While I concur with the majority in its rationale that appellee is obligated to pay appellant the monthly draw for the period from June 15, 1987 to July 15, 1987, which is predicated on the reasoning expressed in the Ohio cases and sister-state authority cited in the opinion, I do not share its view that the pivotal contract language involved in this matter is not ambiguous.
Again, the concept of law expressed in the cases referred to by the majority simply states that unless the evidence demonstrates an express or implied promise to repay a draw against profits, the employee is entitled to the draw even if it is in excess of the profit margin expressed in the agreement. This rule as applied to the facts in this dispute has the effect of singularly deciding this case.
However, it also appears to this writer that there is an equally cogent reason for reaching this result which could, indeed, support this result either independently or in tandem. For example, does the use of the verb "applied" in relation to the draw mean it is to be charged against twenty-five percent of the adjusted corporate net profit, or is it to have a different accounting application? How is the net income to be decreased by management fees to be paid by (not to) KLMV Agency, Inc. to Eastwood? Normally such fees would be credits that would enhance an income or profit posture. How do monthly draws increase the net income to be reflected in the 13th financial statement when common accounting principles declare that such draws would decrease net income? *Page 228
The foregoing interrogatories do not in this writer's view provide an exemplar of non-ambiguity; on the contrary, this makes for a Serbonian bog. Consequently, I conclude that the maxim ambiguitas contra stipulatorem est has definite application against the appellee's drafting of the contract in question to support the conclusion reached by the majority here.