Shushan Bros. & Co. v. Ortego
| Decision Date | 18 February 1964 |
| Docket Number | No. 1042,1042 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | SHUSHAN BROTHERS & COMPANY, Inc., Plaintiff and Appellee, v. James R. ORTEGO, Defendant and Appellant. |
Fusilier, Pucheu & Soileau, by J. William Pucheu, Ville Platte, for defendant-appellant.
Steeg & Shushan, by Rader Jackson, New Orleans, for plaintiff-appellee.
Joseph LaHaye, Opelousas, for plaintiff-appellee.
Before FRUGE , HOOD and CULPEPPER, JJ.
This is a suit on a promissory note. Plaintiff is the payee, holder and owner of the note. Defendant is the maker. The district judge held in favor of the plaintiff. Defendant appeals.
The facts show that plaintiff, Shushan Brothers & Company, Inc., sells various lines of merchandise at wholesale. In November of 1960 they employed defendant as a salesman to sell a certain line of merchandise in South Louisiana. Defendant first went through a training period of about two months at that plaintiff's place of business in New Orleans, during which period he was paid a salary of $60 per week. Then defendant 'went on the road' to sell the merchandise. The primary issue in this litigation is the nature of the agreement between plaintiff and defendant as to the manner in which defendant was to be paid for his services while 'on the road'. Plaintiff's witnesses, Mr. David F. Shushan, general manager, and Mr. Roy E. Templet, secretary and treasurer, testified they were present when the oral contract of employment was made. They testified it was agreed that Mr. Ortego would receive a salary of $60 a week during his training period in New Orleans but, when he went out on the road, he would receive an advance of $100 a week, which was to be charged against any commissions he earned and that, if these advances exceeded his commissions, he was to be personally liable for the difference.
On the other hand, defendant testified the agreement was that he would receive a guaranteed advance of $100 per week, which he would not have to repay, except out of any commissions which he earned.
Defendant went on the road about January 23, 1961. The ledger sheet of defendant's account shows that, from the very beginning, his advances exceeded his commissions. Plaintiff became concerned about defendant's failure to earn sufficient commissions to offset the amount of the advances. On April 21 defendant was called in to the home office and requested to sign the note herein sued on, in the sum of $537.79, to 'balance his account'. The ledger sheet filed in evidence shows that actually a balance of $537.79 was owed by defendant on April 7, 1961, and that on April 21 he owed $837.79, but plaintiff's witness, Mr. Templet, explained that the bookkeeping was simply 14 days behind.
Defendant admits he signed the note and that it represented the excess of his advances over commissions earned, but he testified he was not advised that he would have to repay the note except out of commissions and that he understood this was the only source from which he would have to pay the note.
About one week after defendant signed the note, his services were terminated. Following defendant's discharge, additional credits for commissions earned were entered on his account with the final result that on September 7, 1961 the account showed a balance due by defendant in the sum of $559.14.
There is no dispute as to the law. The jurisprudence is well established that an excess of advances to an employee, over actual commissions or profits earned, cannot be recovered by the employer, in the absence of an express or implied agreement by the employee to repay such excess. See Landry v. Huber, 138 So.2d 449 (3rd. Cir.App.1962) and the many authorities cited therein. It is also settled that a contract of employment may provide for repayment of advances only from commissions earned. Williams v. Ligon, 144 So.2d 131 (4th Cir.App.1962) and cases cited therein.
We find no manifest error in the trial judge's conclusion that there was an express agreement by the employee to repay the excess and that this excess was not payable only out of commissions earned. We think the lower court correctly attached particular significance to the fact that defendant signed the promissory note for the amount of the excess as of April, 1961. This strongly corroborates plaintiff's interpretation of the agreement. In reaching this conclusion, we also rely on the will established principle of law that the trial judge, who sees and hears the witnesses, is in a better position than the appellate court to give proper weight to their testimony.
The next issue concerns imputation of payments. Defendant contends that all commissions which he received after the date of the note, April 21, 1961, should be imputed to the note. Using this method of computation there would be a balance due of only $149.61 on the note. Plaintiff contends there is only one debt, i.e., the open account, and the note represents the final balance due on September 7, 1961, in the sum of $559.14, which amount actually exceeds the amount of the note.
The facts show that plaintiff kept an open account in defendant's name. It entered each week as 'char...
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