Public-domain · open source
OpenJurist

521 So. 2d 312

521 So.2d 312

13 Fla.L.Weekly 621

Lester v. Kahn-McKnight Co.

District Court of Appeal of Florida · decided 1988-03-08

Cited by 2 later decisions — most recently December 1994

2 state decisions

Relies on Gernat v. Gernat · Tannen v. Equitable Life Ins. Co. of Washington, DC · Vera-Nunez v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1988-03-08

View the full empirical analysis of this case →

SCHWARTZ, Chief Judge.

¶1Early in 1980, the appellant Lester was employed as a real estate salesman by the appellee Kahn-McKnight. He was given a $1,000 monthly draw “against commissions.” Six months later, having earned no commissions, Lester left Kahn-McKnight. He signed an agreement promising to repay the $6,000 he had received in draws. In the instant action, Kahn-McKnight sued and won a summary judgment for the $6,000. Lester appeals.

¶2In the absence of a specific undertaking to repay the amount of a draw upon commissions — which did not exist here — the draw is considered as a plain and simple *313salary which, except as a set-off against earnings, the employee has no obligation to return. Tannen v. Equitable Life Ins. Co., 303 So.2d 352 (Fla. 3d DCA 1974); see also Placet, Inc. v. Ashton, 368 So.2d 404, 409-10 (Fla. 3d DCA 1979) (promise to pay draw against commissions in future requires payment of amount of draw even if commission is unearned), cert. denied, 378 So.2d 343, 347 (Fla.1979). It follows that Lester’s post-employment written promise was supported by no consideration and was therefore unenforceable as a matter of law.

¶3On this basis, the judgment below is reversed with directions to enter one in Lester’s favor.

¶4Reversed.

/521/so2d/312 · .json · Public domain