*1 Stevens, mony. 10, it from the farmers. He even Miller collected (1934). 152, money “general placed the in his own ac- N.W. trial wrong reached the result for counts.” rea- Hoeksema, 879, son. Kehn v. says majority opinion best We should affirm. makes it clear: tax, learned of this new which was Bosse WUEST, J., joins Retired this dissent. 1988, quarter to commence the second publication. a trade from Bosse collected 1, starting April taxes from farmers
1988, placed money in Bosse’s general Bosse accounts. calculated the tax records
due based his own and collected Thereafter, accordingly. the tax he sub- pre- his records to mitted Accountants pare the relevant tax forms ... BALDWIN, Appellee, Heidi Plaintiff and agri- Bosse collected the taxes on quar- cultural use for each these three ters, Accountants did not include them in COLLEGE, NATIONAL A DIVISION OF quarterly result, returns. Bosse’s As a DLORAH, INC., Corpo a South Dakota grossly underpaid Bosse the amount of ration, Appellant, Defendant and federal tax due. In June re- Bosse notice of an audit from ceived the IRS. Flyte, Bonnie Defendant. The obvious reason the accountants quar- did not include taxes in these Bosse’s No. 18689. terly returns was that Bosse withheld that Supreme Court of South Dakota. information from them. He did not tell them tax, that there was a nеw fuel federal he Considered on Briefs Dec. 1994. publication, of it learned from a trade that he Aug. Decided 1995. it and calculated collected from the farm- placed money ers or that he in his own
general accounts. The over- accountants’
sight neglect nothing has little or to do with this situation. Gors, Dacy
As I stated in (S.D.1991) (Sabers, Justice, dissent ing): premise “A basic of the law thаt a profit cannot from wrong.” [his] own
Here, attempting Bosse is to force his ac help pay
countants him the fuel taxes that legally he owes. I’ll part have no of his legally taxes, scheme. He owes the the in penalties terest and the thereon because he knowingly withheld the taxes from the IRS
and caused this penalties. interest this, If helps him get law * the law is an “ass.” testified concerning Bosse to his conduct tax. the new He cannot cláim a favor- more able version the facts than his own testi- Twist, supposes husband, Dickens, As in Oliver if the law that wife "a[n] a[n] idiot.” Charles Oliver ass— Twist, (1890). acts at the Chapter direction of her the law is *2 Christensen, Sturgis, appel-
Steven M. for lee. Jerry
Ronald W. D. Banks and Johnson of Banks, Rapid City, Johnson and Colbath appellant.
AMUNDSON, Justice. (College) appeals
National from a (Baldwin) judgment awarding Heidi Baldwin damages for of contract. We affirm breach part, part, and remand. reverse
FACTS December, 1992, Baldwin was
Prior to em- full-time ployed with as a student began her field recruiter. she em- contract in ployment a verbal agree- signed employment a written 17, 1991, proposed ment on October (Carlyle), Director drafted Keith and the other of Admissions. Baldwin re- proposed copy of the given cruiters were give review and agreement compensation provision, their reactions wages. their increased provided that Baldwin would $20,000,plus a salary receive a base worry on the number students shе en- and for [Baldwin] based “not ... paid.” assurances, Despite would be or “commission” was to rolled. nothing. Baldwin.-received Frustrated with completed four after the recruits weeks situation, finally sought legal However, provided the contract *3 College counsel. took position the to be if that no “bonus” were Baldwin was entitled to the commission. employment agreement the was terminated any prior expiration to for reason the of this court, After a trial to the the trial court period. $1,600 found that Baldwin was College’s commission and concluded that ac voluntarily terminated her Baldwin em- “oppressive” refusing paym tiоns were College ployment with on or around Decem- ent.* contract bonus ber 1992. Baldwin claims she earned “oppressive also held and unconscionable.” $1,600 in this commissions before termi- result, As Baldwin’s were doubled .a figure represented nation. This Baldwin’s College was barred from future enforce compensаtion recruiting a certain number provision. College appeals ment of the those of students who still enrolled after were four - rulings. weeks of Concerned whether she commission, would receive this Baldwin ISSUES superiors money. asked her about the I.DID COLLEGE’S TO REFUSAL 29, 1992, her exit interview December PAY BALDWIN PURSUANT TO Flyte (Flyte), supervisor, Bonnie Baldwin’s THE CONTRACT BONUS advised Bаldwin that she would be enti- CLAUSE CONSTITUTE UN- tled to the commission under the contract. ETHICAL AND UNLAWFUL January 5, Flyte incorporated On her PUNISHMENT OF BALDWIN interpretation into memorandum and sent FOR HER TERMINATING EM- King (King), Dean; it to Gus Academic Ha- PLOYMENT WITH THE COL- (Stone), President; College rold Stone LEGE? Payroll Department. II.DO THE DOCTRINES OF ES- result, Unsatisfied with this sometime in TOPPEL OR WAIVER BAR January, 1993, meeting had a with Baldwin COLLEGE FROM ENFORCING Carlyle regarding payment. Car- THE BONUS CLAUSE BASED lylе authority approve had to pay- ON REPRESENTATIONS ments, drafted Baldwin’s contract and was BALDWIN EARNED THE BO- supervisor November, prior 1992. NUS? During meeting, assured Baldwin DO THE III. TERMS OF THE BO- she was entitled to the bonus. Car- NUS CLAUSE CONSTITUTE lyle King sent memoranda and Stone on AN UNENFORCEABLE CON- January 18, 1993, and March indi- TRACT OF ADHESION? cating that Baldwin entitled to the com- IV. WAS THE BONUS CLAUSE UN- mission. AND, CONSCIONABLE THEREFORE, meeting Carlyle,
In addition to UNENFORCEA- BLE UNDER King, win met with SDCL 57A-2-302. also reassured her money. that she would receive the A series V.DID COLLEGE’S REFUSAL TO meetings Baldwin, occurred between PAY BALDWIN UNDER THE Carlyle, King left College. BONUS CLAUSE CONSTITUTE time, Each Baldwin was reassured the OPPRESSIVE RE- CONDUCT cut,” being “[the “check was check] would be A SULTING IN DOUBLE-DAM- deposited in her account when it was AGE AWARD? law, seven, The trial court's conclusion of forcing number conduct National refusing Plaintiff to retаin counsel and hon- 60-11-7, obligation throughout pursuant or its That SDCL this matter. The the Court concludes that amount Court does not should be doubled conclude that National oppressive the sum $3200 guilty because of of fraud or malice. $1,600 in com- Baldwin claims she earned REVIEW OF
STANDARD terminating employ- prior missions issues, the substantive we address Bеfore Normally, College. these commis- ment with applicable stan first set forth we must paid once the recruit- would have been sions a mixed presents case dard of review. of classes. finished four weeks ed students a trial review law and fact. We question of However, College argues that since cleаrly er findings of fact under court’s prior to her recruits left her Kindle, In re standard. roneous period the lan- completing the four-week omitted). (citations Ac 278, 283 prevents Baldwin’s bo- guage of the court’s disturb a lower cordingly, we will not vesting. nus from clearly they are erroneous. findings unless agree with that the *4 whether, a re after question The becomes provision unequivocally reads evidence, with a we are left of all the view payments made after will be that no bonus that a mistake and firm conviction definite unambiguous. language is termination. (cid:127) are the facts made. Id. Once has been Doll Museum Bus In Enchanted World dispute, in we a contrаct established (S.D.1986), kohl, 149 this 398 N.W.2d agreement exists binding if to see a look rule of contract held is a fundamental “[i]t Kauker, 479 contract, law. Rusch v. contract entire and construction (citing parts provisions and must Permann and all of its each N.W.2d consistently if that can given meaning be Div., be Labor, Unemp. Ins. Dept. of (citing Dail reasоnably Id. at 152 done.” (S.D.1987)). 113, 117 N.W.2d Vodicka,
(1975)). DECISION addition, that her Baldwin testified in error argues the trial court was after the stu- continued duties as a recruiter damages arising from her Baldwin to award application until he or she signed an dent provision. During Col- contract bonus class. employment fourth week of completed the everything time, job was to do knowingly signed the Baldwin’s lege states Baldwin stay adjust and help the student possible to pay- contract, excepts bonus plainly finished the the student in school. Once Therefore, alleg- it upon termination. ments week, then be the recruiter would fourth to the Baldwin is not entitled es that According to the cоmmission. to the disagree. commission. We contract, bonus did rights to her Baldwin’s employ- she terminated not vest because Provision. Unambiguous Contract I. peri- end of the prior to the ment od. provided for expressly Baldwin’s contract on the number payments based “bonus” provision found this The trial court in staying
recruited students
аgainst an
punishment
“unconscionable” as
the words “bonus”
employ
trial court found
wants to terminate
employee who
agree.
interchangeably.
not
College. We do
could be used
ment with
“commission”
Co.,
Tel.
Bell
v. Northwestern
Rozeboom
provision reads:
(S.D.1984),
de
this court
(b)
Employee will receive
Plan.
Bonus
to bе: “One-
contracts
unconscionable
fined
attached
in accordance with the
bonuses
whereby
party is left
one
agreements
sided
paid
Bonuses will be
Compensation Plan.
party’s
remedy
another
a
without
completion of
upon the student’s
his/her
record,
find
we do not
Given
breach[.]”
Employee will
four weeks of classes.
first
“one-sided.”
the bonus
termi-
receive no bonus
opportunity to review
had the
regardless
Furthermore,
agreement,
nation
this
signing and did so.
prior to
Baldwin,
College,
terminated
agreement.
not
party terminates
was
added.)
agreement.
(Emphasis
disagree
deposited
also
with the trial court’s
“it
bе
in
would
when
account
worry”
of the contract as an
characterization
adhe-
“not to
and “that it would
present-
The contract
paid.” King
Carlyle’s
sion contract.
reaffirmed
assur-
“take-it-or-leave-it” fashion.
Id. at
ed
a
ances to Baldwin. He told her
“Re-
that:
Masters,
Inc.,
gardless
v. Clinic
say,
see also Greеn
of what [the] contract would
Upon
[she] deserved the bonus check ... would be
it,
special
receiving
the contract “with
scruti-
worry.”
and not to
ny,”
required of
in which
representations
readjust-
as
documents
one
relied on these
party did
participate
drafting,
payments, holding
ed her financial
off some
debt,
of the document and the circum-
incurring
creditors
further
until
surrounding
agreement
stances
do not
her bonus arrived. Baldwin also testified
Rozeboom,
constitute an
previous recruiter,
adhesion contract.
had
Jerry
ing telephone numerous personal meet- Accident & I. Valley Co. Bear Butte ford ings Baldwin, Carlyle Bank, with 262, 267, made statements 257 N.W. (1934)). the effect being that the “cheek was (S.D.1992); Stone, College’s presi Cnty. Board Knodel v. It is clear Comm’rs, dent, by of Bald A memoranda was advised controversy. Carlyle repeatedly findings providе review of these does not win’s bonus Therefore, support. imposition that Baldwin was entitled mon of double wrote disagreed. damages inappropriate. subordinates Col in this case ey, while his is argue that it cannot now lege therefore recognized long Dakota has South King’s representa Carlyle ignorant principle equity that law and abhor a forfei- Furthermore, expressed Carlyle tions. Winther, 447 Beitelspacher ture. purpose his memo sole for March (S.D.1989); Restatement 2d cf. bonus, randum, acknowledging Baldwin’s (Excuse Contracts, § 229 of a Condition to request Dr. Stone Mr. “to fulfill a Forfeiture). deny Avoid To Heidi Baldwin Here, itself King.” the memоrandum is juncture at this would result in an Carlyle the au proof allowed impermissible denial of a to what she thority to Baldwin’s entitlement. determine Therefore, was told she had earned. we ease, testimony in this $1,600 affirm Baldwin’s entitlement King were ostensi- is clear that and remand for consis- commissions authority to College with deter- agents of ble opinion. tent under the mine entitlement above, holding we light of our need pay now bound contract. case. reach the other issues in this representations made to her. win for their representations, Relying on these changed financial condition based KONENKAMP, MILLER, C.J., J., and Therefore, agents’ promises. shе is J., WUEST, Retired concur. bonus. *6 SABERS, J., dissents. Damages.
III. Double
J.,
GILBERTSON,
having
not
been a
College’s
court
The trial
concluded
time
member of the Court at the
this case
“oppressive” and invoked double
conduct was
submitted,
participate.
did
60-11-7. SDCL 60-
under SDCL
any
“In
action for
breach
SABERS,
(dissenting).
Justice
pay wages,
pri
obligation
of an
where a
emplоyer
oppressive,
has been
fraudu
vate
majority
provided
The
states the contract
malicious,
lent,
pay wages
in his
or
refusal
if the
payments
no
were to be made
employee,
the measure
dam
due
employment agreement was terminated for
ages
wages for
is double the amount of
any
expiration
prior
reason
employer
“Oppressive”
liable.”
is de
is
period. Baldwin terminated
“unreasonably
unjustly
fined as
burdensome:
being told
inquiring
severe, rigorous,
harsh.”
Third
Websters
the com-
that “she would
(1976).
Dictionary, 1584
New International
terminated
mission
the contract.” She
findings
fact
the trial
The
entered
anyway. There was no rеliance because
dispute
certainly disclose a contract
misrepresentation
no
there was
parties.
between two
rely.
majority
states:
findings,
presented
no facts
there are
language
agree
college
severe,
“unjustly
rigor
College’s
conduct
unequivocally
reads
of the bonus
ous,
merely
College was
ex
or harsh” when
be made after
that no bonus
will
ercising
right
judicial
to have a
determi
its
unambigu-
termination.
obligation under
con
nation made on the
ous.
consistently
has
held that
tract. This court
words,
knowing
law,
terminated
such as number seven
other
the conclusions
that,
Despite
no
to the bonus.
damages,
suрport in the
she had
on double
must find
unduly
Kindle,
to find
majority
strains
findings.
at
Cen
nothing
Morrow,
something out of
trol,
creates
“waiver”
Inc.
$1,600.00
and now she is entitled to the
bo
therefore unenforceable under the statute of
(SDCL 53-8-2).
It is also ironic
frauds
nus.
that this is the same
only
ago,
court who
four months
in Owens
Moyes,
because the deal writing was not in and was
* Justice Gilbertson was not a member of the court did not participate. at the time Owens v. was submitted and Moyes he