Valoco Bldg. Products, Inc. v. Chafee

• Decision Date: 22 November 1966
• Docket Number: No. CV,CV
• Citation: 231 A.2d 101,4 Conn.Cir.Ct. 322
• Court: Connecticut Circuit Court
• Parties: VALOCO BUILDING PRODUCTS, INC. v. George CHAFEE. 9-643-1663.

Page 101

231 A.2d 101

4 Conn.Cir.Ct. 322

VALOCO BUILDING PRODUCTS, INC. v. George CHAFEE.

No. CV 9-643-1663.

Circuit Court of Connecticut, Ninth Circuit.

Nov. 22, 1966.

Thomas C. Cambria, Middletown, and Morton H. Greenblatt, Meriden, for plaintiff.

Irwin D. Mittelman, Middletown, for defendant.

JOCOBS, Judge.

This is an action on the common counts, with an amended bill of particulars, by an employer to recover from a former salesman the amount by which the advances which were made to the salesman from January, 1963, through May 18, 1963, exceeded the commissions he earned during that period. The plaintiff was engaged in the business of selling storm windows, awnings, shutters, patio covers, aluminum siding and other building products. In the early part of January, 1963, the plaintiff employed the defendant as one of its salesmen under an oral agreement. The date of the defendant's severance from his employment may be fixed at May 18, 1963, although in view of the findings on the legal issues and conclusions the exact date of severance is not material. Upon defendant's separation, it was discovered that the defendant, during his period of employment, earned commissions from the sale of the plaintiff's products in the amount of $718.19; the amount of his 'draw' during the same period totaled $1705. This action was brought to recover of the defendant the moneys advanced to him in excess of the commissions earned by him.

The issue is whether the advances made by the employer to the salesman represented an unconditional obligation requiring repayment or a conditional obligation to be repaid from commissions earned.

Connecticut has adopted the majority rule that, where advances made to a salesman are charged against commissions earned, he is not required to pay any excess of advances over commissions unless it has been expressly or impliedly agreed that he do so. Sutton v. Avery, 132 Conn. 397, 399, 44 A.2d 701, 165 A.L.R. 1364; Roxy Furniture & Novelty Co. v. Brand, 106 Ga.App. 104, 126 S.E.2d 295; Hibbs-Kiefer Hat Co. v. Schneiderhan, 236 Ky. 470, 33 S.W.2d 304; Perma-Home Corporation v. Nigro, 346 Mass. 349, 352, 191 N.E.2d 745; Selig v. Bergman, 43 Wash.2d 205, 260 P.2d 883; Richmond Dry Goods Co. v. Wilson, 105 W.Va. 221, 141 S.E. 876, 57 A.L.R. 31; Shaler Umbrella Co. v. Blow, 199 Wis. 489, 227 N.W. 1; 3 Am.Jur.2d, Agency, § 218; 56 C.J.S. Master and Servant § 120, p. 561; notes, 57 A.L.R. 33, 165 A.L.R. 1367; 2 Labatt, Master and Servant (2d Ed.) § 461(4), p. 1358; cf. Restatement (Second) 2 Agency § 382, comment d.

In Perma-Home Corporation v. Nigro, supra, the Supreme Judicial Court of Massachusetts adopted the rationale advanced in Shaler Umbrella Co. v. Blow, supra, 199 Wis. 491, 227 N.W. 1, where the Wisconsin court said: 'The reasoning supporting the conclusion that there is no personal liability on the part of the agent for excess advances may be epitomized as follows: An undertaking whereby an employer sends out an agent to work upon a commission is in the nature of a joint adventure from whch both hope to profit. The employer profits by the development and enlargement of its business and the agent by remunerative employment. The undertaking may prove a success or a failure. If the agent be required to repay all the advances made in excess of his commissions earned, the entire risk of the adventure is his, and a construction leading to this result will not be indulged where there is no express agreement on the part of the agent to repay such excess.' ¹ See also Larson v. Watzke, 218 Wis. 59, 61, 259 N.W. 712, 713; Union Central Life Ins. Co. v. Balistrieri, 19 Wis.2d 265, 268, 120 N.W.2d 126 (reaffirming the doctrine laid down in Shaler Umbrella Co. v. Blow, supra).

The New Jersey court in Joseph Toker, Inc. v. Cohen, 67 N.J.Super. 68, 74, 169 A.2d 838, followed its earlier case of Roofing Sales Co. v. Rose, 103 N.J.L. 553, 137 A. 211: 'The principle first enunciated in this state in Roofing Sales Co. v. Rose, supraIs firmly established in our jurisprudence. * * * It is premised, first of all, upon the unspoken assumption that the superior bargaining power of the employer vis-a -vis his agents warrants imposing upon him the duty of making explicit his rights under an employment agreement-especially where he demands the return of previously transferred funds. Secondly, there is the settled judicial reluctance to cause a 'forfeiture' of property already received unless it convincingly appears that such a result was intended by the parties. The rule, articulated in terms of contractual intent, is thus one of implication or presumption, properly placing the burden of overcoming it upon the party seeking repayment. In the absence of express stipulation or convincing circumstances indicating a contrary arrangement, advances to...