Grace v. Morales

• Decision Date: 08 April 1968
• Docket Number: No. 7341,7341
• Citation: 210 So.2d 60
• Parties: William GRACE v. Richard MORALES.
• Court: Court of Appeal of Louisiana — District of US

Page 60

210 So.2d 60

William GRACE v. Richard MORALES.

No. 7341.

Court of Appeal of Louisiana, First Circuit.

April 8, 1968.

Rehearing Denied May 27, 1968.

Charles B. Johnson, of Chaffe, McCall, Phillips, Burke, Toler & Hopkins, New Orleans, for appellant.

Philippi P. St. Pee, of Stringer & Manning, Harahan, for appellee.

Before LANDRY, REID and BAILES, JJ.

LANDRY, Judge.

This devolutive appeal by plaintiff, William Grace, is taken from the decree of the trial court granting the motion of defendant, Richard Morales, for summary judgment rejecting and dismissing plaintiff's demand for the sum of $3,513.21 allegedly due as unpaid balance upon advances made to defendant while defendant was employed by appellant as a special agent to sell life insurance in an allotted territory. We find that the trial court improperly sustained defendant's motion for summary judgment and remand this cause to the trial court for further proceedings.

The petition alleges in substance that on April 20, 1965, plaintiff, a General Agent for John Hancock Mutual Life Insurance Company, entered into a written contract with defendant denominated 'Special Agent's Commission Agreement', a copy of which is attached to plaintiff's petition. Plaintiff also asserts that according to the terms of the written instrument, defendant employee agreed to accept, as full compensation for his services, commissions to be paid at the rates set forth in the agreement. It is further averred that, as customary in the trade, advances of money were made by appellant to appellee with the expectation that said advances would be repaid either by direct payment by defendant or by retention by plaintiff of commissions earned and due under the contract of employment. Finally, the petition alleges advances in the sum of $3,513.21 in excess of earned commissions, for which sum plaintiff prayed for judgment.

Defendant answered plaintiff's petition admitting the contract of employment but denying all remaining allegations of any consequence. Simultaneously with the filing of his answer, respondent also filed a motion for summary judgment. Attached to appellee's motion for summary judgment was an affidavit executed by defendant in which he admitted signing the employment contract sued upon. Additionally, defendant asseverated that the contract in question represents the entire agreement between the parties and that there are no other independent oral or written covenants between the litigants, either express or implied.

Plaintiff filed no counter affidavits prior to trial of defendant's motion for summary judgment. Subsequently, however, plaintiff filed in this court an affidavit alleging in effect that the original contract was not the only agreement between the parties but that said pact was amended by a subsequent agreement or agreements. Defendant maintains that plaintiff's said affidavit was not timely filed and should not be considered by this court.

In continuing to urge his motion for summary judgment, defendant relies upon the well established rule that excess advances to an employee, engaged on a commission basis, over earned commissions or profits cannot be recovered by the employer in the absence of an express or implied agreement by the employee to repay the overplus. In so contending appellee relies upon Landry v. Huber, La.App., 138 So.2d 449, 95 A.L.R.2d 499 and Bardwell v. Szatmary, La.App., 99 So.2d 420, and authorities therein cited.

On the other hand, appellant maintains the trial court erred in granting defendant's motion for summary judgment because under the pleadings, attached exhibit and affidavits, defendant is not entitled, as a matter of law, to judgment dismissing plaintiff's action on a motion for summary judgment. More particularly, appellant argues the authorities relied upon by defendant involve situations wherein the terms of the contracts sued upon were different from those involved in the instant case. In this regard plaintiff contends the cited authorities involved circumstances in which the agreements provided for a stipulated monthly advance paid the employee pursuant to an arrangement for an agreed drawing account with the understanding that the employer shall look solely to earned commissions to offset such advances and that the employee shall not be personally bound therefor.

Appellant readily concedes appellee has correctly stated the rule announced in Landry v. Huber, supra, and Bardwell v. Szatmary, supra, but contends the principle therein announced is without application to the case at hand by virtue of certain specific provisions contained in the contract presently before the court.

In so arguing, appellant relies upon the provisions of Paragraphs Five (5) and Twenty-one (21) of the agreement appearing of evidence, which read as follows:

'5. General Agent will allow Special Agent, and Special Agent hereby agrees to accept as full compensation, commissions at the rates shown for the plans of policies specified in the Schedule of Rates of Commissions, as hereinafter set forth, subject to the provisions of this agreement, upon premiums or instalments thereof on policies issued on applications procured under this agreement, when collected and paid over to General Agent, but commissions on premiums paid in advance will not be payable until the anniversary date of the policy on which the premiums would have been payable.' (Emphasis by the Court.)

21. General Agent may withhold and retain from any commissions due Special Agent a sum sufficient to discharge any debt or to Repay the balance of any advance, due from Special Agent to General Agent; or any legal expense in connection with garnishment proceedings.' (Emphasis by the Court.)

For purposes of disposition of defendant's motion for summary judgment, it is significant to note that neither the petition, answer of defendant nor affidavit of respondent state the manner or amounts in which the alleged advances were tendered by plaintiff. This undisclosed circumstance is of extreme importance and insofar as the record presently discloses, the details regarding this material issue could easily be in dispute between the litigants.

We are in complete accord with defendant's statement of the law as expounded in Landry v. Huber, supra, and Bardwell v. Szatmary, supra . The rationale of these...