Plaintiff sued the defendant for the sum of $1,200, unearned salary as agent, on the ground that he was discharged without just cause before the expiration of the-term of the employment, and for the further sum of $10,000 as damages for alleged slander.
For answer, after pleading the general issue, the defendant admitted the employment of the plaintiff as agent, but averred that the employment was by the month, at a salary of $250, and further averred that the plaintiff was discharged for just causes, to wit, overdrawing his account, by the sum of $513.99; drawing a check for $1,500 to his own order, and having the same certified, and charged to defendant, in anticipation of his discharge, and demanding and receiving rebates or refunds from sundry persons with whom plaintiff contracted as agent of the de-. fendant. Defendant specially denies the alleged slander with intent to defame and jure the plaintiff, and avers that the statements of its vice president as a witness before the Port Investigation Committee were privileged communications, and were absolutely true as matters of fact.
Defendant reconvened and prayed for judgment against the plaintiff for $5.13.99, and for the rebates or refunds set forth in the answer; the total amounting to $782.04.
There was judgment rejecting plaintiff’s-demands, and in favor of the defendant for the full amount of the reconventional demand. Plaintiff has appealed.
The trial judge found that there was a shortage in plaintiff’s account as agent of the defendant as alleged in the answer, but in his written opinion says:
“The court emphatically states that it finds no evidence in the record that the plaintiff was short on a settlement of accounts in a criminal sense; but the fact is he believed he had the right under his contract and by agreement to' *401charge the items making up the shortage against the defendants. In this plaintiff was in error.?’
An auditor examined the books of the plaintiff and made a tentative report, omitting certain items for the time being. After further inquiry and investigation, the auditor made a report showing a balance of $618.30 due by the plaintiff. Before the answer was filed, additional credits were allowed by' the defendant, reducing such balance to $513.99.
In plaintiff’s brief, on pages 17 and 18, the tentative report of the auditor is assailed, and a list of credits given as disallowed by the auditor. As a matter of fact, the item of salary — September and October — $500 is allowed in the’ account annexed to the answer in lieu of a smaller amount of commissions, also the item of old furniture, $204.75, less $83 ; and also expenses to Savannah.
The items of office expenses for September and October, $233.76, for each month, were clearly inadmissible, because the conceded agreement was that plaintiff should receive a commission and pay his own office expenses. This agreement was not changed or modified until late in October.
The account annexed to the answer shows that plaintiff is credited with a part of the expenses for said month, to which he was not entitled. It appears that about the end of October the defendant sent one Richardson, who was secretary and treasurer of the company, to New Orleans for the purpose of assisting plaintiff in the organization of its office. Richardson opened a set of books, and, without any authority whatever, gave plaintiff credit for $233.76 for expenses for October. The other items set forth in plaintiff’s brief were either allowed or are too small to affect the shortage. ' The account in question was a liberal settlement of all just claims of the plaintiff.
The averments in the answer relative to the certified cheek for $1,500 were duly proven. In his written opinion the trial judge says:
“The court considers the conduct of the plaintiff in this check incident gave defendants a legal cause for discharging-him.”
We approve the ruling.
This check was not used by the plaintiff, but was held by him for several days.
The charge that the plaintiff received rebates is fully proved, and in fact is admitted. The defense is custom among ship brokers at this port. The evidence is that some brokers receive rebates or refunds, and others do not.
[1] Whatever may be the custom, the law is that an agent is bound to restore to his principal whatever he has received by virtue' of his procuration, even should he have received it unduly. Oiv. Code, art. 3005. In the case at bar the full face of bills were paid by defendants, and refunds were made to its agent.
Under the plain test of the law, the plaintiff is bound to restore the money received as rebates or refunds. Custom cannot prevail against the provisions of the law to the contrary. Meyer v. R. R. Co., 35 La. Ann. 897. That the defendant, or other brokers, take rebates does not excuse plaintiff, as agent, from accounting to his principal.
We agree with our learned Brother below in his righteous condemnation of this species of commercial graft.
Judgment affirmed.