dissenting. "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 sums advanced, the employer cannot, in the absence of an express or implied agreement or promise to repay any excess of advances over the commissions earned, recover such excess from the employee.” Valdosta Roofing &c. Co. v. Lawrence, 89 Ga. App. 168, 170 (79 SE2d 10). In the present case the defendant regularly received sums of between $300 and $500 in consecutive months in addition and varying according to commissions paid him, which commissions were paid from one to six or more months after the sales to which they were credited were made. Plaintiff entered these checks in his business books under the head of "Advance Commission Account.”
His positive testimony was that there was no discussion at the time of the employment contract about whether or not Alexander was entitled to a drawing account or the amount of it. He simply paid out stated amounts each month which he carried on his books as a drawing account. The cases cited in the majority opinion make it clear that under this statement of the case, which is the one most favorable to the appellant, the money must be treated as a draw, and also that in the absence of an agreement to the contrary such a drawing account is not recoverable where it exceeds commissions earned. The majority opinion is placing the burden on the employee to prove a specific agreement or pay back the money where the law puts the burden on the employer to prove a contrary agreement if he seeks repayment. The mere fact that the employer characterized the drawing account as a "per*222sonal loan” adds nothing to the testimony, since he recognizes it as a business expense. The direction of the verdict should be affirmed.
I am authorized to state that Presiding Judge Jordan and Presiding Judge Hall concur in this dissent.