On Rehearing.
MONROE, J.A rehearing was granted in this case upon the items of the reconventional demand.
1. Defendant claims, and has been allowed, $513.99 for alleged overdraft in plaintiff’s account; that is to say, in plaintiff’s account, as sued on. But a re-examination of the record satisfies us that that amount is not supported by the evidence; the facts, in that connection, being as follows:
*403[2] Plaintiff was first employed by defendant about September 3d or 4th, under a tentative agreement to the effect that he was to receive 2% per cent, commission and a $50 “agency” fee; that is to say, 2y2 per cent, commission on the freights booked by him and earned by the ships, and an additional sum of $50 for each ship handled by him, regardless of freight. And he was to pay his own expenses, including office rent, clerk’s hire, etc. He worked under that arrangement until November 22d or 23d when Mr. B. W. Smith, the vice president of the company, came here from Savannah, and a new agreement was made, whereby plaintiff was to receive a salary of $250 per month, and defendant was to pay the expenses of the office; it being part of the agreement that it should take effect from and after November 1st. It appears that plaintiff had, in the meantime, and whilst working under the original agreement, booked freights (which were afterwards earned by the ships handled by him), the commission on which amounted to $3,159.69, and it seems clear that, under the new agreement, he should have been credited with so much of that amount as had been earned prior to November 1st, and charged with the office expenses up to that date, and that, thereafter, he should have been credited with his salary, at $250 per month; the company to pay the office expenses. The account sued upon is based upon neither the one theory nor the other, and the balance shown by it, to the debit of plaintiff, was reached in rather an arbitrary way and under the following circumstances, to wit:
About, say, November 13th, there had come to New Orleans, from the headquarters of the defendant company, at Savannah, a Mr. O. H. Richardson, bearing a letter to plaintiff, from defendant’s vice president and general manager, which read as follows:
“Savannah, Georgia, November 12, 1907.
“Mr. A. H. Clements, Agent * * * : This will introduce Mr. C. H. Richardson, secretary and treasurer of the company, who is coming with you to organize your office force and put in a new set of books to conform to our ideas. Please extend to him every facility at your command. I am expecting to be in New Orleans about the beginning of the next week and will then go into the subject of the employment of new men to meet the changed conditions.
“Tours very truly.”
Mr. Richardson proceeded, in the first place, to provide himself with what he considered necessary for the purposes of the work to which he had been assigned, and which included an office safe and a lot of office furniture; the safe and part of the furniture being purchased, as we understand, from dealers, in the usual way, and part of the furniture being purchase!! from plaintiff, whose account Mr. Richardson credited with $204.75, as the agreed price. Mr. Richardson then did what he considered proper in the way of putting in a new set of books, which seems to have included an original system of bookkeeping, and matters were in that condition when Mr. Smith came to the city, in the latter part of November, and, having made the new agreement with plaintiff to which we have referred, returned to Savannah. Thereafter, about February 8, 1908, not being altogether satisfied with the way in which the business was being managed in New Orleans, he sent down a Mr. Crawford to audit the books and report generally upon the condition as be might find it. And Mr. Crawford reported, very soon, that the books were in a mess, and that there were things which seemed to require looking into, and thereupon he settled himself to the work of auditing the books and looking into things and reporting.
After working for about a month, he prepared a statement of plaintiff’s account, showing a balance to his debit of $1,154.23. Very shortly afterwards — probably on the same day — he approved another statement (prepared, it is said, by a Mr. Pearce, who had also been sent to the office by the defendant), showing the debit balance to be $613.30. *405And later (during the same month, of March, 1908) he furnished the statement on which the reconventional demand is predicated and which shows a balance against plaintiff of $513.99. In arriving at those balances, Mr. Crawford did not confine himself to the figures in the books, but included or excluded items appearing to the credit of plaintiff’s account according to the dictates of his own judgment, and the difference between the first and last statement is attributable to the fact that some of the items, originally excluded, were finally accepted and approved by Mr. Smith, and others were not. Among the items rejected by Mr. Crawford and not, thereafter, fully accepted by Mr. Smith, was the one of $204.75, for office furniture which Richardson had purchased from plaintiff (along with the safe and other things bought by him from other persons), and for which he (Richardson) had credited lflaintiff on the books. Richardson’s authority to buy the other things does not appear to be questioned, and, so far as we are informed, the defendant has retained and is in possession of the furniture purchased from plaintiff. There is not a syllable of evidence in the record to show that it was not worth the price agreed on, and why Mr. Smith should, subsequently, have approved the item to the extent of $121.75 and rejected it for the balance of $83, we fail to see.
On the first statement prepared by him, Mr. Crawford failed to credit plaintiff with any salary, for September or October, and, though he credited him with part of the office expenses for October, he failed to credit him with part and failed to credit him with any such expenses for September. And, in so far as he failed to allow the credits mentioned, his statement conformed to the agreement under which plaintiff was working. On the other hand, Mr. Crawford failed to credit plaintiff with any commissions, save those earned on one ship (the Sandsend); whereas, he had earned commissions on the the ships “Conway,” “Dalmira,” “Tunstall,” “Sark,” “Strathuevis,” and “North Sands.” On the second statement, approved by him, and on the account sued on, Mr. Crawford credits plaintiff with salary for both September and October and with office expenses for October, but fails to credit him with office expenses for September, and also fails to credit him with the commissions as stated above. Plaintiff complains of this and says that he is entitled, either to the commissions, from which he was to have paid his own salary and office expenses in September and October, or else (and he is willing to accept that view) that defendant should keep the commissions and pay both salary and expenses for the two months. The argument appears to us to be unanswerable, and the office expenses for September, amounting to $233.76, should be allowed.
The reconventional demand charges plaintiff with $118.05, which is made up of two items — $68.05 and $50 — said to have been received by him, from one Ross, in the way of rebates on what is called “dunnage.” Plaintiff admitted, in his testimony, that he had received the $68.05 and denied that he had received the $50. Plaintiff is charged with $100, as a rebate, or refund, said to have been received from one Thriffley, on account of stevedore work; and he testified concerning that matter, in part, as follows:
“Q. Did you get any rebate on stevedoring? A. Ño, sir. Q. You never got anything from Mr. Thriffley? A. I got $100 from Mr. Thriffley. That was before the South Atlantic Line had a steamer at all. He gave me a check for $100, advanced to me. Q. You borrowed $100 from him? A. Yes, sir; in September. Q. Never have paid it back — that loan? A. Never paid it back. 1-Ie has got my receipt to this day. * * * A. When the ship came, I got some money from Mr. Rawlins and had a little money to pay expenses when the first steamer arrived, and I told Thriffley: T will only need $100 from you right now,’ so he sent me his check for $100, and I gave him a receipt for it: ‘Received by A. H. Clement, as a loan $100.’ And that -was the only $100 I have got from Thriffley, and never gave it back because he said he was making good money from the ships *407and others. Q. You received it as an obligation? A. Yes, sir.”
There is no other testimony bearing specifically upon the ■ charges above mentioned, save some little further explanation by plaintiff, and that given by Crawford, to the effect that he informed Mr. Smith about them, and his examination then proceeds as follows ;
“Q. Where did you get it (information as to rebates received by Clements)? A. Direct from the people that gave the rebates. Q. From Thriffley? A. From Thriffley. Q. Mr. Ross? A. Mr. Ross and Mr. Bisso. Q. How did you get that information? A. Went out and got if. Q. How did you go out and get it? A. Just' making an investigation of accounts, 'to find out whether everything was all right.”
[3] It is stated, and not denied, that both Ross and Thriffley were in court during the trial, as witnesses for defendant, and, as they were not called to deny what was said by plaintiff, or to substantiate the hearsay testimony of Crawford, it is evident that the charges in question are not sustained, for, whatever may be said of the propriety of plaintiff’s obtaining money, as he did, from Ross and Thriffley, it does not follow that, because he so obtained $6S.05 from Ross, he also obtained $50; nor does it follow, because, in view of their relations, actual and prospective, it was indelicate and improper for him to borrow money from Thriffley, that he may not have done so, or that what he swears was a loan, was, in fact, intended as a rebate, to be charged against some future stevedoring contract.
Our reconsideration of the matter, therefore, leads us to the conclusion that the judgment in favor of defendant should be reduced by the amount of the items herein above considered, aggregating $466.76.
It is, accordingly, ordered, adjudged, and decreed that the judgment heretofore handed down be amended by reducing the amount allowed defendant on its reconventional demand from $782.04 to $315.28, and by condemning defendant, instead of the plaintiff, to pay the costs of the appeal. It is further decreed that, as thus amended, said judgment be reinstated and made the final judgment of the court.