Martin Milling Co. v. Evelyn
| Decision Date | 09 July 1965 |
| Docket Number | No. 35913,35913 |
| Citation | 136 N.W.2d 177,179 Neb. 31 |
| Parties | MARTIN MILLING CO., a Corporation, Appellant, v. Larry EVELYN, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In creating an account stated, as in making any other agreement, the minds of the parties thereto must meet and understand that a final adjustment of the respective demands of each upon the other is being made.
2. In the absence of an agreement to the contrary the making of advancements to a salesman against future commissions creates no legal obligation on his part to repay them.
Wright, Simmons & Hancock, Scottsbluff, for appellant.
Marvin L. Holscher, Scottsbluff, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
Involved herein is the question whether plaintiff can recover advances made to the defendant in excess of commissions earned in the absence of a specific agreement for such recovery.
Defendant, Larry Evelyn, entered the employ of plaintiff, Martin Milling Co., as a salesman on a commission basis in September 1958. He was so employed until approximately April 1, 1962, when plaintiff, without notice to the defendant, went out of business, thus terminating his employment.
Previous to April 1, 1961, defendant had a drawing account of $162.50 per week. At that time, he had received advancements of $8,540.98 in excess of his commissions. About April 1, 1961, the parties entered into a new agreement, exhibit 2, whereby the advancements were to be reduced to $75 per week, and the plaintiff agreed, among other things, as follows:
Between April 1, 1961, and April 1, 1962, the defendant earned commissions of $6,986.04, and received advancements of $3,625, so that his commissions exceeded his advancements by $3,361.04. The parties stipulated that defendant's second mortgage, referred to in exhibit 2, was in the amount of $3,500.
On January 27, 1962, the defendant signed the following form, exhibit 3, which had been sent to him by the plaintiff's auditors:
'Dear Sirs:
'According to our records, the balance receivable from you as of 1/27/62 was $6,611.62. If this agrees with your records, please sign this confirmation form in the space provided below; if it does not agree with your records, do not sign below but explain and sign on the reverse side. In either case, please return this form directly to our auditors, Haskins & Sell, 912 First National Bank Building, Omaha 2, Nebraska, for their use in connection with an examination of our accounts. A stamped and addressed envelope is enclosed for your reply.
'Martin Milling Co.
'SIGN HERE if above is correct.
(If incorrect, do not sign here but explain and sign on reverse side.)
'Larry Evelyn (Signed)
'By Larry Evelyn (Signed)
'(Larry Evelyn)
Box 313
(Gering, Nebraska)
THIS IS NOT A REQUEST FOR PAYMENT'
Plaintiff in this action sued for the balance due, after applying the $3,361.04, on advancements of $5,643.14. The defendant cross-petitioned for the $3,361.04. The trial court entered judgment for defendant for $3,361.04 with interest. We affirm that judgment.
It is plaintiff's position that exhibit 3 is an account stated between the parties. We do not so construe it. It is merely a statement to plaintiff's auditors that defendant had received advancements of $6,611.62 in excess of commissions, and nothing more. To constitute an account stated, there must be a showing that the parties had reached an understanding as to the...
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...of the account. There was no mistake, fraud, or similar element involved.") (emphasis added). See also Martin Milling Co. v. Evelyn, 179 Neb. 31, 33, 136 N.W.2d 177, 178 (1965). Because LBL and Edwards did not enter the 1986 Indebtedness Agreement with knowledge of the same material facts, ......
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