*1 faith good are factual there- questions of MURRAY, Plaintiff-Appellant, R. James inappropriate resolution on generally
fore summary Stumph v. Thomas and judgment, (7th Cir.1985), Skinner, Inc., R. ABT INC. and ASSOCIATES quite it is we convinced this case Stellwagen, Defendants-Appellees. con- apparent the Jafaris’ contentions No. 93-3096. cerning good faith are without merit. Appeals, United States Court of Circuit. Seventh
Finally, the district we remaining counts judge Jafaris’ that the Argued Feb. 1994. premised complaint fail because March 1994. Decided claim upon the breach of contract dismissed Rehearing Denying Order of that claim. With or are mere reiterations II, recog respect to Count implied for violation of the
nize action dealing faith and fair inde
covenant of claim,
pendent and we of a breach breach of
have demonstrated the Jafaris’ merit.
contract claim was without See
Anderson, 578 N.E.2d at complaint III of the Jafaris’ fails
203. Count promissory estoppel, doctrine
because the person a “is of law which
which for a
may promise, be liable held never consideration ... has been when the
considered available binding which is un
entered into a contract law[,]” as is the case here.
der contract Foods,
Wagner v. Fearn Inter Excello
national, Inc., IV, specific performance to Count
As
remedy, cause of not a action.
CONCLUSION genuine are no issues
Because there Metropolitan to whether
material fact as obligation provide the loan in further
question, Metropolitan judg- entitled to law
ment as matter of and the trial court’s judgment
grant Metropoli- affirmed.
tan’s favor is *2 surveys. envisaged
these He that he and colleagues three former Frankel, —Martin Jones, Mary Cay Burich, Calvin all still operate NORC —would subsidiary (Abt’s Chicago headquarters are in Massa- chusetts) and receive half subsidiary’s of the equity. Stellwagen, the chief execu- Abt, thought concept good tive but the implementation problematic. Murray and (the colleagues Group) operated had not before, shop own proposed operation require would a lot of money before producing profit. that it would create satisfying SSI without first itself that prospects profit good. Frankel, were Jones, and Burich were reluctant to leave NORC while were so uncertain. The Group’s lawyer proposed therefore (cid:127) agree the four for a minimum term even if SSI being. never came into Abt accepted two-year and entered into employment with each of the four members. Then all four members of the Group, plus Stellwagen Abt, on behalf of signed
setting forth in detail the terms on which the subsidiary funded, would be created and portion who would own what of its stock —if approved studying after “a three year prepared business and deliv- Petlak, Gaines, III, Elliott E. John J. Huff ered on or before 1988.” The last Gaines, IL, & Chicago, Logan T. Johnston paragraph of this contract reads: (argued), Johnston, Maynard, Grant & Par- Agreements Unless the definitive are ex- ker, Phoenix, AZ, Murray. for James R. party ecuted and each delivered May 30, 1988, other on or before the mat- (argued), Loitz, Stuart Berks LaDonna M. ters set forth herein shall terminate and Deutsch, IL, Levy Engel, Chicago, & party shall have further defendants-appellees. against excepting existing agree- POSNER, Judge, Before employment with each of the RIPPLE, EASTERBROOK and Circuit Major [i.e., Group], Shareholders Judges. agrees, [Abt] all costs and expenses Major of the Shareholders in- EASTERBROOK, Judge. Circuit professional curred to negotiat- advisors in In March 1988 James was unem- Agreements, the definitive such costs ployed, having been released from his expenses $25,000. former not to exceed position as Associate Director of the National Group’s plan acceptable to Abt’s (NORC). Opinion Research Center board, thought projections unreal- opened negotiations Associates, with Abt insufficiently istic and detailed.- On which like survey NORC conducts research. 1988, the board voted not to establish SSL Murray specializes in large-scale surveys for NORC; presently Frankel returned to government; units of Abt wanted to enter Jones, ray, stayed and Burich on under the segment pro- business. terms of their contracts and set posed that Abt create and fund a securing large-scale governmental about sur- (Scientific SSI) Surveys, Abt, vey hope work for in the that deeds along a course intended “we would move loudly than words. Stell- more speak would corpora- spinning off SSI as eventuate in this course. encouraged them ownership you significant had a tion which three members By sug- portions of the letter position.” Other million more than $50 had secured *3 operations fulfilled gested if the that that had at- believed and in business spinoff goals plan in could the the business and profitability. tained years the future. Mur- occur one to subsidiary, as a Abt create SSI proposed that legally ray depicts this as a enforceable those of that differed from although on terms promise. (i) Abt had obstacles: There were two pending a putting him on leave Murray, fired gulf is a between a Yet there (ii) SSI; Jones and to create last effort goal a commitment to work toward a and to speaking terms. longer on ray were no Proposed accomplish that end. Just as the rejected proposal Abt’s conditioned establishment Term Sheet him would commit conditions that under approval, Stellwagen’s letter the board’s on Murray, relationship with ongoing steps on success as Abt conditioned further proceed Jones’s (which board) without say, success. Abt’s defined collapsed, and Mur- Discussions approval. a commitment than the The letter was less of (An employee final. ray’s discharge became permits par Proposed Illinois Term Sheet. expired, two-year contract the negotiate, at will after and to work to ties to right to let Abt’s Murray committing does not contest them goal, without ward some damages a financial ac- go.) Abt later reached him selves to its achievement —or Burich, Empro Manufacturing who with Jones if it is not achieved. commodation Inc., Manufacturing, 870 F.2d firm. v. Ball-Co with the Co. have remained (7th Cir.1989) (Illinois law); Feldman v. again, filed this once On the street International, Allegheny 850 F.2d jurisdiction. Apply- diversity the suit under Cir.1988) (Illinois (7th law); Chicago Invest (which agree gov- parties law' the Illinois Dolins, 89 Ill. ment v. erns), entered the district court 869, 872, 481 N.E.2d Dec. court con- the defendants. The judgment for Interway, Alagna, not cre- parties’ conduct did cluded that the beyond Proposed the Term any contract ate Proposed By negotiating in detail the itself; agreement this left Sheet consequences if and the create a with discretion not to established, parties evinced a were not the subsidiary, because Abt fulfilled its certainty formality and desire for both years, for two the promise to parties’ dealings. Respect for the au their entitled to relief. that he is not court held tonomy shaping arrangements, and left no room for parties’ actual contract The selected, of risks mean for the allocation enrichment, theory unjust recovery on a ought find in a letter such as that a court not adding thought, that the court very Stellwagen’s the more elab support that would produced not evidence Proposed withheld. See orate theory. recovery other on Farnsworth, 3.8 at E. Allan Contracts court, we believe Like the district Proposed Term Sheet 181-86 The conditional; letter, his under the con coming that due Stellwagen’s was power, con tract. board exercised refusal to establish in the wake of the board’s SSI, not to establish templated in the more so. The district court ex was subsidiary. parties’ bar plained: SSI as a Under gain, party shall have further “neither begins by expressing ... that The letter existing agree excepting against the will want to “there are a lot of details we employment” Abt honored contemplates that discuss.” It then —and insists, however, develop agreements. together “to parties
those would work not parameters Term Sheet is or staged plan.” that No details board decided left to agreement. suggested. After the Much is whole subsidiary, emphasizes negotiation. Stell letter SSI. future not to establish inviting certain a letter all need to achieve sent sepa- prior to the formation of the “goals” and to employees four to remain as goals corporation; have conducted. rate the work that SSI would specifically stated. wrote, things, nowhere among other complex negotia- two-year employment parties conducted contract. Al These through sophisticated commercial law- tions though Murray insists yers. They agreed that Abt’s board could pledged work faith toward estab no, say only (and SSI, lishing did not The board said no. enforceable. to) so, never intended do we have concluded claim. much for the contract So permit recovery that Illinois does not under of the contract claim Resolution promises the banner of negotiate fraud for disposes Murray’s quantum resort to also a contract. Beraha v. Baxter Health Care unjust enrichment. meruit (7th Cir.1992). Corp., 956 F.2d 1445-46 permit recovery quasi- on a events, precious At all little evidence governs the contract when a real contract *4 fraud, opposed optimism as DePuy, parties’ relations. Borowski v. events did not vindicate. said (7th Cir.1988) (Illinois 297, law); 301 850 hoped 1988 that he in one to Savings Throp La v. Bell Federal & Loan 1991, years. By year, the third Ass’n, 375, 565, 572, 12 Ill.Dec. 370 longer cooperating, were no 188, N.E.2d 195 Industrial Lift long gone. “Group” Frankel was Truck Service v. Mitsubishi Interna was no Corp., 60 tional 104 Ill.Dec. venture, longer apt term for the and a 432 N.E.2d 1002 attempt fresh to establish SSI faltered— apply: Two real contracts the Pro by Stellwagen. scuttled Jones rather than A em posed Term Sheet and the tidbits, Stellwagen’s coy few such as ployment between and Abt. arguably handling deceitful of the fact that $85,000 per year for his services. he recommended 1988 that the board says Now he were worth more— time, not establish at the are all large-scale survey found busi has, enough permit are not paying profitable ness even after rational factfinder to conclude that Abt and Murray agreed accept Yet salaries. defrauded him into salary exchange fixed for dedicated and years. for three not reclaim the skillful efforts. Abt could salary proved unprofit if the business Affirmed able; Murray cannot demand more than the salary just because the business is ORDER ON REHEARING
lucrative. Restatement Restitution 1(a) (1937). pro comment would have payments contingent vided a vehicle for Plaintiff-Appellant petition filed a for re- success. Because hearing petition on March This formed, and Abt was within its not to implies Judge Judge Posner and it, establish is not entitled to recov Easterbrook should recuse themselves if ery approximating might the dividends SSI they are aware of the circumstances under paid capital might or the value its stock plaintiff departed from the National have achieved. Opinion Research Center. Neither Chief Finally cry there is a of fraud. Judge Judge nor Easterbrook had Posner Stellwagen’s statement that Abt will strive to litigation; plaintiff heard of the before this just establish SSI cannot be called “fraud” aware, reading petition neither was until did not turn out well. There rehearing, plaintiffs departure from Only retrospect. is no fraud statements topic NORC had been a of discussion or materially that were false when made —such controversy University Chicago; at the had no intention of accordingly for recusal. All there basis keeping description “fraud.” Com —fit deny judges panel on the have voted School, Steinberg Chicago pare Medical rehearing. petition rehearing 699, 706, Ill.2d therefore denied. (1977), Berko, with Roda v. 401 Ill. This, howev er, drives us back to the conclusion that nor Abt made a Murray beyond