plaintiff was aware of modified offer and thus by performing accepted the terms of the modified contract
How later courts described this case
- plaintiff was aware of modified offer and thus by performing accepted the terms of the modified contract
Written by the judges who cited it.
The opinion
JUSTICE STOUDER, dissenting:
I respectfully disagree with the reasoning and result reached by my colleagues. Only an appellant’s brief was filed in this case; therefore, the appellant, Dennis Davison, has the burden of overcoming the presumption of propriety of the trial court decision. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128 , 345 N.E.2d 493 .) In my opinion, Davison has successfully met this burden by indicating that the law relied upon by the trial court was inapplicable to the facts of this case.
The majority and the trial court rely on Hines v. Ward Baking Co. (7th Cir. 1946), 155 F.2d 257 , as dispositive of this case. Each rely on a general principle applied to facts substantially and legally different from those in the present case. In Hines, the plaintiff was employed under a five-year written employment contract. After two years, he agreed to a 10% reduction in salary for the remainder of the contract period. His agreement to the modification was in writing, which also provided that he could submit to the company a recommendation for a partial or complete restoration of his salary to the rate specified in the original contract. For the duration of the contract, he received and retained the lesser salary. Later, he sought recovery of the difference; however, the trial court ruled against him and the appellate court agreed, holding that if parties proceed to execute fully the modified agreement so that nothing remains to be done by either party and the agreement is no longer executory, the contract as executed will not be disturbed.
In the present case, Davison did not agree to the college’s unilateral modification of the oral employment contract. Further, his conduct in no way evinced acceptance, either tacit or otherwise, of the terms, as suggested by the majority. Davison never agreed to teach at the part-time rate. He instituted a grievance proceeding against the college, and he also endorsed the paychecks he received with language to the effect that his endorsement did not imply an agreement to the modification.
If the majority’s theory is correct, namely, Davison’s only cause of action was for breach of contract at the time the college indicated it did not intend to perform its obligation by paying Davison at the full-time teachers rate, we would reach the result that the college would be obligated to pay in full for the summer school term at the higher rate, but only if Davison did not teach. Clearly such a result is not reasonable, and the college would be the first to complain about the inequities of such a result.
I would reverse the decision of the trial court and enter judgment for Davison.