Okla. 454, 46 Pac. 474. And see the reported case (WILSON MOTOR Co. v. Dunn, ante, 17), holding that neither the mortgagee, its assigns, nor their agents have the right to resort to force, threats, violence, or stealth to take possession of the mortgaged property without the mortgagor's consent.

A mortgagee is not justified in entering the mortgagor's premises, by unlocking a rented house and removing mortgaged furniture, by the fact that he believes the mortgagor has abandoned the property. McLeod v. Jones (1870) 105 Mass. 403, 7 Am. Rep. 539. The court observed that a right to enter the premises of the mortgagor, without legal process, is not essential to the security of the mortgagee; that permission to do so is

not implied from the existence of that relation alone; that the burden was upon the mortgagee to establish a special right which he set up in justification of his entry; that his title to the property and the supposed abandonment of the premises by the mortgagor were insufficient, without some license or permission from the mortgagor, expressed or implied.

In Loftus v. Maxey (1889) 73 Tex. 242, 11 S. W. 372, where a contract gave the defendant authority to enter the plaintiff's house and take away certain furniture without process of law, if certain payments were not made, the court observed that without such instrument they had the right to remove the property peaceably, and with the consent of the parties having it in lawful possession, while with it they had no right to make such removal forcibly, or against the will of the plaintiff.

Attention is called to Walsh v. Taylor (1874) 39 Md. 592, in which the court said that a defendant would not be guilty of trespass ab initio in entering the plaintiff's house, even without her consent, where he had a contract authorizing him to take possession of certain furniture, wherever found, if she failed to pay the weekly instalments.

And see London & W. Loan & Discount Co. v. Drake (1859) 6 C. B. N. S. 798, 141 Eng. Reprint, 664, holding that a mortgagee can sever fixtures from the freehold, and that a tenant cannot defeat this right by a surrender of his lease.

Attention is called to Re Morritt (1886) L. R. 18 Q. B. Div. (Eng.) 222 -C. A., in which it is held that a provision in a bill of sale giving the mortgagee the right, without notice, to take possession of the chattel for any of the causes specified in § 7 of the Bill of Sales Act 1882, and, if necessary, to break open the doors and windows, did not render the agreement void because the power to take possession was for the purpose of maintaining the security. See also Topley v. Corsbie (1888) L. R. 20 Q. B. Div. (Eng.) 350, and Lumley v. Simmons (1887) L. R. 34 Ch. Div. (Eng.) 689—C. A.

R. L. M.

Headnote by HATCHER, J.

The facts are stated in the opinion Messrs. Sanders, Crockett, Fox, & Sanders, for plaintiff in error:

No recovery can be had against defendant for money advanced in excess of commissions earned, in the absence of an express provision to this effect in the contract.

Nelson v. American Business Bureau, 241 Ill. App. 432; Roofing Sales Co. v. Rose, N. J. L. —, 137 Atl. 211; Pease Piano Co. v. Taylor, 232 N. Y. 504, 134 N. E. 548; Markstein v. M. Ufland & Co. 126 Misc. 683, 214 N. Y. Supp. 476; Felsenthal Bros. & Co. v. Gradwohl, 217 Ill. App. 170.

The provision in the contract to pay the defendant a drawing account of $200 per month, payable semimonthly, is an agreement to pay a fixed salary per month in the amount stated.

Zuby v. Height, 188 N. Y. Supp. 88; Schnabel v. American Educational Alliance, 79 Misc. 624, 140 N. Y. Supp. 369; Auerbach v. Ramer, 80 Misc. 645, 141 N. Y. Supp. 848; Nelson v. American Business Bureau, supra; Hall v. Bird-Bergstrom Motor Car Co. 227 Ill. App. 587; Newton, W. & W. Co. v. Hocker, Tex. Civ. App., 220 S.

W. 233.

Mr. Arthur F. Kingdon, for defendant in error:

The contract, in letter form, addressed to defendant, and accepted by

of the court.

him, states, "It is understood and agreed that you are to pay all expenses." Obviously, therefore, the court could do nothing but strike the evidence offered in an attempt to prove that the plaintiff was to pay defendant's expenses.

Watson v. Buckhannon River Coal Co. 95 W. Va. 164, 120 S. E. 390; Jones v. Kessler, 98 W. Va. 1, 126 S. E. 344; Richmond Engineering & Mfg. Corp. v. Loth, 135 Va. 110, 115 S. E. 774.

If the contract needed construction, the court would apply the construction most favorable to the plaintiff, regardless of who may have drafted the instrument.

38 Cyc. 1542; Chesapeake & O. R. Co. v. Hall, 109 Va. 296, 63 S. E. 1007; 26 R. C. L. 1063.

Hatcher, J., delivered the opinion of the court:

This is an action brought by a wholesale merchant against its traveling salesman to recover of him advances in excess of earned commissions. The contract between the parties stated a schedule of commissions the salesman was to receive, and then provided: "It is understood and agreed that you are to pay all expenses. We agree to advance

weekly expense account, which amounts are to be charged against earned commissions. We agree to pay a drawing account of $200 per month, payable semimonthly, which is to be charged against your earned commissions."

The employment continued for four years. Accounts of his expenditures were turned in weekly by defendant, which were promptly paid by plaintiff. The advances consistently exceeded the earned commissions throughout the entire period. No demand for the excess was ever made of defendant until his relation with plaintiff terminated.

Plaintiff sued for $5,232.73. This amount is composed of the excess with interest, and $160.50 admittedly due plaintiff on a note of defendant. Upon a demurrer to the evidence by the defendant, the jury found for the plaintiff the amount demanded, if the law be for it as to the excess, and $160.50 for it, if the law be for the defendant there

on.

The law, supported by the weight of authority in respect to such contracts, is stated in Labatt's Master & Servant, 2d ed. vol. 2, § 461, pp. 1358, 1359: "Such contracts do not, in the absence of an express stipulation to that effect, impose upon the employee a personal obligation to return the sums advanced to or withdrawn by him, in the event of his not earning enough in commissions to offset them. Accordingly if the amount of the advances or withdrawals exceeds the amount of the commissions earned by him, an action will not lie against him to recover the excess."

A like statement of this law is made in 2 C. J. title, Agency, § 452, p. 787. It is restated with larger annotation in 39 C. J. title, Master and Servant, § 207 pp. 153, 154. Leading cases upholding this rule are Nelson v. American Business Bureau, 241 Ill. App. 432; Schlesinger v. Burland, 42 Misc. 206, 85 N. Y. Supp. 350; Luce v. Consolidated Ubero Plantations Co. 195 Mass. 85, 80 N. E. 793; Newton, W.

& W. Co. v. Hocker, Tex. Civ. App., 220 S. W. 233; Lieberman v. Weil, 141 Wis. 635, 124 N. W. 262; Arbaugh v. Schockney, 34 Ind. App. 268, 71 N. E. 232, 72 N. E. 668; Roofing Sales Co. v. Rose, - N. J. L. 137 Atl. 211. A few decisions are not in harmony with the rule. Strauss v. Cohen Bros. 169 Ill. App. 337; Martinez v. Cathey, Tex. Civ. App. —, 215 S. W. 370; Clarke v. Eastern Advertiser Co. 106 Me. 59, 75 Atl. 303; and Snellenburg Clothing Co. v. Levitt, 282 Pa. 65, 127 Atl. 309. The first three may be differentiated from the general rule under the terms of the contract or the facts of each case. However, the Pennsylvania decision bluntly held the employee personally liable for the excess of advances over commissions, for the reason that the contract failed to exonerate him from personal liability. The silence of a contract in this respect is regarded quite differently_by_proponents of the majority rule. Their view is forcefully expressed in Northwestern Mut. L. Ins. Co. v. Mooney, 108 N. Y. 118, 123, 124, 15 N. E. 305, as follows: "There is no express agreement on the part of Mooney to pay back the money; there is no agreement that its advance shall create an indebtedness on his part; no word signifying that he is to be a borrower, nor that the plaintiff will lend to him any money. It would have been much more natural to insert words signifying that to be the true character of the transaction, if it was so intended, than omit them. . . It would have been a simple matter to have said that Mooney would repay the money, if that was the agreement, and that such or similar words were not used is one proof, among others, that the parties never intended to enter into such an agreement."

Counsel for the plaintiff relies upon the statement in the contract that defendant is to pay all expenses. The course pursued by the parties does not indicate that they considered the defendant to be personally