Petition — Lunsford v. Investors Diversified Services, Inc.

| “FILED

~ Supreme Court, U.S ~ \

JAN 26 1978

MICHAEL RODAK, JR., CLERK

No. 77-1055

In THE

SUPREME COURT OF THE UNITED STATES

JANUARY TERM, A.D. 1978

OMAR M. LUNSFORD,

/ Petitioner,

vs.

INVESTORS DIVERSIFIED

SERVICES, INC. and IDS

LIFE INSURANCE COMPANY

(sued herein as Investors

Syndicate Life Insurance

and Annuity Company),

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Dean E. Richards

156 E. Market 7th Floor

Indianapolis, Indiana

Counsel for Petitioner

John W. Houghton >

1313 Merchants Bank Bldg.

Indianapolis, Indiana

Attorney for Resvondent

Page

Petition For Writ of Certiorari................. 1

Tee Gees BORG. cc cece dbside cde ibs divs ides 2

Statement of the Jurisdiction................... 2

ST Ss ci carnkccseccesedeccetccase 2

Constitutional Provisions Involved.............. 5

eS Ge Fe Bs a eit nainccenen cacnnssns+es 5

Reasons for Granting Writ....................05. 7

ET on ee ee Oe Ree Se ee 25

IS dio vo 0 bp es oo o6 0064 oNG4 00k cebeces 25

APPENDIX A

December 27, 1977 Gach. . oc ccccccccecccccces

APPENDIX B

November 30, 1977 decision.....................

APPENDIX C

November 30, 1977 decision.....................

APPENDIX D

Order Granting Motion for Summary i

Judgment , dated November 23, 1976............

AUTHORITIES CITED

Perry v. Sindermann, 408 U.S. 593,

33 L.Ed2d 570, 92 S.Ct. 2694 (1972)........... 7

Degan v. Investors Diversified Services,

Inc., 260 Minn. 424, 110 N.W.2d 863 (1962)....9

Bussard v. College of Saint Thomas, Inc.,

294 Minn. 215, 200 N.W.2d 155 (1972)......... 11

Miller v. 0.B. McClintock Co., 210 Minn.

Bey GUE Ge Fay FED Ge ok ccceccccccces 14

Page

Clausen & Sons v. Hamm Co »

395 F.2d, 388, 391 (8th Cir. 1968)........... 15

Ag-Chem v. Hahn,

pe Ff £ |. SO. eer aor 15

Bennett v. Storz Broadcas Co

134 N.W W.2d OE Ee 16

Carr v. Hayes, 110 Ind. 408, 11 N.E. 25

add Le ucaeeentdeuanateeekeesen ee 17

Diddel v. American Security Co.,

94 Ind. App. 639, 161 N.E. 689 6 Se 17

Swanson - Numn Realty Co. v. Gentry,

134 Ind. App. 580, 186 N.E.2d 574 (1963)..... 17

Rhoads v. Jones, 92 Ind. 328 (1883) RE ee 17

McCaskey Register Co. v. Curfman,

45 Ind. App. 297, 90 N.W. 323 (1903)......... 17

Sonneborn v. S. F. Bowser & Co.,

64 Ind. App. 429, 115 N.E. 66 (1917)......... 17

McClure v. Jeffrey, 8 Ind. 79, 83 (1856)....... 17

Breza v. Thaldorf, 276 Minn. 180, 149 N.W.2d

Sk NS 5 c.ccn coments weseeeeseses 19

v. Gluck, 41 Mim. 193,

Ge Pe Stns bus de anecaueteace* *a0s 20

Seibert v. Leonard, 17 Mimn. 433 (1871)........ 20

Jansen v. Herman, 230 N.W.2d 460, 463 (1975)...21

Hyler v. Humble, 100 Ind. 38 (1884)............ 21

Anderson v. Miller, 76 Ind. App. 681,

— LBD WLW. 29 (192)... ccc ccc cece eccneccvees 21

Myers v. Maris, 326 N.W.2d 577 (1975).......... 21

Seastrom Inc. v. Amick Const., 140 Ind. App.

rite 2S 6 B® OF eer 21

ii

Trovatten v. Mines, 213 Minn. 544,

7 N.W.2d 390 (1943) bbtihiGnd bien ccibawh wan eee 21

Mitchell v. Rendex, 255 Minn. 145, 30 N.W.2d

56 bc- shade tenaldeuude die wirdcu beceukd 6oks.ces 21

New Amersterdam Gas v. st, 293 Minn.

274, 198 N.W.2d 543 (1972)... 0... ccc ccc cee 21

Youngberg v. Lambertson, 90 Minn. 100, 97 N.W.

a 22

Hewitt v. Brown, 21 Minn. 163 (1874)........... 22

Van Santfoord v. Smith, 79 Minn. 316,

ee: UE a 22

Homas Mfg. Co. v. Long, 242 F.2d 645 (1957)....25

iii

IN THE

SUPREME COURT OF THE UNITED STATES

January Term, A.D. 1978

No.

—-—- - oS Oe ee

ee er we wee

OMAR M. LUNSFORD,

Petitioner,

vs.

INVESTORS DIVERSIFIED

SERVICES, INC. and IDS

LIFE INSURANCE COMPANY

(sued herein as Investors

Syndicate Life Insurance

and Annuity Company),

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

To the Chief Justice of the United States

and the Associate Justices of the United

States Supreme Court:

Petitioner respectfully asks this Court

to issue a Writ of Certiorari to review

the final judgment of the United States

Court of Appeals for the Seventh Circuit

dated November 30, 1977, and said Petition

for Rehearing was denied on December 27,

1977. That said judgment by the Seventh

wi? &

Circuit Court of Avpeals resulted in

affirming the trial court's judgment in

granting Respondent's Motion For Summary

Judgment.

THE OPINION BELOW

The final opinion of the United States

Court of Appeals for the Seventh Circuit

was unpublished per curiam order. The

date of said opinion was November 3),

1977.

STATEMENT OF JURISDICTION

The denial of the netition for rehear-

ing took place on December 27, 1977. The

statutory provision believed to confer

jurisdiction upon this Court is Title 28,

United States Code, Section 1254 (1).

QUESTIONS PRESENTED

1. Whether the United States District

Court erred in granting Resnondent's

Motion for Summary Judgment on November

23, 1976. This matter concerns an action

by the Petitioner to seek recovery from

the Respondent, Investors Diversified

Services, for wrongful termination of

his employment relationship with such

Respondent. The Petitioner was termi-

nated by the Respondent on October 9,

1974, and Petitioner thereafter brought

this diversity based civil action seek-

ing damages from Respondent. The ques-

tion is whether the trial court erred in

granting said Motion For Summary Judg-

ment and finding that there are no issues

of material facts in dispute and that

the Respondent was entitled to a judgment

3%

as a matter of law based unon Petition-

er's civil complaint. The trial court,

in its memorandum entry accormanving the

order granting the Motion For Summary

Juugment, stated that:

The issue before the Court

is whether the Defendants acted

in accordance with the contracts

between the parties in terminat-

ing the Plaintiff's employment

upon thirty days notice.

Such was not really the issue before the

trial court because the Petitioner

clearly demonstrated why the thirty day

termination provision should not be rec-

ognized and followed and argued said

point in great detail in the Petitioner's

Motion and Response to Respondent's

Motion for Summary Judgment before the

trial court. The United States Court of

Appeals for the Seventh Circuit, in its

order, adopted the trial court's memoran-

dum and affirmed the judgment of the

trial court and thus adopted the trial

court's memorandum entry. That further,

the trial court held in said memorandum:

The Plaintiff has not tendered

to the Court any statement of

genuine issue of fact, which is

required by Rule 10 of the Local

Rules of this Court when opposing

a Motion for Summary Judgment.

The trial court further stated:

The Plaintiff's Brief in

Opposition to the Motion makes

\\

~~ oe

it clear that the material

facts herein are not in dis-

pute and that the court must

interpret the applicable law

in light of such facts.

The Petitioner, in his resvonse to Resnond-

ents' Motion for Summary Judgment, stated

| that there was genuine and essential

issues of fact presented and that the

Respondents were not entitled to a judg-

ment on the basis of the record hereto-

fore made and that they sought a Summary

Judgment on the basis of an incomplete

record as to the facts; and further, that

the Respondents sought Summarv Judgment

on the basis of micotatamants-aa_to—the

applicable law. to the case. The Peti-

tioner further submitted a memorandum

on the facts to the trial court that

conflicted with the Resnondents' allega-

tions. In the Petitioner's Memorandum In

Opposition to said Resvondents' Motion

For Summary Judgment, argued that the

wea tten sgreemente vere incomplete

sketches merely outlining and vaguely

describing and in some imoortant inci-

dences fictitiously describing the

actual business relationshin between the

~ Petitioner and the Resvondent in that

the Pétitioner's true contractual status,

was readily demonstratable bv pro-

evidence, and was such as to entitle

him to continue to hold the pnosition he

held with the Resnondent immediately

prior to his termination by the Resnond-

ent unless a reason develonved for his

termination that would constitute cause

for termination within the normal usage

common to the Petitioner and Respondents’

mutual field of endeavor.

ee

— 2 |

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the Consti-

tution of the United States prohibits the

taking of property without due process.

STATEMENT OF THE CASE

Petitioner appeals to the Seventh

Circuit from a Judgment Entry rendered

by the trial court in the Southern Dis-

trict of Indiana, Indianapolis Division

on November 23, 1976. This matter con-

cerns an action bv the Petitioner to

seek recovery from the Respondent,

Investors Diversified Services, for

wrongful termination of his employment

relationship with such Respondent.

The Motion For Summary Judgment was

filed after Petitioner filed his Second

Amended Complaint on January 23, 1976.

An answer was soon filed thereto and on

June 10, 1976, Respondent filed their

Motion For Summary Judgment, Proposed

Findings of Facts, and Conclusion of

Law, and Respondent also filed a Brief

in Support of Motion for Summary Judg-

ment. On July 14, 1976, the Petitioner

filed a Response to Defense Motion for

Summary Judgment and on July 29, 1976,

the Respondent filed a Reply Brief in

Support of Motion for Summary Judgment.

That also on July 29, 1976, the Respond-

ent filed a Request for Oral Argument.

That on November 10, 1976, Oral Argu-

ment on Respondents' Motion for Summary

Judgment was held before the trial court.

That on November 23, 1976, the Court

issued an Order granting Respondents'

~ o

Motion for Summary Judgment and issued

a Memorandum Entry with said Order (See

Appendix).

That on December 14, 1976, the Peti-

tioner filed Notice of Avpeal and also

filed on said day a Request to Clerk to

Prepare Transcript of Proceedings. That

based upon the Age ceay = and the dis-

covery conducted, the facts concerning

the case are that Petitioner entered in-

to an employment contract with Respondent

effective August 1, 1968, and entered

into a similar agreement effective Janu-

ary 1, 1969. That the Petitioner had

been employed by the Respondent prior

to the execution of these written agree-

ments. A copy of said employment agree-

ments are set out in the Apnendix.

The Petitioner was terminated by the

Respondent on October 9, 1974, and Peti-

tioner thereafter brought this diversity

based civil action seeking damages from

Respondent, Investors Diversified Ser-

vices. The question is whether the Court

erred in granting said Motion for Summary

Judgment in finding that there are no

issues of material fact in dispute, and

that the Respondent was entitled to a

Judgment as a matter of law based upon

Petitioner's complaint.

That on November 30, 1977, the United

States Court of Appeals For The Seventh

Circuit affirmed the trial court's memo-

randum entry in granting Respondents’

Motion for Summary Judgment. That on

December 27, 1977, the Seventh Circuit

Court of Appeals denied Petitioner's -

Avpvellant's Petition for Rehearing.

rr

=; =

REASONS FOR GRANTING WRIT

The Seventh Circuit erred in affirm-

ing the Trial Court's finding that the

Respondent was entitled to judgment as

a matter of law in that the Trial Court

erred in holding that a Summary Judgment

will lie against Petitioner who is

asserting that he had a life-time

employment contract where the assertion

is based upon the customs and usage of

an institutional or corporate employee

of Petitioner. In Petitioner's res-

ponse to Respondent's Motion for Summary

Judgment, the Petitioner argued that

the Respondent sought Summary Judgment

on the basis of mis-statements as to

the law applicable to the case and to

the facts. In support of said argument,

the Petitioner says as follows:

In Perry v. Sindermann, 408 U.S. 593,

33 L.Ed. 2d 570, 92 S.Ct. 2694 (1972) an

action for breach of contract was brou-

ght in a United States District Court

by a college professor against a College

that granted exvlicit tenure to none of

its employees and had an explicit policy

of not doing so. The thrust of the

Petitioner's complaint turned upon his

First Amendment Rights which, of course,

could not be relevant here but the case

ultimately was decided upon the question

of whether due process of law would per-

mit a determination against the Petiti-

oner's complex property right assertions

by means of summary judgment proceedings.

When the case reached the United States

Supreme Court its status was summarized

as follows by this Court in what was,

for all practical purposes, a unanimous

—

decision by that Court on the procedur-

al question at hand herein:

The Court of Appeals rever-

sed the judgment of the District

Court, 430 F.2d 939. First, it

held that, despite the Respondent's

lack of tenure, the nonrenewal of

his contract would violate the

Fourteenth Amendment if it in

fact was based on his protected

free speech. Since the actual

reason for the Regent's decision

was ‘in total dispute’ in the

pleadings, the court remanded the

case for a full hearing on this

contested issue of fact. Second,

the Court of Appeals held that,

despite the Respondent's lack

of tenure, the Petlure to allow

him an opportunity for a hearin

would violate the constitutiona

uarantee of procedural due process

Pr the Respondent could show that

he had an ‘expectancy’ of re-

employment. (Emphasis supplied).

Perry v. Sindermann, supra at U.S. 596

& S.Ct. . The Supreme Court quickly

disposed of the First Amendment question

and held it sufficient to require the

setting aside of the summary judgment

that had been entered. But then the

Supreme Court went on to also uphold the

Prosessor's simple, procedural assertion

that summary judgment did not lie in

light of what the Supreme Court found

to be prevailing contract law “in most,

if not all, jurisdictions."

oe

=

The Perry v. Sindermann decision noted

a possible basis for the fired employee

to show that he had a contractual right |

to be continued in his position not-

withstanding the fact that his written

contract, on its face, had expired and

that there were express provisions to

the effect that no employee was to be

considered as having tenure. This

holding was rendered notwithstanding

the fact that in Perry v. Sindermann

all relevant written materials bearing

upon the question of a right against

being terminated without cause were be-

fore the District Court at the time that

summary judgment was rendered. Nothing

approaching that state of the record

obtains in this case. The Respondent

herein is seeking summary judgment after

it alone has had any appreciable discov-

ery relief and, as heretofore noted,

numerous writings incorporated by refer-

ence in the subject agreements still not

a part of the record herein. Under Perr

v. Sindermann the Petitioner is entitle

to go well beyond those yet to be pre-

sented writings and yet the Respondent

is here seeking summary relief on the

basis of written agreements which are

incomplete on their face.

The Seventh Circuit relied upon the

case of Degan v. Investors Diversified

Services a 260 a. 424, 110 W.W.

2d 863 (1962) hereinafter "the Degan

eed

case'') which the Respondent pres

at page 31 of its Brief-In-Support and

which the Respondent calls "the case

most directly applicable to the one at

~ Ws

bar" because it “involved an action for

a breach of an alleged lifetime employ-

ment contract, " because the holding

involved “circumstances remarkably sim-

ilar to the case at oar" and because the

Petitioner therein had been told that

he, like the Petitioner herein had been

told to consider this position "'a career

situation’ which the Minnesota Supreme

Court found to be an agreement termin-

able at the will of either party. Un-

mentioned is the most obvious similar-

ity, that the Respondent in that case

is the same as the Respondent in this

case.

It would appear that the Respondent's

reliance upon the Degan case is not con-

fined to their brief in this cause and

that the Respondent apparently has oper-

ated for more than a decade under the

impression that the Degan holding gives

them an unbridled license to tell any

numbers of lies to and make any number

of blue sky promises to their employees

and agents regarding job security. Such

reliance is very ill taken.

The Ose an case is not at all analo-

gous to tioner's cause. Degan was

a peste desk bound, office employee

under no written contract, no covenant

not to compete, no commissions and, what

is more important, no higher than ordin-

ary commissions dictated by length of

service. Also, there was no accumulated

good will acquired in what had been a

virgin division and which became a wind-

fall to IDS upon the employee's depart-

- i] -

ure. (The Degan holding also is not

analogous from the standpoint of whether

summary judgment will lie herein because

the decision in that case shows that the

Court had the benefit of seeing all of

the company wegulations, pension fund

materials and other materials relevant

to Degan's employment status.)

The Respondent proposed in its ten-

dered Findings and Conclusions that the

Court find that there is no difference

in the law of the two states, i.e.

Minnesota and Indiana.

The written agreements vrovide that

they are to be interpreted under Minne-

sota law and the Petitioner would prefer

that the Respondent honor at least this

aspect of those agreements.

The more recent (and more applicable)

Minnesota case of Bussard v. College of

Saint Thomas, Inc. 29 “30% Minn 215, 300 —

N.W.2d 155 (L972) had this to say about

se pee an holding (actually the Skager-

hold-

ing upon which the Degan

ise MB gL and which the Respondent also

cites in its Brief immediately after

Degan) :

The leading Minnesota case

dealing with contracts for per-

manent or lifetime employment is

Skagerberg v. Blandin Paper Co.,

197 Minn. 291, 266 N.W. 872

(1936) noted, 35 Mich. L.Rev. 321,

21 Minn. L.Rev. 748. We there

= -_ “©

» 8s

indicated adherence to the some-

what arbitrary rule of most juris-

dictions that a contract for 'per-

manent employment’ will be const-

rued to be terminable at the will

of either party except in compel-

ling circumstances, such as where

the employee in effect purchases

the permanent employment by giv-

ing a valuable consideration other

than his customary daily services

or otherwise giving up more than

one normally gives up when he agr-

ees to take on a new employment.

The rule is arguably too mechanical

an answer to the more basic issue

of ascertaining the real intent of

the parties. 22 Minn. L. Rev. 731,

but no re-examination of the rule

is necessary in this case. This

Petitioner clearly did furnish the

valuable consideration contemplated

by the existing rule." (Emnhasis

supplied)

Bussard v. College of Saint Thomas,

supra, at N.W.2d ter Thus in Bussard

the Minnesota Supreme Court not only

questioned the rule relief upon by the

Respondent and stated that it was an

oversimplification due for re-examina-

tion, and inapplicable where a person,

in undertaking and performing in the

course of employment, gives uv more than

one normally puts in to such an under-

taking, it also held that Skagerberg

(and presumably Degan) don’t even present

a question where there is clear indepen-

dent consideration given in exchange for

a job believed to be permanent.

—

The Petitioner herein does not assert

that he gave additional consideration

wholly analogous to that given by Bussard

to the defendant in that case, but he does

assert that he falls well into the category

of "having given up more than one normally

gives up when he agrees to take on a new

employment."

Petitioner's additional consideration

is the subject of ample discussion in the

memorandum on the facts which precedes

Petitioner's trial memorandum on the law

and it would serve no purpose to again

recite it here. What is important to em-

phasize here is the fact that the Minnesota

Supreme Court does not lump all emplovment

agreements under those legal chestnuts

which the defense reneatedly cites from

Indiana cases having no legal application

here. Quite to the contrary, the Minnesota

Supreme Court has held that termination-

at-will contract provisions are to be

looked upon with disfavor and to be of no

effect where qualified provisions or termi-

nation also appear in the contract. The

reasoning behind such a view is obvious.

Where there is termination at will there

is no need to provide for termination for

cause.

Courts are inclined to

construe a contract so as

not to allow a party to termi-

nate at will without cause.

Clauses that a contract may

be terminated or cancelled for

breach of default are construed

as being intended for the bene-

fit of the varty who is not

- 14 - | |

guilty of breach or default,

not the one who is... It

was not necessary to give the

licensor a right to cancel the

contract for cause if he had

the right to terminate it at

will. It necessarily follows

that he had no right of termi-

nation at will. Furthermore,

a construction authorizing

termination at will renders

meaningless and superfluous

the provisions for termination

by mutual consent as well as

those by notice and action.

Our conclusion is that neither

party had the right to termi-

nate the contract at will.

Miller v. 0.B. McClintock Co.,

210 Minn. 152

297 N.W. 724, 729 (1941).

In a much more recent case the Court of

Apneals for the Eighth Circuit has con-

strued Minnesota law as not permitting

the termination of a franchise holder at

the will of the franchisor where the holder

has made a substantial investment in facil-

ities to make use of the franchise:

Thus we feel that under

Minnesota law where an ex-

clusive franchise dealer

under an emplied contract,

terminable on notice, has at

the instance of a manufacturer

or supplier invested his re-

sources and a credit in estab-

lishment of a costly distri-

» 40%

bution facility for the sup-

plier's product, and the sup-

plier thereafter unreasonablv

terminates the contract and

dealership without giving the

dealer an opportunity to recoup

his investment, a claim (for

breach of contract) mav be

stated.

Clausen & Sons v. Hamm Brewing Co.,

.2d

388, 391 (8th Cir. 1968)

Also see: Ag-Chem v. Hahn,

480 Fr. 74 482 (th Cir. 1973)

(Involving a Minnesota Corp. &

an Indiana licensee. )

In the Petitioner's case, of course, he in-

vested a lifetime career in his franchise

rather than a physical plant to be used as

a distribution facility, but the applica-

bilitv of this aspect of Minnesota law is

nonetheless apparent.

The agreements herein, bv their own

terms, are to be construed under Minnesota

law, and so construed, there is no question

that the Petitioner's covenant not to com-

pete with the Respondents upon separation

from his employment constituted, in the

terms of the previously quoted decision in

Bussard v. College of Saint Thomas, supra,

“more than one normally gives un when he

agrees to take on a new emplovment." The

Minnesota holding on the enforceability of

such covenants (to which plaintiff made a

confession of judgment in the covenant) is

as follows:

- > |

This court has uniformally

upheld covenants in a contract

of employment designed to pro-

tect the employer against the

deflection of trade or customers

by the employee by means of the

opportunity which the employment

has given him; or to protect the

legitimate interest of the

business or professional man about

to employ another under circum-

stances where the emplovee is

given access to the emplovers

patronage, customers, clients,

or trade secrets. National

Benefit Co. v. Union Hospital

Co., 45 Minn. 255, 47 N.W. 806;

Nelson v. Johnson, 38 Minn. 255,

36 N.W. 868; Holliston v. Ernston,

124 Minn. 49, 144 N.W. 415;

Gibbons v. Hansch, 185 Minn. 290,

240 N.W. 901; Williams v. Thomson,

143 Minn. 454, 174 N.W. 307;

Granger v. Craven, 159 Minn. 296,

199 N.W. 10, Menter Co. v. Brock,

147 Minn. 407, 180 N.W. 533,

Standard Oil Co. v. Bertelsen,

186 Minn. 483, 243 N.W. 701;

People's Cleaning & Dyeing Co.,

Inc. v. Share, 168 Minn. 474,

210 N.W. 397; Andres v. Cosgriff,

175 Minn. 431, 221 N.W. 642; “

Shaleen v. Stratte, 188 Minn. 219,

246 N.W. 744; Peterson v. Johnson

Nut Co., 204 Minn. 390, 283 N.wW.

561.

Bennett v. Storz Brosdcesting Co

T34 NW. 2d 592,

898 (1965)

» $F 4d

The Respondent cited a number of

Indiana cases in suvport of its motion,

even though Minnesota law exvressly governs

the employment contract. The “early case

of"' Carr v. Hays, 110 Ind. 408, 11 N.E.

25 (1886) is cited to the effect that a

written contract is the exclusive and onlv

evidence of varole statements preceding

and concurrent with it. The Indiana cases

of Diddel v. American Security Co., 94

Ind. App. 639, I61 N.E. 689 (1932);

Swanson - Nunn Realty Co. v. Gentrv, 134

Ind. App. :

Rhoads v. qoones: 92 Ind. 328 (1883);

McCaske ister Co. v. Curfman, 45 Ind.

App. Oy *Sh N.W. 323 (1903); Sonneborn

v. S. F. Bowser & Co., 64 Ind.

II5 N.E. 66 and McClure "yi Saetens.

8 Ind. 79, 83 (1856) are cited to the same

effect, all of them correctlv cited as

they pertain to Indiana law.

Minnesota law permits parole evidence

to establish that a written agreement does

not state the whole relationship of the

parties, that differing oral promises were

made while the contract was still executory

and that there were oral conditions pre-

cedent to a contract.

A determination of whether

the written document is a com-

plete and accurate ‘intergration'

of the terms of the contract is

not made solely by an inspection

of the writing itself, imnortant

as that is, for the writing must

be read in light of the situation

of the parties, the subject matter

and purposes of the transaction

- 18 -

and like attendant circumstances,

Jimmerson v. Troy Seed Co., 236

Minn. 395, 53 N.W. 2d 273 (1952);

Bjornstad v. Northern States

Power Co., 195 Minn. 439, 263

N.W. 289 (1935); Cargill Commis-

sion Co. v. Swartwood, 159 Minn.

1, 198 N.W. 536 (1924); Wheaton

Roller-Mill Co. v. John T. Noye

Mfg. Co., 66 Minn. 156, 68 N.W.

854 (1896).

Bussard v. College of St. Thomas, Inc. ounrs.

at 290 W. W.2d 155

The Bussard decision refers to this

as "the incomplete contract exception to

the parole evidence rule," a rule which is

left barely intact under Minnesota law.

(In contrast to Indiana law).

« 425

the amended pleadings and the

evidence, that the parties had

during the progress of construc-

tion verbally agreed to modify

the terms of the original con-

tract. Defendants frankly con-

cede that, once the finding of

a modified contract is sustained,

no issue of consideration is

presented, for the original

consideration would attach to

and support a moditication made

while the original contract was

still executory. (Emphasis

supplied).

Breza v. Thaldorf,

nn.

149 N.W. 2d 276,

278 (1967)

Also, under Minnesota law, parole Nor is the law stated in Breza v.

evidence is proper to show changes in a Thaldorf, supra, any new or one-time

written contract which took place while it development in Minnesota law.

was still executory:

Defendants argue that plaintiff

pleaded and proved an express con-

tract to build a garage with a per-

manent roof, not a modified con-

tract to build a garage with only

a temporary roof, and that accord-

ingly there was no consideration

for defendants’ subsequent promise

to make what amounted to a par-

tial payment prior to full per-

formance of the contract. This

argument falls upon the fact that

the jury found, as it could under

Action to recover a balance

claimed to be due uvon a con-

tract for the erection of a

building, and for extra work

on the building. Plaintiff had

a verdict. The evidence was

sufficient to justifv it. It

can hardly be said that any

question of law is presented.

Parties may by narole modify

a written executory contract

under seal, either by changing

its terms or waiving its

conditions, if they have acted

under and executed it as so

- 20 -

modified. That the pvarties to

this contract agreed on the

waivers and modifications claimed

by plaintiff, and acted under

and executed it accordingly,

were questions for the jury, and

the eviderce justified their

findings.

McClay v. Gluck, 41 Minn. 193,

G2N.E. 875 (1889)

Also see:

Seibert v. Leonard, 17 Minn. 433

(1871)

Of less impvortance in this particular case,

but of nonetheless substantial significance

in demonstrating the great difference be-

tween the law of Minnesota and these of

Indiana regarding the interpretation of

contracts is the admissability of oral

statements to show that a written contract

was the subject of a condition precedent:

In Minnesota we have repeatedly

held that parole evidence is

admissable to show that, notwith-

standing the deliverv of an

instrument, the intention of

the parties was that it should

not become operative as a binding 4

contract except unon the havvening

of a future contingent event.

Skaaras v. Finnegan, 31 Minn. 48,

16 N.W. 456 (1883); Smith v.

Mussetter, 58 Minn. 159, 59 N.W.

885, (1894); Minar Rodelius Co.

v. Lysen, 292 Minn. 149, 277 N.W.

o

523 (1938); Hamilton v. Boyce,

234 Minn. 290, 48 N.W.2d 172

(1951).

Jansen v. Herman, 230 N.W.2d 460,

463 (1975)

On the subject of parole statements

made subsequent to a contract the contrast

between Indiana and Minnesota law is almost

one hundred eighty degrees. The defense

cites the Indiana cases of Hvyler v. Humble,

100 Ind. 38 (1884); Anderson v. rititer,

76 Ind. App. 681, 13

Myers v. Maris, 326 N.W.2d 577 (19755 and

Seastrom Inc. v. Amick Const., 140 Ind.

App. 215, 22 N.W.2d 417 (1966) to the

effect that there must be a separate and

distinct and additional consideration to

support an oral undertaking made subse-

quent to the execution of a contract.

Already cited herein by Petitioner is the

emphasized portion of the quote from Breza

v. Thaldorf, supra, a Minnesota case to

the effect that "the original consideration

would attach to and support a modification

made while the original contract was still

executory." In addition, the Minnesota

cases of Troyatten v. Mines, 213 Minn. 544,

7 N.W.2d 390 (1943) and Mitchell v. Rendex,

255 Minn. 145, 30 N. W. 2d°27 Elatly state

that a written contract may be changed by

parole and New Amersterdam Gas v. Lundquist,

293 Minn. 274, I98 N.W. 2d 543 (19772)

states that a written contract may be

modified by an oral contract. It also has

been held by the Supreme Court of Minnesota

that it is competent for the parties to

a written agreement to change or modifv

the same and by new conditions not in

> 2s

writing waive or qualify the terms of the

written contract: Youngberg v. Lambertson,

90 Minn. 100, 97 N.W. cal TEOO3)- In

addition, two earlv Minnesota cases also

hold flatly that a written agreement mav

be modified by a subsequent parole agree-

ment: Hewitt v. Brown, 21 Minn. 163 (1874)

and Van Santfoord v. Smith, 79 Minn. 316,

82 N.W.

None of the foregoing Minnesota case

holdings in any wav resemble what the

defense attemvts to represent as consti-

tuting Minnesota law on the intervretation

of contracts, the said revresentation being

based upon the device of first suggesting

that .'Minnesota and Indiana law vrobably

are the same and then relying solely unon

Indiana case holdings. Both of the sub-

ject written agreements are unequivocal

in providing that:

This Agreement shall be

deemed to be a Minnesota con-

tract and poverned bv the laws

thereof.

Exhibit B pg. 4 & Exhibit A op. 4

Minnesota law regarding the interpretation

precludes any summarv judgement as the

record stands herein with discovery having

been undertaken and commleted only by the

party moving for such judgment.

One additional contrast between Minne-

sota and Indiana law should be noted. At

pages 21 through 39 of its Brief in Supvart

of Motion for Summarv Judgment the defense

insists, on the basis of Indiana rulings,

— +

that consideration from that stated in the

contract while Minnesota case, Bussard v.

College of St. Thomas, supra, sveaks onlv

of “giving up more than one normally gives

up when he agrees to take on a new emoloy-

ment" and Breza v. Thaldorf, supra, states

flatly that “the original consideration

would attach to and support" an oral modi-

fication of a written contract.

The trial Court in it's “Memorandum

Entry accommanying the Order granting

Motion for Summary Judpment stated that:

The issue before the Court

is whether the defendants acted

in accordance with the contracts

between the parties in terminating

the plaintiff's employment upon

thirty days' notice.

Such was not really the issue before the

Court because the Petitioner clearly

demonstrated whv the thirty dav termina-

tion provision should not be recognized

and followed and argued said point in

great detail in Petitioner's Motion in

Response to Respondent's Motion for

Summary Judgment.

That further the Court held in said

Memorandun:

The plaintiff has not tendered

to the Court anv statement of

genuine issues of fact, which

is required by Rule 10 of the

Local Rules of this Court when

opposing a motion for summary

judgment.

—

The Court further stated:

The vlaintiff's brief in

opposition to the motion makes

it clear that the material

facts herein are not in dispute

and that the Court must interpret

the applicable law in light of

such facts.

The Petitioner, in his response to Defense

Motion for Summary Judgment stated that

there were genuine and essential issues

of facts nresented and that the Resvond-

ents were not entitled to a Judgment on

the basis of the record heretofore made

and that they sought a Summary Judgment

on the basis of an incomplete record as

to the facts and further that the Respond-

ent sought Summary Judgment on the basis

of misstatements as to the law apvlicable

to the case.

That further in said pleading the

Petitioner presented an argument in his

statements as to whether the material

facts were in disvute as follows:

In the memorandum on the facts which

follows immediatelv hereinafter the nprin-

cipal thrust of the Petitioner's nvresenta-

tion is to the effect that the written

agreements herein were incommlete sketches

merely outlining and vaguely describing

and, in some imnortant instances, ficti-

tiously describing the actual business

relationshiv between the Petitioner and the

Resvondents and that the Petitioner's true

contractual status, readily demonstrable

bv varole evidence, was such as to entitle

him to continue to hold the position he

ee

— . we

held with the Resvondents immediately

prior to his termination by the Resnond-

ents unless a reason developed for his

termination that would constitute cause

for termination within the normal usages

common to the Petitioner's and Respondent's

mutual field of endeavor.

SUMMARY

In summary, the Court erred in con-

struing Bussard in considering the facts

to be similar and the Court's assertion

that Petitioner's claim for lifetime

employment was insufficient as new con-

sideration was clearly not shown. Even

if new consideration would be shown at a

trial, then said consideration was suf-

ficient as a matter of law to serve as

consideration for the Respondent's alleged

npromises.

Summary Judpment remedy is extreme

and not to be used as a substitute for

trial, and anv doubt as to existence of

triable issues of material fact must be

resolved against movant. Homan Mfg. Co.

v. Long, 242 F.2d 645 (1957).

CONCLUSION

For all of the foregoing reasons, the

decision of the trial Court below should

be set aside and remanded with instructions

to set aside its order granting Resnond-

ent's Motion for Summary Judgment and to

proceed further in this matter and for all

other proper relief.

DEAN E. RICHARDS, Attorney

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

December 27, 1977

BEFORE

Hon. Philip W. Tone, Circuit Judge

Hon. Wiliiam J. Bauer, Circuit Judge

Hon. William J. Campbell, Senior District Judge

OMAR M. LUNSFORD, ) Appeal from the United

Plaintiff-Apvellant, ) States District Court

vs ) for the Southern

No, 77-1360 ) District of Indiana,

INVESTORS DIVERSIFIED ) Indianapolis Division

| SERVICES, INC., et al., ) 0. IP 75-141-C

Defendants-Appvellee. ) James E. Noland, Judge.

ORDER

On consideration of the petition for

rehearing filed in the above entitled cause

by the plaintiff-appvellant, all of the

judges on the original vanel having voted

to deny the same,

—

IT IS HEREBY ORDERED that the afore-

same is hereby, DENIED.

said petition for rehearing be, and the

ee oe eS oe

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60694

(Argued November 28, 1977)

November 30, 1977

BEFORE

Hon. Philip W. Tone, Circuit Judge

Hon. William J. Bauer, Circuit Judge

Hon. William J. Campbell, Senior District Judge

OMAR M. LUNSFORD, ) Appeal from the United

Plaintiff-Appellant , tates District Court

NO, 77-1360 vs. or the Southern

SERVICES, INC., et al., lis Division

Defendants-Appellee. IP 75-141-C

E. Noland, Judge.

Ss

) fi

INVESTORS DIVERSIFIED ; District of Indiana,

) No

:

The court, having read the briefs and

heard oral argument, is nersuaded that the

District Court's judgment is correct for

the reasons stated by Judge Noland in his

memorandum entry. We adonvt that memorandum

and affirm the judgment.

AFFIRMED.

ee

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

November 30, 1977

BEFORE

Hon. Philip W. Tone, Circuit Judge

Hon. William J. Bauer, Circuit Judge

Hon. William J. Campbell, Senior District Judge

OMAR M. LUNSFORD, ) Apveal from the United

Plaintiff-Annellant , States District Court

for the Southern

NO, 77-1360 vs.

)

)

) District of Indiana,

) Indianapolis Division

INVESTORS DIVERSIFIFD )

SERVICES, INC., et al., ;

No. IP 75-141-C

Defendants-Appellees .

James E. Noland, Jude.

This cause came on to be heard on the

transcript of the record from the United

States District Court for the Southern Dis-

trict of Indiana, Indianapolis Division,

and was argued by counsel.

On consideration whereof, it is ordered

and adjudged by this court that the judg-

ment of the said District Court in this

cause appealed from be, and the same is

hereby, AFFIRMED, with costs, in accordance

yer the order of this court entered this

ate.

APPENDIX 0

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IND: ANA

INDIANAPOLIS DIVISION

OMAR M. LUNSFORD,

PLAINTIFF,

VS, NO. IP 75-141-C

INVESTORS DIVERSIFIED

SERVICES, INC., and

INVESTORS SYNDICATE

LIFE INSURANCE AND ANNUITY

COMPANY,

DEFENDANTS.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT,

This cause is before the Court upon

the motion of the defendants for summary

judgment, pursuant to Rule 56 of the Fed-

eral Rules of Civil Procedure.

Whereupon the Court, having examined

and considered such motion and the briefs

in support thereof, the plaintiff's

response in opposition thereto, and the

pleadings and discovery documents tendered

to the Court, and having held a hearing

on such motion wherein oral argument was

heard and considered and being duly

-2d-

advised in the premises, the Court finds

that there are no issues of material fact

in dispute and that the defendants are

entitled to judgment as a matter of law

on the plaintiff's complaint. Therefore,

the defendants’ motion for summary judg-

ment should be, and the same is hereby,

GRANTED,

IT IS THEREFORE ORDERED, ADJUDGED,

AND DECREED that summary judgment is

hereby entered in favor of the defendants

on the plaintiff's complaint, pursuant

to Rule 56 of the Federal Rules of Civil

Procedure. Costs are to be borne by the

plaintiff.

DATED this 234 day of Nov. , 1976.

/s/ James E. Noland

JAMES E. NOLAND, U.S. District Judge

-3d-

MEMORANDUM ENTRY

The plaintiff has brought this diver-

sity based civil action seeking to recover

from the defendants, his former employers,

for the alleged wrongful termination of

his employment relationship with such

defendants. The defendants have moved

for summary judgment pursuant to Rule 56

of the Federal Rules of Civil Procedure

asserting that in light of the undisputed

facts herein they are entitled to judg-

ment as a matter of law.

The undisputed facts appearing through

the Lo yon a filed and discovery con-

ducted herein indicate that effective

August 1, 1968, the planes. 3* entered

into a Divisional Sales Manager's Agree-

ment with defendant Investors Diversified

Services, Inc. The plaintiff entered into

a similar agreement effective January l,

1969, with defendant Investors Syndicate

Life Insurance and Annuity Company. The

plaintiff had been employed by the defend-

ants for a number of years prior to the

effective date of the particular written

agreements executed herein. Such written

agreements contained a provision to the

effect that any prior agreement between

the parties was thereby cancelled and

superseded as of the effective date of

the agreement. It was also provided that

such aqresmease were to be governed by the

laws of the State of Minnesota and the

parties herein have agreed that the laws

of such state are controlling herein. On

October 9, 1974, each defendant gave to

the plaintiff a thirty (30) day written

notice of termination of such contracts

|

~4d-

with the plaintiff. The plaintiff has

been paid the overwritings and commissions

to which he was entitled through November

11, 1974, and he has not made any claim

for monies due him under the contracts

prior to his termination.

The issue before the Court is whether

the defendants acted in accordance with

the contracts between the parties in

terminating the plaintiff's employment

upon thirty days' notice. The defendants

assert such terminations were appropriate

under the contracts. The plaintiff argues

that both prior to and after the execution

of such contracts he was orally promised

permanent or lifetime employment by agents

of the defendants and that the defendants

breached such promises by their termina-

tion of the plaintiff's employment. The

defendants respond to that arz-ment by

asserting that even assuming such promises

were made they were indefinite, lacking

in mutuality, and without consideration,

and, therefore, are unenforceable as a

matter of law.

The Court would initially point out

that the written agreements between the

parties contained the following provision:

Termination by Parties. This

Agreement may be terminated by

either party without cause upon

thirty (30) days written notice

to the other party....

No written amendments to or modifications

of the written agreements were executed

by the parties subsequent to the respec-

-5d-

tive effective dates of the written agree- .

ments. Therefore, unless the plaintiff

can demonstrate any reason why the above

termination provision should not be recog-

nized and followed, the defendants’ termi-

nation of the plaintiff's employment must

be upheld.

The plaintiff has asserted three

primary arguments in support of his claim

that the written provisions concerning

termination should not be enforced herein.

The plaintiff initially asserts that prior

to the execution of the agreement, agents

of the defendants made certain promises

to him to the effect that he "need not

worry about his future" and that he was

being given "a lifetime job." The Court

believes that even if such oral statements

were made to the plaintiff they are insuf-

ficient as a matter of law to vary the

clear and unambiguous provision of the _.--~

contracts relating to termination. This

principle is universally recognized in

the majority of jurisdictions and the

Court believes it need only briefly recite

Minnesota —— following oe wee

rinciple. In the recent case of Jansen

9 - he a Minn. , 230 N.W.2d 460

, the Supreme Court of Minnesota

stated as follows:

The law is clear that oral

evidence of discussions, nego-

tiations, or understandings

is not admissible to vary or

contradict the terms of a clear,

unambiguous, and integrated

written contract. (citations

omitted) 230 N.W.2d at 463.

ofits

Similarly, in Telex Corporation v. Balch,

382 F.2d 211, (8th Cir. 1967), the Court

in applying Minnesota law recognized:

Any agreements relating to

the subject matter of the con-

tract, occurring prior to the

written contract, are con-

clusively presumed to be

incorporated into the writing.

382 F.2d at 215.

For other authority supporting these prin-

— “ey eg ge see Lehman

Vv. out, nn. 384, 112 N.W.2d 640

(1961); Karger v. Wangerin, 230 Minn. 110,

40 N.W.2d BiG (1950). The Court believes

that the written agreements were a com-

plete integration of the parties' con-

tractual understanding and that the term

with respect to the mutual rights of

termination is clear and unambiguous.

It is not proper to allow extrinsic

evidence to contradict or modify terms

which are clear on their face and which

need no explanation. Jansen v. Herman,

supra; See also Mack v. Earle M. Jorgensen

o., 467 F.2d 1177, Il80 (7th Cir. T8772)

Even assuming such vague statements were

made to the plaintiff prior to execution

of the agreements herein, the Court does

not believe they preclude the defendants'

termination of the plaintiff's employment

as long as the notice provisions were

complied with.

The plaintiff next contends that

certain oral statements and promises made

to him after the execution of the written

agreements support his claim for relief

aft.

herein. The plaintiff relies on certain

statements of the defendants’ regional

manager to the effect that the plaintiff

had a "job as long as the company is

here" and “until he retires." The Court

does not believe that even if such state-

ments were made to the plaintiff they

allow the maintenance of this action.

Initially, it is believed such statements

are so vague and indefinite that they do

not create any enforceable obligation on

the part of the defendants. In the case

of Degen v. Investors Diversified Services

Inc., 200 Minn. 424, 110 N.W.2d 863 (1962),

the Supreme Court of Minnesota was faced

with a situation quite similar to the one

herein and affirmed the granting of

summary judgment for the defendant employer.

In Degen, the employee was made similar

promises of "lifetime" employment and the

Court held such promises are not suffi-

cient to establish a lifetime contract.

Id. at 866. In finding the contract to

be too indefinite to enforce and termi-

nable at the will of either party the

Court relied on the case of Skagerberg v.

Blandin Paper Co., 197 Minn. xoT 266

N.W.2d 872 (1936) wherein the same court

recognized:

[Where] parties to a contract

of service expressly agree that

the employment shall be permanent,

the law implies, not that the

engagement shall be continuous

or for any definite period, but

that the term being indefinite

the hiring is merely at will.

266 N.W.2d at 873-74.

-8d-

For other authority recognizing that oral

promise of "permanent" or "lifetime"

employment are unenforcealle in the

absence of additional consideration for

such promises and the employment is

terminable at the will of either party,

see Pearson v. Youngstown Sheet and Tube

Company, 332 F.2d 785 (7th Cir. 1964)

cert. denied 379 U.S. 914 (1964); Shaw

v. 5.S. Kresge Co., Ind. App. .

328 N.E. 2d ras (1975); 53 Am. Jur. 2d,

Master & Servant §33 (1970); Annot.,

Validity and Duration of Contract Pur-

porting To Be for Permanent Employment,

In light of the above authority and

the fact that the written agreements

herein unequivocally provide for termi-

nation without cause by either party upon

thirty days' notice, the Court believes

the plaintiff's second basis for mainten-

— of this action is legally insuffi-

cient.

The plaintiff's last argument is that

he provided certain additional considera-

tion for the defendants' promises suffi-

cient to make them enforceable. The law

is clear in the majority of jurisdictions,

including Minnesota, that a written agree-

ment may be modified by subsequent oral

promises if there is new and valuable

consideration to support such modification

See e.g. Bussard v. College of St. Thomas

Inc., 294 Minn. - .W.

I7A C.J.S., Contracts §§374-75 (1963);

Annot. 60 A.L.R. 3d §5, pp. 244-49.

Relying primarily on Bussard the plaintiff

has asserted that he has provided other

consideration in three basic forms which

-9d-

support his claim for lifetime employ-

ment.

The plaintiff initially argues that

his refusal to accept or seek other employ-

ment services as new consideration for

the oral promises, but the plaintiff has

not presented any evidence of any other

employment opportunitieg which he rejected

because of his employment with the

defendants. Even assuming the plaintiff

can demonstrate such opportunities, other

courts have been faced with this claim and

have held that this is insufficient as a

matter of law to serve as consideration

for the defendants' alleged promises.

See e.g. Degen, supra; Winand v. Case,

154 F.Supp. - SiO (D ; P

Secondly, the plaintiff's contention

that his relinquishment of his former

position and relocation with the

defendants serves as consideration for

the modification is not presuasive to

the Court. The relocation relied upon

herein occurred when the plaintiff trans-

ferred to a new divisional office of the

defendants. It is undisputed the defend-

ants reimbursed the plaintiff for all

moving expenses incurred in the transfer.

Again, other courts have rejected claims

similar to this and such rule is set

forth as follows:

[A] relinquishment by the

employee of a job, business,

or profession in order to accept

a contract of permanent or life-

time employment does not constitute,

without more, sufficient additional

consideration to support the

-10d-

alleged contract of employ-

ment, the reason being that

any employee who gives up

one job in order to accept

another is merely placing

himself in a position whereby

he can accept the latter

employment, and that such is

the case whether the latter

employment is for an indefinite

period, a specified period, or

for life. Annot. 60 A.L.R. 3d

‘ A nas

ee also Ferreyra v. E. & J. Gallo Winery,

231 Cal. App. : sher v. =

Jackson, 142 Conn. 734, 118 A.2d 316

(1975). The plaintiff may not success-

fully rely on his transfer to support the

additional consideration requirement for

the contract modification.

| Lastly, the plaintiff contends that

his performance of certain "community

services" constitutes additional considera-

tion sufficient to support the defendants'

promises. The plaintiff evidently has

engaged in providing services for organiza-

tions such as the United Fund and for his

local church and hospital which he asserts

have benefited the defendants herein. The

Court believes it is apparent that such

services likely served primarily as a

personal and professional benefit to the

plaintiff. Even if they did indirectly

benefit the defendants' business, they

were incidental to what was expected

of him as an employee of the defendants.

They fall far short of providing any

consideration outside of his contractual

obligations.

-lld-

In Sections 6 through 13 of the above-

cited annotation, the types of "additional

consideration" are discussed which have

been considered substantial and sufficient

to support a promise for lifetime employ-

ment. It is quite clear that those acts

relied upon by the plaintiff herein are

plainly insufficient to serve as new

considerations outside the contract.

Similarly, the Bussard case relied upon

by the plaintiff is distinguishable from

this action in that in such case there

was no written contract provision relating

to termination of the employment relation-

ship and the employee therein had made a

ift to the employer of approximately

£350,000 worth of stock in exchange for

a lifetime position with the employer.

The "additional consideration" allegedly

provided by the plaintiff herein falls

far short of what was provided by the

employee in Bussard.

The Court believes it would be un-

warranted to permit the plaintiff to

enforce oral statements of the defendants

that he had a "lifetime" position with

them in direct contradiction to the clear

and express provisions of their written

agreements and without the plaintiff

providing any meaningful additional

consideration to the defendants for such

promises. Contracts for lifetime employ-

ment are disfavored in the law, in that

they run afoul of normal business custom

and bind each party to potentially im-

practical arrangements. When such con-

tracts are based totally upon oral prom-

ises, in direct contradiction to written

terms, they are usually too indefinite

-12d-

to be enforceable. Such agreements also

lack mutuality of obligation for the

reason most employees would not normally

expect that if they were to voluntarily

terminate the employment relationship in

order to better their own position in

life, they would face liability for

breaching such contract. In short, the

Court believes the employment relationships

entered into herein were terminable at the

will of either party without cause, pro-

vided the proper notice requirements were

complied with.

In conclusion, this Court finds

nothing in the record to indicate this

case does not fall squarely within the

above-discussed general rules which are

universally recognized in Minnesota as

well as the majority of jurisdictions of

this country. Although the plaintiff has

cited various cases where oral promises

for permanent employment have been en-

forced, the facts of this case do not

justify the enforcement of the promises

made herein. The plaintiff has not ten-

dered to the Court any statement of

genuine issues of fact, which is required

by Rule 10 of the Local Rules of this

Court when Spovesns a motion for summary

judgment. e plaintiff's brief in

opposition to the motion makes it clear

that the material facts herein are not

in dispute and that the Court must inter-

pret the applicable law in light of such

facts. The Court believes it has properly

done so and that the defendants' motion

for summary judgment should be GRANTED.

Findings of fact and conclusions of

law have not been separately set forth,

-13d-

but have been incorporated into the body

of the foregoing entry as required and

authorized by Rule 52 of the Federal

Rules of Civil Procedure.