
    41373.
    BILES v. HOME INTERIORS & GIFTS, INC.
    Submitted June 9, 1965
    Decided June 22, 1965.
    
      Charles H. Wills, Paul C. Myers, for plaintiff in error.
    
      T. Charles Allen, contra.
   Hall, Judge.

The plaintiff corporation filed an action alleging that the defendant was indebted to it on an account as stated in an exhibit attached to the petition in the amount of $1,801.97. The trial before the court without a jury resulted in a judgment for the plaintiff for this amount. The defendant assigns error on the final judgment and on the antecedent judgment overruling her general demurrer to the petition. Held:

The largest item of the account was an excess of advances made by the plaintiff to the defendant over commissions earned by the defendant as a sales employee of 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 commission earned, recover such excess from the employee.” Valdosta Roofing &c. Co. v. Lawrence, 89 Ga. App. 168 (79 SE2d 10); Foster v. Union Central Life Ins. Co., 103 Ga. App. 420 (119 SE2d 289); Roxy Furniture &c. Co. v. Brand, 106 Ga. App. 104 (126 SE2d 295); Kennesaw Life & Accident Ins. Co. v. Hendricks, 108 Ga. App. 148 (132 SE2d 152); 3 Am. Jur. 2d 592, § 218; 165 ALR 1364. The evidence in this case did not support a finding that there was an express or implied agreement or promise to repay any excess of advances over commissions earned. For this reason the judgment was erroneous. The trial court did not err in overruling the defendant’s general demurrer.

Judgment reversed.

Bell, P. J., and Frankum, J., concur.  