
    No. 10,789
    Orleans
    JEFFERSON MOTOR CO. v. DAUNER
    (April 11, 1927. Opinion and Decree.)
    (April 21, 1927. Rehearing Refused.)
    (Syllabus by the Court)
    
    1. Louisiana Digest — Appeal—Par. 625. Where the sole question in the case is one of fact, the findings of the lower court will not be disturbed, unless the discretion of the court has been abused.
    Appeal from First City Court, Division “A”. Hon. W. A- Bahns,, Judge..
    Action by Jefferson Motor Company, Inc., against Edward M. Dauner.
    There was judgment for plaintiff and defendant appealed.
    Judgment ’ amended and reconventional demand dismissed as of non-suit.
    F. B. Freeland, of New Orleans, attorney for plaintiff, appellee.
    
      Geo. D. Smart, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This case presents purely a question of fact. The plaintiff sued to recover one hundred and forty-five ($145.00) dollars alleged to have been loaned to the. defendant. The defendant admits receiving the one hundred and forty-five ($145.00) dollars, but sets up that it was not a loan, but was paid as advances, which were not to be returned, unless he made enough in commissions from his automobile sales to balance the account.

As defendant admits that the amounts were "advances against commissions”, and as the record shows the invariable custom of plaintiff with all the salesmen, including defendant, at times past was to consider these advances as loans, we think the trial court has correctly decided the issue, except for one item as follows:

This record shows that defendant is entitled to a credit of twenty-one and 90-100 ($21.90) dollars as commission on a Ford car sold by him.

It is ordered, adjudged and decreed that there he judgment in favor of plaintiff, Jefferson Motor Company, Inc., and against defendant, Edward M. Dauner, condemning the said Edward M. Dauner to pay unto plaintiff herein the full sum of one hundred and forty-five ($145.00) dollars, with legal interest from judicial demand until paid, subject to a credit of twenty-one and 90-100 ($21.90) dollars, with legal interest from judicial demand.

It is further ordered, adjudged and decreed that the reconventional demand filed by the defendant be and the same is hereby dismissed as in case of non-suit.  