the employee, as the same may accrue, the employer cannot, in the absence of either an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover from the employee such excess.

Illinois. Gannon v. Tyree (1909) 148 Ill. App. 99; Felsenthal Bros. & Co. v. Gradewohl (1920) 217 Ill. App. 170; Nelson v. American Business Bureau (1926) 241 Ill. App. 432. Roofing Sales Co. v. Rose (1927) N. J. L. 137 Atl. 211.

New Jersey.

New York.

Northwestern Mut.

L. Ins. Co. v. Mooney (1888) 108 N. Y. 118, 15 N. E. 303; Schlesinger v. Burland (1903) 42 Misc. 206, 85 N. Y. Supp. 350; Kupfer V. Holtzmann (1904) 88 N. Y. Supp. 362; Tausig v. Drucker (1904) 88 N. Y. Supp. 391; Hollender v. Friedenberg (1908) 60 Misc. 566, 112 N. Y. Supp. 467; Wolfsheimer v. Frankel (1909) 130 App. Div. 853, 115 N. Y. Supp. 958; L. J. Wing Mfg. Co. v. Thompson (1909) 120 N. Y. Supp. 51; Lobsitz v. Leffler, T. & Co. (1910) 140 App. Div. 14, 124 N. Y. Supp. 533 (judgment affirmed in (1912) 206 N. Y. 703, 99 N. E. 1110); Levay v. Goldwasser (1912) 75 Misc. 461, 133 N. Y. Supp. 456; Auerbach v. Ramer (1913) 80 Misc. 645, 141 N. Y. Supp. 848; Miller v. Blaisdell Machinery Co. (1913) 83 Misc. 35, 144 N. Y. Supp. 792; Samuels v. Bloom (1915) 91 Misc. 7, 154 N. Y. Supp. 189; Kramer v. Wien (1915) 92 Misc. 159, 155 N. Y. Supp. 193; Strauss v. Arthur Wolfsohn Co. (1916) 95 Misc. 171, 159 N. Y. Supp. 78; Vogel v. Graham (1917) 167 N. Y. Supp. 886; Kane v. Auto Laks Mfg. Co. (1918) 172 N. Y. Supp. 275; Lester C. Hebberd & Co. v. Blake (1919) 175 N. Y. Supp. 478; Goldberg v. Kleinberg (1919) 179 N. Y. Supp. 364; Pease Piano Co. v. Taylor (1921) 197 App. Div. 468, 189 N. Y. Supp. 425 (affirmed in (1921) 232 N. Y. 504, 134 N. E. 548); Markstein v. M. Ufland & Co. (1926) 126 Misc. 683, 214 N. Y. Supp. 476; Schwed v. Kennedy (1927) 220 App. Div. 189, 221 N. Y. Supp. 179. Pennsylvania. Mixsell's Estate (1889) 7 Pa. Co. Ct. 443. (See contra,

Snellenburg Clothing Co. v. Levitt (1925) 282 Pa. 65, 127 Atl. 309). West Virginia. RICHMOND DRY Goods Co. v. WILSON (reported herewith) ante, 31.

In all the cases subscribing to the majority view that a recovery cannot be had for the excess of advancements over commissions earned, it is expressly or impliedly held that moneys advanced to an agent or employee, which are chargeable to commissions earned by the latter are not in the nature of loans.

A salesman working under a contract by which his drawing account is to be charged against his commission account is not a debtor to his employer for the deficiency of his commissions, and the drawing account is only to be offset against commissions actually earned, unless expressly or by clear implication the employee agrees to repay the excess of advances. Markstein v. M. Ufland & Co. (1926) 126 Misc. 683, 214 N. Y. Supp. 476; Levay v. Goldwasser (1912) 75 Misc. 461, 133 N. Y. Supp. 456.

In L. J. Wing Mfg. Co. v. Thompson (1909) 120 N. Y. Supp. 51, supra, where the contract provided that the employee should be allowed to draw $30 a week against his share of the profits, and, should he fail to make sufficient sales to yield a profit equal to the $30, the employer had the option to discontinue the advances until the profits on the employee's sales equaled the money so advanced, the court held that under this contract there was no obligation on the employee's part to repay the advances, except by the profits on his sales, and that this was so, even though the profits did not equal the advances.

A contract under which the employer guaranteed to "loan or advance" stipulated sums per month, to be charged against and deducted from commissions that might accrue under the contract, imposes upon the employee no personal obligation other than to make repayment from the fund designated for that purpose. Gannon v. Tyree (1909) 148 Ill. App. 99.

However, if the employee, engaged under a contract by which he was to

give his services and devote all of his time and his best efforts to promote his employer's business interests until the end of his term of employment, abandons the contract before the expiration of the period of employment, whether from necessity or not, a personal judgment for the excess of advances over earned commissions may be rendered against him, on the theory that, by abandoning the business, he has deprived himself of the opportunity of earning commissions to offset against his drawings. Kupfer v. Holtzmann (1904) 88 N. Y. Supp. 362; Schwed v. Kennedy (1927) 220 App. Div. 189, 221 N. Y. Supp. 179.

And in Hollender v. Friedenberg (1908) 60 Misc. 566, 112 N. Y. Supp. 467, the court said that if the employee should breach the contract, he might be under personal liability to repay any deficiency.

A note given by an employee to cover the amount by which his drawing account exceeded the amount of his commissions is without consideration, and no recovery can be had thereon, notwithstanding the fact that the employee, at the time of the execution of the note, signed a paper acknowledging that he was "indebted to" the employer for the amount by which the drawing account, which by the terms of the contract was to be applied against commissions, exceeded the commissions earned. Lester C. Hebberd & Co. v. Blake (1919) 175 N. Y. Supp. 478.

In Kramer v. Wien (1915) 92 Misc. 159, 155 N. Y. Supp. 193, where the defendant sought to evade the general rule by an alleged oral agreement, the court said that the written contract was complete in itself, and expressed the entire terms of the engagement, leaving nothing to inference; and, if the alleged oral agreement to repay advances in excess of commissions be treated as an entirely separate agreement, it failed for lack of consideration.

Where advancements were, by the terms of the contract, to constitute "a charge against his commissions earned," a recovery cannot be had by the employer as against the employee,

for the excess of the advancements over the accrued commissions. Mixsell's Estate (1889) 7 Pa. Co. Ct. 443. But see, contra, Snellenburg Clothing Co. v. Levitt (1925) 282 Pa. 65, 127 Atl. 309, infra.

Although the advances are to be charged "personally to the employee," they are to be deducted from the amount of his commission, and are thus payable out of a specific fund, to wit, the anticipated commissions. Auerbach v. Ramer (1913) 80 Misc. 645, 141 N. Y. Supp. 848.

A contract of employment by which the employer agreed to "loan and advance" the employee a stipulated sum per week, which sums were to be charged against and deducted from his commissions, and which further provided that the employer need not make "any further advances" when the employee's account had been "overdrawn," cannot be construed as raising an implied promise on the part of the employee for the repayment of moneys drawn in excess of commissions, it being evident, from the abovequoted terms of the contract, that the intention of the parties was that moneys paid to the employee under the contract should be treated as advances against his commissions. Samuels v. Bloom (1915) 91 Misc. 7, 154 N. Y. Supp. 189.

Referring to a contract containing the provision, "We will issue a monthly statement showing the merchandise shipped for your account with commissions credited to your account and drawing account deducted, showing your balance either in debit and credit column, settlements to be made monthly," the court held that such provision was not to be construed as imposing upon the employee a personal liability for the excess of advances over commissions. Strauss v. Arthur Wolfsohn Co. (1916) 95 Misc. 171, 159 N. Y. Supp. 78.

A provision in a contract that "said advances shall be charged to the personal account of the employee," even without giving any force to the words which follow, and which declare that such advances shall be deducted from the earnings of the employee, does not

'contain any express or implied contract to repay. Auerbach v. Ramer (N. Y.) supra. The court said: "If the parties had it in their minds to make the defendant pay back any excess of advances, they certainly would have said so. It would have been a simple matter, and it is incomprehensible that such a simple provision should have been omitted, if the parties had intended otherwise. The words are not sufficient to create a personal liability on the part of the defendant, and, in my judgment, were never intended to create such liability."

Where advancements made by the employer were to be charged against commissions earned, and were to be a first lien on all commissions that might thereafter become due to the employee, the contract wholly omitting to mention any personal obligation on the part of the employee to repay such advances, and it being "specifically agreed that you shall remain in my employ, at my option, so long as you are in debt to me," the court, in holding that the contract did not show any obligation personally to repay such advancements, and that it did not show any implied promise arising from such terms, said that the quoted stipulation strongly tended to show an intention to rely upon the commissions to be earned to meet the advances, and was inconsistent with the idea of personal liability. Arbaugh v. Shockney (1904) 34 Ind. App. 274, 72 N. E. 668.

Periodical payments of fixed sums on account of, or as advances against, commissions to be earned, are advances only in the sense that they are to be deducted from any commissions earned. Kane v. Auto Laks Mfg. Co. (1918) 172 N. Y. Supp. 275.

Referring to a contract in which the employer was to "advance" the employee a certain monthly sum to be charged to and deducted from commissions earned, the court, in Schlesinger v. Burland (1903) 42 Misc. 206, 85 N. Y. Supp. 350, said: "We are of the opinion that the advances were not intended as a loan to the plaintiff, and that it was not the intention of the contracting parties, when the agree

ment was made, that he should be personally bound for the repayment thereof, except to the extent of his commissions earned. . . . . We speak of an advance of wages and an advance of salary, yet no one would regard this as a loan of so much money to the employee, which he has promised, or is expected, to repay. Again, for the purposes of a joint adventure, one agrees to give his services, and the other to advance the capital required. No one would consider the former bound to repay the capital advanced out of his own means. Hence, without a promise to repay, express, or fairly to be implied from the agreement under which the advances were made, a promise to advance money for a particular purpose as here, the furtherance of the defendant's business-does not import an expectation of its return personally by the person to whom the money was advanced. Unquestionably, it may have the meaning of a loan, if the verb is used in connection with a promise, express or implied, to repay the money. The agreement does contain

a provision to the effect that at the end of the period of employment the defendants should have resort for reimbursement to the plaintiff's accrued commissions, but it will not be seriously contended that this is a promise by the plaintiff to apply more than the amount of his commissions towards the repayment of the moneys advanced. In effect, the presence of the last-mentioned provision points to the mutual intention of the parties that the commissions should constitute a fund, which alone should be resorted to for reimbursement of the advances. . . Without this provision for resort to the commissions, the defendants would have had the right to offset any indebtedness of the plaintiff to them. To say, therefore, that the provision did not mean more, would be equivalent to saying that it did not mean anything. In order to give reasonable effect to it, we are constrained to hold that the parties intended the commissions to be the sole means of reimbursement for advances, and this, of course, precludes the implication of any promise on the part of the plaintiff to be answerable for the

amount of advances in excess of the amount of his commissions."

However, if the contract in terms contains a promise by the agent to repay the sums advanced, the transaction would amount to no more than a loan, and the right to judgment be undoubted. Arbaugh v. Shockney (Ind.) supra.

And in Rice v. Roberts (1913) 140 N. Y. Supp. 114, where the contract provided that the employer should advance to the employee, on account of commissions, the sum of $100 per month, but the employee agreed that, if such advances should at any time exceed the compensation earned, he would repay such excess to the employer on demand, provided, however, that, if the contract remained in force for a full year, the amount to which the employee should be entitled should not be less than $1,000, and under this contract the employer advanced to the employee a sum in excess of the compensation which the latter earned, the court held that under this contract the employee was entitled to receive a yearly salary of not less than $1,000, and was obligated to repay all advances which he received over this amount a year which should be in excess of the commissions earned by him. Strauss v. Cohen Bros. Co. (1912) 169 Ill. App. 337, holding that an employee whose commissions were less than advancements for expenses and drawing account was indebted to the employer, is apparently distinguishable on the ground that in the contract of employment it was expressly provided that, “if, at the close of the year's shipments, the amount shown by computing per cent on the sales of said second party, shall show an excess over and above the sum of moneys advanced by first party for traveling expenses, together with the drawing account, then any such excess sum shall be paid to second party by first party," the court evidently being of the opinion that the converse of the situation was to be inferred, i. e., if the commissions were less than the drawing account, the employee was to be liable for such deficiency.

In Anagnosti v. Almy (1925) 252 Mass. 492, 147 N. E. 854, where the

employee was to have a drawing account of $100 a week, to be charged against his share of net profits, if any, and there were no net profits, he was not chargeable with amounts drawn by him on his drawing account.

The fact that a contract provided that the employee was to have a drawing account, chargeable to commissions earned by him, raised no implied legal liability on his part to repay to the employer, in case the commissions earned fell below the sums advanced by the employer, the difference between the commissions earned and the weekly drawing account. Roofing Sales Co. v. Rose (1927) — N. J. L. · 137 Atl. 211.

There is nothing in such a contract to warrant the inference that any and all payments made to the employee on the $40 per week drawing account were conditioned upon the employee earning on an average of $40 per week, and that his right to retain such sums of money advanced to him was contingent upon his earning them in the future. Ibid.

Nor would the fact that the employee signed a statement of account showing the commissions earned by him, and moneys advanced to him on his drawing account, knowing that, after deducting the commissions earned from the drawing account, there was a balance in favor of moneys advanced, justify an inference that it was an admission by him that he was overpaid, and that the excess of the drawing account over the commissions earned was due to the employer. Ibid.

The court, in Roofing Sales Co. v. Rose (N. J.) supra, points out in Snellenburg Clothing Co. v. Levitt (1925) 282 Pa. 65, 127 Atl. 309, infra, in which the contrary doctrine is held, the advances were to "apply against, and be deducted from," the employee's earnings, whereas in the instant case the money advanced was made chargeable to commissions earned, and remarks that this might be a distinguishing feature between the two.

The minority view is taken in Snellenburg Clothing Co. v. Leavitt (Pa.) supra, where the contract provided that the employer was to pay the em

ployee a specified commission on all net sales, and "to advance a drawing account of $15,000 per annum," and such legitimate expenses as might be required for traveling, "all such advances, either for drawing account or traveling expenses, to apply against, and be deducted from," the employee's total earnings. The court construed the contract as imposing upon the employee the obligation of returning excess payments, in the event his commissions failed to equal the advances so made. In support of its views the court observed: "The advances were to apply against, and be deducted from,' defendant's earnings. The parties apparently did not anticipate earnings falling below the amount of the advances, and consequently made no express provision for the contingency. This, however, is no reason for reading into the contract something it does not contain, and thus make a new contract for the parties. Had they intended the advances should be in lieu of salary, and treated as such in event the commissions earned by defendant were insufficient to balance the account, it would have been a simple matter to have so stated. In absence of provision in the contract warranting such construction, we feel constrained to treat the advances strictly as such, and require return of any excess."

And the designation of the advances as "salary," in the account taken from the employer's books and attached to the statement of claim, did not, in the opinion of the court, indicate an intention to treat the advances as salary, and the court said that it could not hold that the mere designation of the advances in the employer's books as salary, for the apparent purpose of distinguishing it from the advances made on account of expenses, etc., would be sufficient to control the construction of the contract itself. Ibid.

And in Producers' Lumber Co. v. Guiniven (1918) 260 Pa. 423, 103 Atl. 916, where the manager of a department was engaged under a contract by which he was to receive as compensation a sum equal to one half of

the net profits of the department, and was to have a drawing account of a fixed sum per month, which was to be charged to him as against the amount of compensation to which he might be ultimately entitled, and his department, owing to losses through bad accounts, yielded no profits, as a result of which he was indebted to his employers for the amount of money which had been advanced to him, the court held that he was liable for the amount advanced to him on the drawing account, there being nothing in the contract to justify the claim that the advances made to the employee were to be considered as salary.

Also, in Martinez v. Cathey (1919) Tex. Civ. App. -, 215 S. W. 370, where agents for the sale of goods on commission were advanced the sum of $425 monthly for their own use, to be deducted from their commissions, the evident purpose of the advancements being to enable the agents to advance their own trade, and said advancement not being intended as a gift by the employer, but as a loan, the court held that the agents were liable for the excess of such advancements over commissions earned.

So, too, in Williams Mfg. Co. v. Michener (1908) 13 Ont. Week. Rep. 46, where the employer agreed to pay to the employee, "in full for all his services, the following compensation, with the limitations hereinafter expressed" (then followed a scale of commissions for sales and collections, and in the margin of the contract was a provision for a cash advance of $12 per week), "said advance to be deducted from commissions and premiums set forth in this contract," and the employer intended to consider this weekly sum an advance on account of the earnings of the employee, to be accounted for by the employee in any event, although the latter believed that he was to have this sum in any event, and that the sum would be deducted only in case the earnings were more than $12, the court rendered judgment for the employers in an action brought to recover advances made under this contract to the employee. R. P. D.