Wrought Iron Range Co. v. Young , 76 Ark. 18 ( 1905 )

Riddick, J.,

(after stating the facts.) The plaintiff was employed by the defendant for the years 1897, 1898 and 1899 to have supervision of salesmen selling ranges manufactured by defendant. He sued for commissions due him for the years 1897 and 1898, but it appeared that during the year 1899 plaintiff had overdrawn his account, and that, if the account for 1899 be considered, and plaintiff charged with the amounts advanced to him by defendant during that year, it will materially reduce the amount due from defendant to plaintiff. While the services performed by plaintiff for defendant were continuous during the years named, they were performed under separate contracts; but it is clear, we think, that the amounts due by plaintiff to defendant on the account of 1899 Can be used as a setoff against the sums, due from defendant to him on the accounts for the years 1897 and 1898. When the accounts for all these years are considered, it seems quite clear that the judgment in this case is excessive, for, if every item claimed by plaintiff is allowed, when the accounts for 1899 are considered, the judgment is still much too large.

Again, the contract under .which plaintiff performed the services for defendant stipulated that he should not permit any man under his supervision to overdraw the monthly allowance due him for his work; and that in the event of such overdraft the same should be charged to the account of the plaintiff. Now, the evidence showed that the men under the supervision of plaintiff retained from time to time various sums collected by them in excess of the amounts due them for their work, and it became a material question in the case as to whether these sums should, under the contract, be charged to plaintiff, and the loss be borne by him, if the sums were never refunded by such salesmen. On this point, we think the court correctly stated the law in his ■first instruction, in which he said that if those sums were appropriated by the salesmen to their own use without the permission, knowledge or consent of the plaintiff before such sums reached his hands, such retention did not constitute an overdraft within the meaning of the contract. But he refused to give the fifth Instruction asked by defendant, in which the converse of that proposition was stated, to the effect that, if plaintiff did permit salesmen to retain out of the moneys paid them on account of sales more than their monthly allowance, then, under the terms of the contract, he was chargeable with such amounts as overdrafts. The refusal to give this instruction, we think, was error prejudicial to the defendant, because, under the facts of this case, It was a question for the jury to determine whether the plaintiff consented to the retention of such amounts by the salesmen under his supervision. If he did consent to the retention by salesmen of sums in excess of their monthly allowance, he was in effect permitting them to overdraw their accounts, and he became liable for such sums under his contract.

For the reasons stated, the judgment will be reversed, and the cause remanded for a new trial, with leave for either party to amend his pleadings so as to include accounts of 1899. It is so ordered.