
    Max Schlesinger, Respondent, v. Wolf Burland and Sarah Goldstein, the Name Sarah being Fictitious, etc., Appellants.
    (Supreme Court, Appellate Term,
    December, 1903.)
    Employers’ contract to make a salesman “advances” to be deducted from his commissions — Construction — Insufficient counterclaim.
    An agreement to “ advance ” money, to further one’s own purposes, does not import an expectation of a return of the money by the person to whom it was advanced unless a promise to repay is expressed in or can fairly be implied from the agreement.
    Where employers contract in writing to pay, for one year, a salesman commissions of ten per cent, on his gross sales and “advance” him $250 monthly besides his necessary traveling expenses- and the contract further provides that both “ advances ” and traveling expenses are to be charged to and deducted from his commissions computed at the end of the period of employment, the employers cannot successfully interpose, to the salesman’s action for the sixth and seventh monthly “ advance ”, a counterclaim alleging that they have made him advances in excess of commissions, first, because, regarding the advances as a loan to the salesman agreeably to the contention of the employers, the loan is not to mature until the employment ends, and, second, because, regarding the advances, in their true character, as moneys paid in advance by the employers to further their business, it cannot be assumed, in the absence of any promise in the contract upon the part of the salesman to repay, that he agreed to apply, to the advances made him, any more than his commissions earned.
    
      Appeal from an order and a judgment of the City Court of the city of Eew York, which sustained a demurrer and dismissed the defendants’ counterclaim.
    Wasserman and Jacobus (Emanuel Jacobus and I. Balch Louis, of counsel), for appellants.
    Eichols, Joseph & Cahn (Geo. Edwin Joseph, of counsel), for respondent.
   Bisohoee, J.

It is clear from defendants’ brief that counsel have mistaken the plaintiff’s cause of action. It was not to recover commissions alleged to have accrued under the agreement, but for two installments of $250 each, due respectively, February 1, and March 1, 1903, upon an agreement in writing, which, there being nothing to the contrary in the complaint or counterclaim either by way of express allegation or intrinsic reference (Cragin v. Lovell, 88 N. Y. 258), must be deemed to have been continuing and undetermined. Such at least was the theory of the plaintiff’s cause of action, and the situation was apparently unchanged at the time of the hearing and decision of the demurrer.

By this agreement the defendants, copartners in business, assumed to employ the plaintiff, as their traveling salesman, for the period of one year, beginning on the 1st day of September, 1902; and pursuant to the terms of that agreement the plaintiff was to receive for his services ten per cent, of the gross amount of the sales effected by him, and the defendants were to “ advance ” him $250 monthly, besides his necessary traveling expenses. It was further thereby provided that “said advances and traveling expenses ” should “ be charged to and deducted from the commissions of” the plaintiff, “computed at the end of the period of employment.” To the plaintiff’s cause of action the defendants asserted a counterclaim of a sum alleged to have been “ advanced ” in excess of the amount of the plaintiff’s commissions. Upon demurrer thereto for defect in substance, the counterclaim was dismissed.

A demurrer for insufficiency to new matter in the answer requires that such matter, as well as the matter alleged in the complaint, to which the answer is pointed, be taken as admitted. Douglas v. Coonley, 156 N. Y. 521, 528.

Applying this rule to the state of the record before us, the conclusion of the court below is not well open to the charge of error. We may assume for the moment, agreeably to the contention of the defendants, that the advances” made by the defendants were intended by both parties as a loan to the plaintiff, for the repayment of which he was personally bound, and it would remain that by the terms of this very, agreement the loan was not to mature, or the money to be repaid, before the employment had come to an end. Without anything, therefore, to show that the agreement was determined by expiration of time, or otherwise, it did not appear that the loan had matured, and that the amount thereof was payable, and so, clearly, it was not available to the defendants for the purposes for which it was pleaded at the time. ¡No cause of action thereon had accrued.

But we are of the opinion that the “ advances ” were not intended as a loan to the plaintiff, and that it was not the intention of the contracting parties when the agreement was made, that he should be personally bound for the repayment thereof, except to the extent of his commissions earned. Hence leave to the defendants to amend by alleging the end of the employment, if such is claimed to be the fact, could be of no avail to them.

In its strictly etymological significance the advance ” of money would not imply a loan. Cent. Diet., Advance;” 1 Am. & Eng. Encyc. of Law (2nd ed.), 757. We speak of an advance ” of wages, an “ advance ” of salary, yet no one would regard this as a loan of so much money to the employee which he has promised or is expected to repay. Again, for the purposes of a joint adventure, one agrees te give his services, and the other to “ advance ” the capital required. ¡No one would consider the former bound to repay the capital advanced ” out of his own means. Hence, without a promise to repay, express, or fairly to be implied from the agreement under which the “ advances ” were made, a promise to advance ” money for a particular purpose, as here, the furtherance of the defendants’ business, does not import an expectation of its return personally by the person to whom the money was “ advanced.” Unquestionably, it may have the meaning of a loan if the verb is used in connection with a promise, express or implied, to repay the money. Upon an agreement somewhat like the one under discussion, it was held in Northwestern Mutual Life Insurance Co. v. Mooney, 108 N. Y. 118, that the particular meaning of the verb “ advance ” was to be ascertained with reference to the text in connection with which it was used, and that unless the latter manifested an intention of repayment by him to whom the money was “ advanced,” a promise to “ advance ” it did not import reliance upon, the personal credit of the promisee, so as to constitute the latter the debtor of the promisor. Here, as in the case last above alluded to, we find no express promise by the plaintiff to repay the money advanced.” The agreement does contain a provision to the effect that at the end of the period of employment, the defendants should have resort for reim- . bursement to the plaintiff’s accrued commissions, but it will not be seriously contended that this is a promise by the plaintiff to apply more than the amount of his commissions toward the repayment of the moneys advanced.” In effect, the presence of the last mentioned provision points to the mutual intention of the parties that the commissions should constitute a fund which alone should be resorted to for reimbursement of the “ advances.” "We are to give reasonable meaning, if possible, to every part of the agreement, rather than to hold a particular clause thereof wholly without import. Flanagan v. Fox, 6 Misc. Rep. 132; affd., 144 N. Y. 706.

Without this provision for resort to the commissions, the defendants would have had the right to offset any indebtedness of the plaintiff to them. To say, therefore, that the provision did not mean more would be equivalent to saying that it did not mean anything. In order to give reasonable effect to it, we are constrained to hold that the parties intended the commissions to be the sole means of reimbursement for “ advances,” and this, of course, precludes the implication of any promise on the part of the plaintiff to be answerable for the amount of “ advances ” in excess of the amount of his commissions.

The order and judgment appealed from are affirmed, with costs.

Ebeedmah, P. J., and Blanchard, J,, concur.

Order and judgment affirmed, with costs.  