*1 employer may be award, Why exempted an “any judgment and pay back liability and the unions under some circumstances com- N & W against be should plying N & W with a state law and condemned to severally, or jointly and pegged liability on two law is holding complying is a federal solely.” This good mere an inconsistency acceptable, The first is that I do not think propositions. bring about a dis- employer and no reason exists to fashion such efforts faith enough escape liabili- are not tinction. compliance judgment the second is that
ty; and Finally, protest I the reasoning of the financially responsible “a must be majority that an be made award should party.” because it against any party any lawsuit is This is a financially faith efforts of solvent. kind good proposition Robin not and compliance justice Hood which I do bring about railroad to 1(a) in not subscribe in footnote to. explained enough is must employer stated that which it is “[t]he assiduous effort” a more
demonstrate escape here in order presented
has been Referring back to pay. for back
liability 31,1968, we see that it letter of October undenied, and that
is unconditional 974, rejected by Local one representative tiffs in this case and REAMER, Appellant, Richard R. plaintiffs. and class How an the individual can make a more “assiduous ef- employer STATES of America et The UNITED an unconditional offer is fort” than to make al., Appellees. I find difficult to understand. something nor majority opinion, And neither briefs, any- suggested nor United States Court of other could have done thing railroad offer. than to make an unconditional 5, remember, May connection, Argued it is well to In this in his dissent Field by Judge as mentioned Williams, et a l v. Nor in the allied case of Railway, 4 Western
folk & governed by the railroad is Act, 45 Railway Labor
provisions Tenth, Seventh
U.S.C. § that no carrier shall only provide em working conditions of its
change the prescribed in a manner other than
ployees statute, criminal but also
by the sugges violation. So
penalties the railroad should majority that
tion of the action, think, cannot unilateral
have taken Along the a matter of law. supported as Moody v. Albe line, opinion our Company, 474 F.2d Paper
marle ordinarily pay should 1973), that back circumstances unless
be awarded unjust, takes an award render such involving em note 5 cases account in
into law. a rule of state complying with
ployers *2 Shearin, V. Atty. (N.
Ronald Asst. U. S. Jr., brief), Atty., on Tilley, Carlton U. S. appellee. HAYNSWORTH, Judge, Chief
Before Judge, BOREMAN, Circuit Senior Judge. HAYNSWORTH, Judge. Chief an enlistment In this action for breach of contract, claims that the mili- tary agreed to until after he had reserves school. The district finished a semester of contained no court found that the contract agreement We affirm.
In Reamer the summer of Richard ready year of law to enter his second school, but the Service had classi- Selective contacting various fied him as 1—A. After units, given opportunity reserve Salisbury, join reserves August North Carolina. On contract, Cap- signed an enlistment which tain Dominick and Warrant Officer Wall negotiated military. behalf enlistment contract is in the
Reamer’s fifty-three paragraphs usual form. Its first contain about him and about obligations undertaking. Paragraph provides: fully explained
I have had this contract it, certify that no understand been made to me kind has duty, geograph- assignment area, programs, schooling, ical as- signment quarters, or except transportation dependents as acknowledgment of indicated in attached requirements. understanding service signed In to attest his paragraph 55 Reamer infor- understanding of and the truth of the mation in the clauses. The “Remarks,” paragraph, contains entitled typed “Delayed statement: on ACDUTRA or active enlistment, 69.” After that the oath of Loflin, III, (Loflin, Durham Thomas F. Reamer, Durham, C., Loflin, and the confirmation of Anderson & N. enlistment, brief), appellant. signed by Dominick. understanding the army promised whether to delay “acknowledgment to in the plaintiff’s referred Reamer requirements,” of service sepa- is a argues enlistment that the contract is and unam- body of the clear signed at the document, Reamer biguous on its face and that the district rate contract. time that he executed court should not have considered the oral *3 with a vari- the enlistee supplies para- That form in a testimony. Except they that are military obliga- entitled, “Remarks,” words, about ety of the graph “I will enter tions, including the statement: “[d]elayed from on ACDUTRA or ac- training period for a duty 69,” do, face, on duty tive on their -* days date, weeks within 120 of this plaintiff the the indicate that accorded longer for a is autho- delay unless a Nonetheless, paragraph desired 54 of the by Department the rized or directed provides that the enlistee has received no Army.” “assignment to promises duty” about his acknowledgment. in the except as set forth testified hearing, Captain It a Dominick express 54 contains refer- paragraph Since paragraph in 56 that the statement type duty, the ences to the location and that the offi- a recommendation only duty” readily to un- “assignment words He that to enlistees. explain cers tried to assign- the time of the derstood to include with Ream- discussing remember it did not in the “remarks” sec- ment. The statement however, Wall, testified that he er. Mr. acknowledgment; repeated tion in the is not he could not twice that plaintiff told the instead, go enlistee will it that the special and that military delay to a bind the days, “unless a duty within 120 the Third permission is authorized or delay longer period thought Army. Reamer testified Department Army.” of the directed the oper- in the contract did that the statement paragraph acknowledgment and Since the that delay ate to his active Under conflict, the court appear to district the fall semester at impression, began he testimony properly consider oral could University the of North Carolina School expenses parties’ number of ascertain the intent. See Shelton Law and incurred a Army Brunson, 1972). the necessary for his studies. When F.2d 144 See duty on December Laird, ordered him to active also Gausman v. leave school without obliged the
finishing semester. plain- of the in favor A further Reamer filed this suit the United paragraph 56 tiff is in that the statement States, and Dominick to recover his Wall delay re- supplied the authorization unfinished semester. expenditures for the Read quired acknowledgment. in the complaint, The court dismissed the district fashion, complement that the two clauses “remarks” section of the finding that the other, ambiguity re- each is no and there because part form was not a of the contract can-We quiring a evidence. resort to oral plaintiff the had in the the two accept interpretation that found, fact, It as a that Wall paragraph. acknowledgment clauses however. The plaintiff the that he could not bind told the authorization that requires specifically to a and that did Army. of the Department come from the misrepresent facts the au- and Dominick had Although Wall reporting Accordingly, tiff’s date. it held military to enlistment thority to bind express the defendants had made no that acknowledg- contracts, of the the words representation that implied Reamer would delay for more than 120 that a signify ment February not be called to active before part of an enlistment routinely days is not 1, 1969. permission from a contract and that required. The higher authority is we think that Since officers had the two apply we must does not contend that was a of the grant permis- authority law to determine the actual rules of contract outlined above was not followed in Ream- Thus, words of the contract do sion. Department suggests of the no rea- er’s case. The not indicate delay, and there was why son Reamer. Army authorized discriminated in the contract. was then ambiguity Nothing could clearer court to consider oral proper for the district “delayed the words contemporaneous state- testimony about February, until 1 or active ACDUTRA explanations parties of the ments and appearing 1969” ambiguity. resolution majority so the empty promise, But it anis are not clear- findings point court’s holds, delay was not “authoriz- because the erroneous, must be affirmed. ly its decision ed or directed says also that his claim hold that the officers My brothers Army.” have been promissory estoppel Reamer dealt and whom *4 considered even after the contract claim to the enlist- signature who obtained pro failed. He relies the Restatement’s represented ment contract promisor promise vision that getting him purpose of Army “[a] for the to induce action or reasonably expect purpose not for the sign but promisee forbearance on the delay in it. It is a putting the words of does induce such person a third and which and one to distinction too fine injustice binding action or forbearance is if which I cannot assent. only by can be avoided enforcement of the Army, In the new era of the volunteer (Second) promise.” Restatement of Con surprised am would tracts 90. The essence of the denial of want what it now has obtained: a decision contract claim is that no of a which, publicized, by pro- if must be read Furthermore, delay was even if the made. spective Warning! enlistees to mean: You technically construed to con contract were your terms of safely upon rely promise, tain a the defendants could not reasonably expected have rely, reasonably and the could not relied, on the statement in permis
56 after he had been twice told that higher
sion for the
authorities. we find no merit in the other claims of evi-
of error admission court, we affirm dence in the trial to the DISTRIBUTORS, INC., BRAND the judgment of the district court. Plaintiff-Appellant, Affirmed. Judge (dissenting): COMPANY OF NORTH INSURANCE AMERICA, Defendant-Appellee. The United loses when it treats States it is In this case unfairly. one of its citizens stipulated proce- that “. . . the usual Army
dure and the Reserve in United Court States containing enlistment contracts terms simi- action is to
lar to the one in in this dispute Argued May contract to the enlist- return the enlistment ing the enlistee that the officer and inform will such a term but Army will not honor to rescind
give the enlistee a chance . . . .” is fur-
contract if he desires procedure stipulated
ther