Opinion
Sept. 28, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 605
Jack A. Engles, Denver, for plaintiff in error.
Wood, Ris & Hames, David M. Bryans, Denver, for defendant in error.
ENOCH, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This appeal concerns a suit by Travelers Insurance Company (Travelers) to recover from a former agent, Robert F. Slabodnik (agent), an alleged excess of advances paid, over commissions earned. Trial was to the court without a jury. Judgment was entered for Travelers in the amount of $3,500.
The central issue presented in this appeal is whether the agent is personally liable to Travelers for advances made in excess of commissions earned.
In August 1961, a contract was entered into between Travelers and the agent. This contract established the agent's right to sell Travelers' insurance, set forth the percentage of commissions to be paid, and identified the agent as 'Robert Francis Slabodnik, dba The Slabodnik Insurance Agency.' In August 1961, the same parties executed an 'Advance Payment Agreement,' under which Travelers advanced $95 per week to the agent. These payments continued until the contractual relationship between the parties was terminated in the spring of 1964. Travelers alleged that after crediting to the agent's account all commissions earned, as provided for in the agreement, there was a balance due from the agent in excess of $4,600. The agent's position is that the advances were in the nature of a salary, and Travelers' right of repayment is limited to earned commissions.
I
Regular advances to an agent are presumed to be in the nature of compensation. In the absence of an express or implied agreement to the contrary, advances in excess of earned commissions are not recoverable. Nu-Tone Products Company, Inc. v. Markham, Colo., 481 P.2d 719. Badger v. Nu-Tone Products Co., 162 Colo. 216, 425 P.2d 698. In the present case, the trial court found there was an explicit agreement between the agent and Travelers, making the agent personally liable for the amount of the advances. Such was the case in Nu-Tone Products Company, Inc. v. Markham, Supra. We concur in the determination made by the trial court.
The 'Advance Payment Agreement' entered into between the parties reads in part as follows:
'4. In event of the termination of contractual relations with the Agent before all indebtedness due to advances has been paid it is agreed that:
(a) * * *
(b) * * *
(c) Should the Agent be unable to pay in full the indebtedness then outstanding, the Company will consider a reasonable workout arrangement for its repayment, which may include, in addition to the company's right of set-off, regular cash payments to be made by him.'
This language is unambiguous. The agent not only agreed to repay Travelers for the advances from earned commissions, but also agreed, as the trial court found, that any balance due upon termination of the agency agreement would be repaid personally. The language is sufficient to give the agent notice of his personal liability.
There was additional evidence to support the trial court's conclusion. The agent signed a receipt for each advance which included a promise to repay and there are letters in evidence signed by the agent admitting the indebtedness and agreeing to a repayment plan. There was at trial conflicting testimony as to the intent of the parties concerning the effect of the receipts and the letters, as well as conflicting evidence concerning the amount due. However, as has been stated many times, the appellate court will not disturb findings of fact and conclusions made by the trial court if there is evidence to support the same. Adler v. Adler, 167 Colo. 145, 445 P.2d 906.
II
It is alleged that the trial court erred in considering the weekly receipts executed by the agent for each advancement as promissory notes. A reading of the trial court's findings, however, shows that it specifically did not so rule.
III
The agent alleges several procedural errors relating to admission of evidence. When the trial is to the court and the findings of the trial court are supported by competent evidence, it is presumed on review that all immaterial and incompetent evidence was disregarded by the court in reaching its conclusions. Howard v. International Trust Co., 139 Colo. 314, 338 P.2d 689, cert. denied, 361 U.S. 916, 80 S.Ct. 258, 4 L.Ed.2d 184.
One alleged procedural error is the admission of two letters signed by the agent in which he acknowledged the indebtedness to Travelers. The agent claimed they were signed under threat of cancellation of all his policies and not of his own free will. The court heard conflicting evidence on this issue and there is sufficient evidence to support the admission of the documents. We also find no reversible error in the admission of certain other exhibits complained of by the agent. Our examination of the record discloses sufficient competent evidence supporting the trial court's conclusion.
Another alleged error concerns the use of a deposition. While under contract with Travelers, the agent was involved in an automobile accident. In a suit against the other party in the accident, the agent stated in a deposition, taken at that time, the part of his damages was a substantial loss of commissions. In the present case, the agent also alleged a loss of commissions, blaming it on the conduct of Travelers. The agent's prior sworn statement on a related or relevant subject was properly admitted for purposes of impeachment. See Bishop v. People, 165 Colo. 423, 439 P.2d 342.
The agent also alleged as error the court's refusal to allow other former agents to testify as to their relationship with Travelers and the experiences they had tending to show the alleged lack of good faith and plan and design in Travelers' operation. The record does not support this contention. The record reveals that former agents were allowed to testify quite extensively. On two occasions counsel for Travelers tried to limit the scope of the examination of these former agents in this area and both times the objection was overruled.
A final allegation of error is that the trial court failed to make specific findings of fact and conclusions of law in the denial of the agent's counterclaim. The record supports the trial court's final determination. Any deficiency in the court's findings at the conclusion of trial was remedied in the order denying the motion for a new trial. The court ruled that the claim 'was not supported by any convincing evidence either in theory or as to any specific amount.'
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.