Opinion
13652
June 14, 1933.
Before FOSTER, J., County Court, Spartanburg, November, 1932. Affirmed.
Action by Ross G. McConnell against C.E. Baker and another. From an order affirming a judgment of a magistrate in favor of plaintiff, defendants appeal.
The order of Judge Foster, directed to be reported, is as follows:
This case was tried in the Court of Magistrate Fred B. Ballenger, who gave judgment for the plaintiff against the defendants in the sum of $100.00. From this judgment, the defendants appealed to this Court.
From the evidence, it is disclosed that on May 15, 1930, plaintiff and defendants entered into a contract to extend until further notice, whereby the plaintiff became the representative of the defendant J.W. Carter Company as a shoe salesman in western North Carolina.
The plaintiff was to be paid 6 per cent. commission on shoes sold, and J.W. Carter Company agreed to advance the plaintiff $60.00 per week for traveling expenses.
Final settlement was to be made at the end of the shipping season, at which time all advanced amounts were to be deducted from the 6 per cent. commissions earned by the plaintiff. After working under the contract for six weeks, the plaintiff received written notice from the defendants that they would no longer need his services. Thereby the contract was terminated. The defendants advanced the plaintiff $60.00 per week for four weeks, and this suit was brought for advances which plaintiff claims were due under the contract to have been made to him for the last two weeks he worked before receiving notice of discharge. Plaintiff's commissions for the time he worked amounted to $68.39.
At the trial of the case, the defendants entered a general denial, which leaves for this Court the determination of the single question of whether or not the plaintiff under his contract is entitled to the sum of $60.00 per week which the defendants agreed to advance him, regardless of the fact that his commissions did not equal or exceed this amount. It will be noted under the terms of the contract that the advance of $60.00 per week was not to be charged to the plaintiff, but against his earned commissions. In no place does the contract refer to personal liability. For this reason, if the defendants had left the plaintiff in their service for an indefinite period of time and had made an advance to him of $60.00 per week under the contract, no part of such an amount could become a claim against the plaintiff, even though he earned no commissions. This leads directly into the real question presented. Does the plaintiff's contract entitle him to an advance of $60.00 per week for traveling expenses as long as he remained in the employment of the defendants and did what he was required to do under the contract, to wit, "To give all of his time and ability to selling shoes for the J.W. Carter Company, and not to solicit business for any other firm while in the employ of the J.W. Carter Company."
The defendants do not complain that the plaintiff breached his contract with them, but assigned as their reason for terminating the contract that his sales were not satisfactory. This is undoubtedly the reason for the termination of the contract by the defendants. Under the contract, the defendants had a right to terminate it at any time they might desire. This they did not do until the end of six weeks from the making of the contract. As it turned out, this was an unfortunate contract for both parties, but each of them should be held to the performance of their part thereof until it was terminated. For this reason, I think the defendants were required under the contract to advance the plaintiff $60.00 a week as long as they permitted him to remain in their employment unless he had breached the contract or some part thereof. Not having made these advances for two weeks for which the present claim was made, I think the plaintiff was entitled to the judgment which he received at the hands of the magistrate; his claim for $120.00 having been reduced to $100.00 so as to confer jurisdiction upon the magistrate.
I find no case in this State directly upon the point involved, but the reasoning of the weight of authority elsewhere convinces me that the judgment of the magistrate was correct. I have studied in detail cases from other jurisdictions submitted by counsel for plaintiff and defendants. As noted in the case of Richmond Dry Goods Company v. Wilson, 105 W. Va., 221, 141 S.E., 876, 57 A.L.R., 31, engagements of this kind are not to be construed as implying that all the risks were to be taken by the employee, but are to be construed rather as a joint enterprise in which the employee agreed to furnish his time and ability, and the employer agreed to furnish the money necessary to enable the employee to devote himself thereto. Referring to 39 Corpus Juris, page 153, it is noted that under a contract allowing an employee guaranteed periodical advances on a commission account, the employee is entitled to the advance agreed upon at the end of each period, regardless of whether or not the commissions earned up to that time are in excess of the amount withdrawn and notwithstanding the employee has already received notice of his discharge to take effect at the end of the current period.
In effect, I think the contract in question must be taken as a guarantee by the defendants to the plaintiff that the plaintiff would receive an advance of $60.00 per week while the contract was in effect. This amount was not advanced, and the plaintiff has had judgment representing the difference between the amount advanced to him and the amount agreed to be advanced.
Therefore, it is ordered that the judgment of the magistrate be, and the same is hereby affirmed and made the judgment of this Court.
Messrs. Johnston Williams, for appellants, cite: As to contract for payment of traveling expenses: 133 Va., 305; 112 S.E., 607; 75 A., 303. As to recovery of excess payments made under contract: 39 C.J., 153; 141 S.E., 876; 57 A.L.R., 31; 127 A., 309. Messrs. Lanham Lanham, for respondent, cite: Verdict and judgment of magistrate may be reviewed by County Court: 74 S.C. 509; 54 S.E., 1016; 87 S.C. 267; 69 S.E., 390; 102 S.C. 434; 86 S.E., 815. As to appeal to highest Court from both Magistrate and County Court: 3 C.J., 1357; 53 S.C. 539; 31 S.E., 500; 59 S.C. 488; 38 S.C. 126. Employee entitled to guaranteed periodical advances as stated in contract: 39 C.J., 153; 172 N.Y.S., 275; 105 W. Va., 221; 141 S.E., 876; 57 A.L.R., 31.
June 14, 1933. The opinion of the Court was delivered by
This appeal is from an order of Judge Foster of the Spartanburg County Court, which sustains the judgment for the respondent given in the Court of Magistrate Ballenger. The issues properly involved in the case are clearly stated in the order of Judge Foster, and are disposed of in a manner satisfactory to this Court. It is needless to review the authorities which our investigation has found to be applicable. It is sufficient to say that the strong majority opinions of these authorities are in consonance with the conclusions reached by the order of Judge Foster. The annotation attached to the case of Richmond Dry Goods Company v. Wilson, 105 W. Va., 221, 141 S.E., 876, 57 A.L.R., 31-33, and the opinion in that case itself, are especially in point. See, also, 39 C.J., 153, §§ 205, 206.
The exceptions are overruled and the order appealed from is affirmed.
Let it be reported.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICE STABLER and CARTER concur.