The making of advances to a salesman against future commissions create no legal obligation on his part to repay them; and, in the absence of an express or implied agreement on the part of the salesman to repay to his principal and employer any excess of the weekly advance made to him over the commission earned by the salesman, such principal and employer is not entitled to recover such sum from the salesman employee.

Valdosta Roofing & Supply Company (hereinafter called the plaintiff) instituted suit in the City Court of Albany against R. W. Lawrence (hereinafter called the defendant), seeking judgment against the defendant for $463.83 principal and interest since December 13, 1951, on open account. The defendant answered and denied that he was indebted to the plaintiff in the sum sued for or otherwise. The case proceeded to trial, and the evidence of the plaintiff tended to show the following facts: B. F. Simon testified that lee was general manager of the plaintiff company, a roofing contractor; that he employed the defendant by oral contract, and the agreement was for the defendant to sell a job and the plaintiff and the defendant were to split the profit on that job; that to the job was charged the cost of labor, material, and drayage, and then there was added 15 percent for the plaintiff's overhead, and the remaining profit was divided; that, for instance, if a job ran $200 and the cost and overhead came to $115, the profit was $85, and the defendant would receive half of that sum; that the defendant worked for the plaintiff around ten months, doing no labor, but procuring jobs for the plaintiff company to perform, but after he sold the job and turned it in to the plaintiff, he was to be through with it; that the defendant was living in Fitzgerald when the plaintiff company employed him on the above basis; that "our agreement with Mr. Lawrence was--he said he had a family to keep up and he wanted us to advance him $65 a week, and we agreed to advance him $65 a week"; that this "was not a salary" but "an advance or loan, and, as the jobs were sold, that $65 a week came back" to the plaintiff; that the defendant was credited with the jobs, that is, the contracts obtained by him for the plaintiff company, and he was "charged with the $65 a week"; that "he never complained about that"; that he resigned, stating "he had a better job and that was the reason he was resigning"; that the plaintiff "advanced him $65 a week from January 10th to October 11th"; that the defendant has received credit for every contract which he obtained for the plaintiff, and the records of the plaintiff show what the defendant is due on each contract or job, and that, when the defendant left the plaintiff's employment on October 11, 1951, he owed the plaintiff $463.83, being the amount for which suit is brought.

There was a letter from the defendant to the plaintiff, dated December 8, 1951, in which the defendant wrote "in reference to amount I am in arrears, I intended to work it off. You see I have a lot of money invested in the prospects I have over there and I would like to sell enough to retire the amount."

Upon the conclusion of the plaintiff's evidence, the defendant moved the court to grant a nonsuit, which motion the court sustained, and to this judgment excepts directly to this court.

Code 110-310 provides: "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." The plaintiff brought the present suit against the defendant on open account to recover the difference between the total of the weekly sums ($65 a week) advanced to the defendant by the plaintiff and the amount of the profit coming to the defendant from the contracts procured by him for the plaintiff. The defendant was a salesman and the plaintiff a roofing contractor. The remuneration of the defendant for the sale of contracts for the plaintiff company to perform consisted of one-half of the profits of each job or contract procured by him for the plaintiff. The defendant worked for the plaintiff on this basis for ten months and then resigned. When the defendant terminated his employment with the plaintiff, it had advanced to him in weekly sums $463.83 more than the defendant had earned as his portion of profits or commissions on the contracts procured by him for the plaintiff.

"Where a principal advances money to his agent on a drawing account against his commission to be earned as a salesman for selling merchandise, and his commission does not amount to the sum advanced, the employer cannot, in the absence of an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover such excess from the employee." Smith v. Franklin Printing Co., 54 Ga. App. 385 (187 S. E. 904), citing 2 C. J. 787, 39 C. J. 153, and 2 Am. Jur. 229. See Fried v. Portis Brothers Hat Co., 41 Ga. App. 30 (152 S. E. 151), to the effect that such weekly advancements, though to be charged to the commissions to be earned by the salesman and deducted therefrom, "are nevertheless unconditional payments for services rendered, irrespective of the amount of commissions which the employee may earn." In the absence of a contractual obligation, "the making of advances to a salesman against future commissions creates no legal obligation on his part to repay them." Annotation 165 A. L. R. 1364 and cit. In Sutton v. Avery, 132 Conn. 397 (44 Atl. 2d 701), the Supreme Court of Connecticut said that in its strictly etymological significance the "advance" of money would not imply a loan of money.

Admitting all the facts proved and all reasonable deductions from them, the plaintiff failed to make out a case authorizing it to recover from the defendant the sum sued for, and the trial court did not err in sustaining the motion of defendant, made at the conclusion of the plaintiff's evidence, for the grant of a nonsuit.

The fact that the defendant had in a letter to the plaintiff stated, "in reference to the amount I am in arrears. I intended to work it off. You see I have a lot of money invested in the prospects I have over there and I would like to sell enough to retire the amount," does not imply any contractual obligation, express or implied, on the part of the defendant to repay to the plaintiff the sums advanced by the plaintiff to him.

The trial judge properly granted the nonsuit.

Judgment affirmed. Townsend and Carlisle, JJ., concur.