37 N.W.2d 316 | Iowa | 1949
The original majority opinion in this case was filed December 14, 1948. There was a dissent, and later, on application, a rehearing was granted. We herein reaffirm the original opinion with supplemental comments, all of which are *1251 embodied in the present opinion. The original opinion is therefore withdrawn and this opinion is substituted for it.
Plaintiff seeks recovery of damages for claimed breach of a contract of agency entered into between the plaintiff and the defendants. It is his contention that the written contract which he had with the Minnesota Mutual Life Insurance Company and T.D. Carnahan, its general agent, was modified by an oral contract by which the defendant company agreed to retain him as an agent for his lifetime. Plaintiff claims that this modified contract was terminated by the defendants without cause and that he was damaged thereby. The case was tried to a jury which returned a verdict in plaintiff's favor. Thereafter the trial court sustained defendants' motion for judgment notwithstanding the verdict on the ground that the evidence was not sufficient to show that the prior written contract of agency had been modified so as to provide for a lifetime agreement. Other grounds of the motion were overruled. Judgment was entered in defendants' favor and plaintiff has appealed.
The Minnesota Mutual Life Insurance Company has its home office in St. Paul, Minnesota. It is licensed to do business in Iowa. T.D. Carnahan is a general agent of the defendant company with offices in Des Moines. He has a general agency contract with the company covering thirty-five counties in central Iowa.
On November 1, 1943, the plaintiff entered into an agency contract with T.D. Carnahan, the general agent, as a party of the second part, and the Minnesota Mutual Life Insurance Company as party of the third part. This contract provided that the agency "* * * shall continue during the will and pleasure of the parties hereto subject to termination by any party hereto at any time upon at least fifteen days written notice to the other party; provided, however, that termination for violation of the terms hereof may be made effective immediately upon notice. * * *" The contract further provided for renewal commissions on premiums paid on policies for the second to the tenth policy years inclusive. It also provided that if the agency agreement was terminated there should be deducted from the renewal commissions due the agent a collection fee of two per cent of the five per cent renewal commission. It also provided *1252 that in writing most of the different types of insurance there would be a five per cent renewal commission on subsequent yearly premiums paid. By charging against the renewal premium two per cent of the five per cent, it is shown by the record and discussed in the briefs that the plaintiff was charged a collection fee of forty per cent on the renewal commissions due him. The defendant company does not deny liability for sixty per cent of the renewal commissions due the plaintiff. The forty per cent collection charge against the agent's renewal commission is paid to the general agent for the resulting work and responsibility of collecting the premiums due.
The evidence relative to the purported oral modification of the written agency contract presented by the plaintiff discloses that by July 1945 he was one of the company's leading producing agents, that at or about this time he had received offers of employment in other types of business and that because of this fact he communicated with Harold J. Cummings, vice-president and superintendent of agencies of the defendant company. He received a reply from this official of the company suggesting that he come to St. Paul and there confer with Mr. Cummings and Mr. Carnahan relative to the matters mentioned in plaintiff's letter and that they would spend some time in fishing. The plaintiff and Carnahan made the trip to St. Paul. During the time they were fishing, Mr. Cummings, according to the plaintiff's testimony, discussed the other offers that had been made the plaintiff and is purported to have stated: "Do you think it would be better for Hu Lewis in the long run than a lifetime contract with the Minnesota Mutual?" Lewis' testimony discloses that his reply in part was: "I want to make a decision at my age once and for all. I want to know what my future is going to be for my life security." Cummings is also purported to have later said to Lewis: "* * * it is up to you to make your own decision, that a lifetime arrangement with the Minnesota Mutual and with Carnahan would be to your advantage. There will be two or three reasons why it would be. One is that an insurance organization is a life organization. It goes on and on and on even after individuals replace themselves, and you have got the security with this life association for your future. * * * another thing is your renewals which you *1253 have asked about and which under your present contract would not be valid if you took one of these other offers immediately, because you have not been with the organization quite the minimum date that is required * * * and a lifetime contract with the company, you would not need to worry about your renewals, they would be pyramiding and built up. * * * would talk to Tom [Carnahan] about the idea of a lifetime arrangement or contract with me and also would suggest that the company would immediately organize a training course * * * that would give me information that would be helpful along with the other type of information that he would suggest to Mr. Carnahan * * *."
The plaintiff also testified that after his return to St. Paul from the fishing trip he had a conversation with Mr. Carnahan which was in part as follows: "I said that Harold had mentioned that I should reject these other offers that I had received and make a lifetime contract with Minnesota Mutual, and he said that was a good idea, or that was fine." It is further shown by the plaintiff's testimony that later that evening there was a social function at Mr. Cummings' home and while they were on the front porch Cummings is purported to have said to Lewis, "Hu, have you reached any definite decision about our conversation regarding your future association about — as to a lifetime contract with the Minnesota Mutual Life Insurance Company?" Lewis replied: "Yes, I believe that I had, depending of course upon himself and upon what Mr. Carnahan's decision might be." Cummings then said, according to Lewis' testimony: "Tom, I suggest that Hu's possibility in the life insurance business is rather definite and rather permanent, and I think he should stay with us and work with us during his lifetime. I think he should forget these other offers or turn them down, and I think he should also — he also mentioned at that time that he should use our advertising and promotional facilities and things, and use his own judgment in any other things that he might feel would be to advantage on the firing line to secure business. * * * `What do you think'?" According to plaintiff's testimony, Carnahan then said: "Fine. He ought to lead the company in production." Cummings then said: "Is that agreeable with you, Hu?" Lewis then replied: "It is, providing we *1254 are all agreed that it is a lifetime future and a lifetime association." Cummings then replied: "I am glad we are all agreed." Carnahan during this conversation, according to the plaintiff, said: "`I am glad that Hu has decided to make a lifetime contract to work.' * * * He was glad that Hu had decided to work for us the rest of his life. * * * I don't remember the exact words." Cummings denied that he said in Carnahan's presence that Lewis ought to stay with the company for his life. His testimony is that: "If you take out the words `lifetime contract' it is entirely likely, though I don't remember talking to them in the swing distinctly at all." He also testified:
"The term `lifetime contract' is a novelty to me. It has never been in my mind that I had a right to make a lifetime contract and I have never made one. I don't recall using such a term such as lifetime. I did not use the words `lifetime contract' in discussing Lewis' connection with the Minnesota Mutual. I have never used the words lifetime contract with any other agents in the history of the company. I did not tell Lewis that the advantage of a lifetime contract would be that the company would go on and his renewals would pile up and that with a lifetime contract he would have a continuous lifetime income. We have no lifetime contract with anybody inside or outside of the home office, never have had in all my years. I have explained to many an agent how his renewal income could pile up if he stayed with the business and worked on it, but that is quite another matter than talking about a lifetime job. I don't remember telling Lewis that I would talk to Carnahan about giving him a lifetime contract. I have never thought in terms of a lifetime contract with anybody, didn't think I had any right to do so."
Carnahan denied that he had ever been a party to any conversation with the plaintiff or Mr. Cummings wherein the question of a lifetime contract for Lewis was discussed.
There is testimony of a Mr. and Mrs. Charles R. Brookins that about the 15th of December, 1945, they were in the office of Mr. Carnahan along with Mr. Lewis discussing the possibility of Brookins becoming associated with the Minnesota Mutual Life Insurance Company and that at that time Mr. Carnahan *1255 said that Brookins "would have the same type of contract as Mr. Lewis pertaining to a lifetime deal."
The evidence discloses that in the late afternoon of February 17, 1947, Mr. Carnahan called the plaintiff on the telephone and advised him that his contract with the Minnesota Mutual was terminated immediately and that he should not keep any more appointments or deliver any more policies. Lewis later contacted Mr. Cummings by long-distance telephone in St. Paul and advised him as to these developments. Cummings stated that he would get hold of Carnahan the following day and discuss it with him and then call the plaintiff.
We shall not here comment on the several claims for damages or other testimony presented as the foregoing sets out the matters which are material to a determination of this case in this court. The motion for judgment notwithstanding the verdict was upon the following grounds:
1. That the evidence was not sufficient to support a verdict that the contract was actually altered to cover the plaintiff's lifetime.
2. That even if so altered, there was no evidence that the provision for termination at will was rescinded, and therefore the contract remained terminable at will.
3. That even if so altered, it was terminable at will because there was no mutuality of obligation.
4. That even if there was a wrongful termination, the plaintiff did not offer sufficient evidence from which the jury could determine the amount of his damages with reasonable certainty.
5. (This ground not argued in this court.)
6. That there was no evidence to show that Mr. Cummings was authorized to enter into a lifetime contract of agency and the same was not binding upon the company.
This motion was sustained as to paragraph 1 and overruled as to the other paragraphs.
I. The granting of a judgment notwithstanding verdict is provided for in our Rule 243 of our Rules of Civil Procedure. See also Code section 11553, 1939 Code. Subparagraph (b) of Rule 243 provides that: *1256
"If the movant was entitled to have a verdict directed for him at the close of all the evidence, and moved therefor, and the jury did not return such verdict, the court may then either grant a new trial or enter judgment as though it had directed a verdict for the movant."
See Jensvold v. Chicago Great Western R. Co.,
[1] II. In consideration of the motion for judgment notwithstanding verdict presented in this case we are confronted with the question whether, under the entire record, the court would have been justified in directing a verdict for the defendants at the close of all the evidence. In considering said motion we should follow the same rule we have universally applied in consideration of a motion for a directed verdict, and that is, the evidence as presented and the record made should be considered in the light most favorable to the party against whom the verdict is asked. Our holdings on this question have been so universal that the citation of authorities is not here necessary.
[2, 3] III. Although the trial court sustained the motion for judgment notwithstanding the verdict on the sole ground that the evidence was not sufficient to support the verdict that the contract was actually modified to cover the plaintiff's lifetime yet it is incumbent upon this court to give consideration not only to this first ground of the defendants' motion but also the other grounds set forth. We have held that if there are any grounds in the record upon which a court's ruling can be sustained we should follow the trial court even though it based its holding on some other ground. Cotton v. Southwestern Mutual Life Ins. Co.,
IV. We must not only give consideration to the first ground of plaintiff's motion, but should also keep in mind our previously announced rule that the evidence presented should be considered in the light most favorable to the party against whom the motion is directed and certain other principles of law concerning which we shall comment. *1257 [4] The plaintiff's claim for damages is based upon the cancellation of his claimed lifetime contract. In considering a contract of this character we should give attention to the statements of this and other courts relative to such agreements. In the case of Paisley v. Lucas, 346 Mo. 827, 842, 843, 143 S.W.2d 262, 270, 271, the Missouri court in commenting upon this question quoted from the case of James Maccalum Printing Co. v. Graphite Compendius Co., 150 Mo. App. 383, 391, 392, 130 S.W. 836, 838, as follows:
"`The courts are prone to hold against the theory that a contract confers a perpetuity of right or imposes a perpetuity of obligation. Yet it seems to be the law in this state that where the intention to do this is unequivocally expressed, the contract will be upheld. * * * But in this jurisdiction, as in others, courts will construe a contract to impose an obligation in perpetuity only when the language of the agreement compels that construction.'"
Later in the Paisley case it is stated by the writer of that opinion that: "A contract for life will be upheld only where the intention, that the contract's duration is for life, is clearly expressed in unequivocal terms."
In the case of Faulkner v. Des Moines Drug Co.,
"It is not conceivable that in entering into the contract in suit plaintiff supposed he was entering a service from which nothing but death or the consent of the defendant could relieve him. It is equally incredible that defendant supposed or understood that it was thereby taking into its employment a person whom it was bound to retain in its service until such time as that person should consent to his own discharge. If we should hold the contract enforceable according to its literal terms, the defendant could never abandon or sell or dispose of its business without plaintiff's consent, even though its prosecution entailed certain loss or bankruptcy * * *."
A review of the record satisfies us that there was an insufficiency of evidence to show that the contract was modified. *1258 At most it is shown that there was some consideration given to a change of contract but we are unable to hold that it was definitely modified. The evidence is too indefinite.
[5] As to the definiteness of a contract it is stated in Ingram-Day Lumber Co. v. Rodgers,
The argument that there is no decision comparable factually to the case at bar is incorrect. There are numerous cases where the facts are similar. See Heideman v. Tall's Travel Shops,
These cases were not only stronger in their facts than the present case, but each one involved a contract of employment by which the plaintiff agreed to perform specified services for the defendant, as distinguished from a contract of agency. The holding in all of these cases was that no lifetime contract existed.
In the case of Faulkner v. Des Moines Drug Co., supra, the agreement was for employment at twenty-five per cent of the net profits until mutually agreed void. Since such agreement, if enforceable, could only be terminated by the consent of both parties, it would be indistinguishable from a life contract, but in that case the court held that it was unenforceable or uncertain as to time of employment, and further held that it was unenforceable by reason of the fact that there was no basis or standard upon which the damages for breach of contract could be ascertained. This case is cited and approved in Gould v. Gunn,
For other cases dealing with indefiniteness of lifetime contracts see Maxson v. Michigan Cent. R. Co.,
The contention of defendants is that in the absence of some addition to the services to be rendered there was no more than an indefinite general hiring, terminable at will. See Heideman v. Tall's Travel Shops, Lightcap v. Keaggy, and Minter v. Tootle-Campbell Dry Goods Co., all supra. This is the holding in Lynas v. Maxwell Farms,
It was held in Rape v. Mobile Ohio R. Co.,
[6] V. In the instant case there is an absence of evidence showing that there was any additional consideration for the claimed lifetime agreement. The giving up of the opportunity to take other employment cannot be held to be an additional consideration. Skagerberg v. Blandin Paper Co.,
We will consider cases cited. In Littell v. Evening Star Newspaper Co., 73 App. D.C. 409, 120 F.2d 36, there was a finding that there was no contract of permanent employment. In Eggers v. Armour Co. of Delaware, supra, the plaintiff proved he was employed as a watchman or any work that he was physically able to perform. In the case of Abbott v. Arkansas Utilities Co., 8 Cir., Ark., 165 F.2d 339, the plaintiff agreed to serve as consulting engineer for the defendant and hold himself in readiness at all times to act in that capacity, and not to engage in any work that would be in conflict with the interest of the defendant. Each case differs from the facts in this case, and so in Elwell v. State Mutual Life Assur. Co.,
In Iowa the effect of the contract just quoted is determined in the case of Meredith Publishing Co. v. Iowa Employment Sec. Comm.,
It is claimed that the promise to turn down the other offers finds support in certain cases cited, none of which holds that the mere rejection of other offers of employment as distinguished from the giving up of actual existing employment or an independent business constitutes such an additional consideration. It is urged that the promise by the plaintiff to turn down other offers was an additional consideration for the modification of the original contract. We do not think the authorities support such a conclusion.
In Fletcher v. Agar Mfg. Corp., D.C. Mo.,
The defendants argue that the only case relating to the rejection of another offer is Skagerberg v. Blandin Paper Co., supra, where it was held not to constitute an additional consideration. Kirkley v. Roberts Co.,
"In most of the jurisdictions passing on the duration of *1263 a contract purporting to be for permanent employment, it is held that, in the absence of additional express or implied stipulation as to the duration of the employment or of a good consideration additional to the services contracted to be rendered, a contract for permanent employment, for life employment, for as long as the employee chooses, or for other terms purporting permanent employment, is no more than an indefinite general hiring terminable at the will of either party." Citing cases.
[7] VI. It has been uniformly held that where one party to a contract is not bound to perform it and cannot be held liable for failure of performance there is a lack of mutuality and it is unenforceable. We hold that there was no mutuality of obligation in the so-called lifetime contract because Lewis was under no obligation to continue his service as an agent for the period of his lifetime. This is denied by plaintiff who claims Lewis did testify that he promised to remain as a subagent for the remainder of his life. We doubt that the record shows any such express agreement. What seems to be considered by the plaintiff as such an agreement was a conversation which was casual, at best, and the agreement, if it be called such, was when Cummings, a vice-president of the company, the general agent and the plaintiff in a general conversation were discussing the plaintiff's relation to the company, and, as heretofore stated, Cummings, the vice-president, mentioned to Carnahan, in one part of the conversation: "Tom, I suggested that Hu's possibility in the life insurance business is rather definite and rather permanent, and I think he should stay with us and work for us during his lifetime." To Lewis, Cummings stated: "Is that agreeable to you, Hu?" And he (Lewis) said: "It is, providing that we are all agreed that it is a lifetime future and a lifetime association," and Cummings said: "Fine. I am glad we are all agreed."
[8] On the basis of such alleged promises plaintiff claims modification of his original contract. This was not a case of employment. The agent was an independent contractor and not an employee. See original contract. Under his original agreement he could choose his own time, his manner of work, and do as little or as much as he chose in soliciting applications *1264
for the defendants. He was free to go to any place within his territory to visit such prospects as he desired or free not to solicit at all. See Neola Elevator Co. v. Kruckman,
It is argued by plaintiff that if the contract should be breached by Lewis the Minnesota Mutual would have the remedies afforded for the breach of any contract. This is erroneous, as the company would have no remedy if Lewis had done no work under the contract or had failed to secure the minimum twelve applications. He could have gone to work in other business or for other insurance companies and nothing in the agreement or modification of the original contract afforded the defendant company any remedy. It must be remembered that the contract and the alleged modification thereof were not exclusive. He was, in effect, a free agent and could occupy his territory without interference from his company if the contract was as alleged by him and with no right on their part to terminate, except for reasons specified in the original contract. The detriment to the company of such an agreement, should he so choose, is obvious. The only right of termination given in the contract is for the violation of the terms thereof, and the only breach would be the failure to remit premiums collected, or the solicitation of applications in territory in which he or the company was not licensed. If plaintiff's argument is correct, then "the defendants were tied to the plaintiff for the remainder of his natural life, no matter how he conducted himself, unless he committed a breach of one of the above provisions, while he remained absolutely free to devote to the sale of life insurance as much or as little time as he saw fit or in fact to do nothing whatever under the agency contract," as stated by defendants in argument. Mere lack of mutuality in and of itself does not *1265
render a contract invalid. Standard Oil Co. v. Veland,
"If the lack of mutuality amounts to a lack of consideration, then the contract is invalid. But mere lack of mutuality, in and of itself, does not render a contract invalid. If mutual promises be the mutual consideration of a contract, then each promise mustbe enforcible, in order to render the other enforcible. Though consideration is essential to the validity of a contract, it is not essential that such consideration consist of a mutual promise. A promissory note for a consideration is valid, though no mutuality appear thereon. This is true of all unilateral contracts which are supported by a consideration." (Italics ours.)
It is apparent that the promise of Lewis to work for the defendants was not enforceable since whether he worked or did not work, whether he took up outside lines of employment or did not, the amount of service which he rendered to the defendants would be entirely at his own option and he would not be financially liable for a failure. If Lewis could refuse at will to continue to solicit applications for life insurance in the defendant company, which in practical effect was a revocation, the right to mutuality of contract must be granted to the defendants. See Terre Haute Brewing Co. v. Dugan, supra. But it is contended that even though there was lack of mutuality there was still a valid consideration, plaintiff urging that the promise to reject other offers of employment was a valid consideration. Such a rejection was not an additional consideration to the promise to render service.
Plaintiff refers to Kirkley v. Roberts Co., supra, where an existing position was given up. In the Kirkley case the contract was a contract of employment which created the relationship of employer and employee and which bound the plaintiff to give his sole and undivided attention to his employment and to faithfully and diligently perform the duties thereof. Plaintiff's counsel contend that Lewis promised "to work" for the defendants and that this was a sufficient consideration to create a valid nonterminable lifetime contract. The weight of authority *1266
is contrary to this contention. See authorities heretofore cited, also, Wallach v. Mendelson,
"If the plaintiff has under his agreement the power to keep his promise to continue in the employ of the defendant and yet devote to his employment as much or as little time as he chooses, or in fact to perform no services under his employment, then the performance of his promise would clearly constitute no detriment to him and no benefit to the defendants."
The additional considerations suggested by plaintiff and specified by him were provisions of the original written contract. They cannot be a consideration for the alleged oral modification of the contract so as to make it a nonterminable contract to run for the plaintiff's lifetime. There was nothing in the alleged oral modification to constitute any promise on his part to devote his full time. In cases cited by counsel for the plaintiff which involved contracts of sales agencies, which the court termed valid and enforceable, we do not find any support for the view that the contract at bar is valid because there is mutuality of obligation. In Hichhorn, Mack Co. v. Bradley,
Counsel for plaintiff also referred to cases involving certain sales-agency contracts as in Rosenberger Co. v. Marsh Co.,
As to damages, it is argued by plaintiff that this is not an issue on this appeal, but that he was entitled to damages for $
While the plaintiff in written reply argument cites Pierce v. Tennessee Coal, Iron Railroad Co.,
[9] VII. Another question that was presented in connection with defendants' motion for judgment notwithstanding the verdict was the matter of the authority of Harold J. Cummings as vice-president of the defendant company to modify the prior written agreement and enter into a lifetime contract. In the case of Ney v. Eastern Iowa Tel. Co.,
The case of Heaman v. Rowell Co.,
"Alleged contracts of life employment are, however, so unusual as to have been, with rare exceptions, condemned by the courts as unreasonable and unauthorized. The president or other executive officer of a corporation has no authority as such to make a contract that one should remain in the corporate employ for life even under a general power `to appoint, remove and fix the compensation of employees.' That any board of directors or other persons responsible for the management of a corporation should give such unusual power to an executive officer cannot be implied. Plain language of the managing board, clearly showing that such was the intention of the corporation, coupled with power actually or impliedly vested in the corporation itself, must be found to justify such a hiring." Citing cases.
Other authorities on this same question include in part the following: First National Bk. v. Cement Products Co.,
There is no evidence presented on the part of the plaintiff that Harold J. Cummings had authority to enter into the *1269 claimed lifetime contract. In fact the by-laws which were introduced in evidence definitely provide that vice-presidents of the company shall have only such power and perform such duties as may be assigned to them by the board of trustees or the president. These by-laws also disclose that there shall be an agency committee which shall have general supervision over the agents of the company and shall have power to regulate and control the agency policies of the company. It is therefore very definitely shown that the defendant company had in no way authorized Cummings, the vice-president, to enter into such a contract as claimed by plaintiff. On the contrary it is shown that a vice-president would not have had such authority to enter into such an agreement.
It is suggested that on the question of authority apparently either the by-laws are subject to some exceptions or the matter was later reported to the agency committee. Of course there was no evidence of that nature, and this is merely a suggestion without any evidential basis whatever or any inference which could be drawn from any of the evidence, and in such cases, with nothing before it, the jury had no right and could not determine that such was the fact. An assumption is no fact, nor an evidential basis to support an inference that such a contract was reported to the agency committee. Defendants in their original argument cited numerous cases on authority. Plaintiff in his reply brief also cites a number of cases, some of which were the same as referred to by the defendants, and are relied upon by plaintiff as supporting plaintiff's contention as to authority. We shall refer to these.
In Riefkin v. Du Pont de Nemours Co., Kirkley v. Roberts Co., and Littell v. Evening Star Newspaper Co., all supra, the question of authority of a corporate officer to bind the corporation was not involved. The remaining cases may be considered as follows:
1. Authority may be assumed in matters pertaining to the ordinary course of business in the absence of evidence showing direct lack of authority as shown by Citizens Bank v. Public Drug Co.,
2. There is no lack of authority when there has been approval or subsequent ratification by authorized officers, and to sustain this proposition see Fletcher v. Agar Mfg. Corp., supra, involving approval, and of ratification in Baltimore Ohio R. Co. v. Foar, 7 Cir., Ind., 84 F.2d 67; White v. Elgin Creamery Co. and Webster County Buick Co. v. Nebraska Buick Auto. Co., both supra.
3. Contracts by a subordinate officer in an emergency are binding on the corporation because of the necessity of prompt action in such an emergency. Citing Hahnemann Hospital v. Golo Slipper Co.,
4. An exception in the case of contracts for life employment in a capacity not involving responsibility, made in the settlement of claims for personal injuries, see Royster Guano Co. v. Hall, 4 Cir., N.C., 68 F.2d 533, and Eggers v. Armour Co. of Delaware, supra, where the employee was disabled in the line of duty. Other cases support the exception to the general rule which is also referred to as an exception in the Eggers case.
5. The majority of courts have made a special exception to a general rule with respect to the authority of stock selling agents to make contracts for the repurchase of corporate stocks. Citing Murray v. Standard Pecan Co.,
In the Baltimore Ohio R. Co. case, supra, there was evidence of ratification and the agreement was admitted, but in the present case the agreement was denied, and there could be no inference, therefore, that if Cummings had acted without authority that he had reported the agreement to the board of trustees. The Eggers case, supra, was an exception to the general rule, as it concerned a contract with a disabled employee which the court said could not be distinguished from a contract made in settlement of a claim for personal injuries. In the case of Grismore v. Consolidated Products Co.,
Defendants' counsel in argument urge that the contract might prove a very serious burden to the defendants in that plaintiff had already had some bitter controversy with the general agent and was guilty of conduct which would promote trouble in the agency and interfere with the building up and maintaining an efficient and harmonious organization; that it would be hard to believe that an experienced superintendent of agencies or general agent would bind himself to give an agent a lifetime job with no other consideration on the agent's part than a promise to continue. Citing and quoting Faulkner v. Des Moines Drug Co., supra, in which the court said at page 122 of 117 Iowa, page 586 of 90 N.W.: *1272
"It is equally incredible that defendant supposed or understood that it was thereby taking into its employment a person whom it was bound to retain in its service until such time as that person should consent to his own discharge."
We are satisfied that on the question of authority the motion for judgment notwithstanding the verdict was properly sustained.
We have followed carefully the arguments of counsel. We are satisfied that the questions raised by plaintiff have been fully answered by the defendants; that the action of the district court in sustaining the motion for judgment notwithstanding the verdict was correct and should be and is affirmed. The original opinion in this case is hereby withdrawn and this opinion substituted therefor. — Affirmed.
SMITH, MANTZ, WENNERSTRUM, and HAYS, JJ., concur.
OLIVER, BLISS, GARFIELD, and MULRONEY, JJ., dissent.