This is a diversity action for breach of contract and fraud arising out of an employment agreement between plaintiff/appellant and cross-appellee Robert Stoetzel (Stoetzel) and defendant/appellee and cross-appellant Continental Textile Corporation of America (Continental). At trial, a jury awarded Stoetzel $69,808 for breach of contract. On appeal, Stoetzel seeks reversal of the order of the District Court 1 dismissing his claim for punitive damages and a new trial on that issue. In its cross-appeal, Continental seeks reversal of the judgment entered on the jury verdict and a directed verdict in its favor. We affirm.
I. Facts
In 1981 Stoetzel was an employee of the White Knight division of Will Rogers, Inc. (White Knight) in New Jersey. White Knight sells textile products to health care providers. Stoetzel had been at White Knight for ten and one-half years and was a Regional Sales Manager. At a convention in Atlanta in the spring of 1981, Stoetzel saw his friend Robert Ihrke, an employee of Continental. At the convention Ihrke introduced Stoetzel to Leo Weiss, the president of Continental.
On returning to St. Louis, Weiss suggested to Ihrke that he attempt to get Stoetzel to work for Continental. Ihrke also was interested in having Stoetzel join Continental and pursued the matter with *220 Stoetzel by telephone. At first, Stoetzel was uninterested, because he had a secure position of over ten years with White Knight and was happy with his employment. Ihrke, however, was persistent and Stoetzel agreed to meet with Bob Gathman of Continental in order for Gathman to tell Stoetzel more about Continental. This meeting occurred in January 1982. Stoetzel was told that Weiss and Ihrke were very impressed with him and wanted him to join Continental.
In March 1982, Ihrke again spoke with Stoetzel and asked him to come to Continental’s headquarters in St. Louis for an interview. Stoetzel agreed, and a meeting was held in April 1982. Stoetzel, Weiss, Ihrke, Gathman and Pam Reynolds, a senior vice president of Continental, attended the meeting. At the meeting, Weiss asked Stoetzel what it would take to get Stoetzel to join Continental. Stoetzel had two requirements. First, Stoetzel desired managerial duties over other sales personnel. Second, since Stoetzel was married and had two children, he refused to abandon his established sales position of ten and one-half years without some assurance of job security. The three Continental participants in this meeting who testified all stated that they understood that job security was one of Stoetzel’s requirements. They told Stoetzel that his requirements would be met. Stoetzel was told that he would be given a two-year contract. Stoetzel told Continental that he was satisfied with the offer, but would have to discuss it with his wife. On receiving his wife’s agreement, Stoetzel accepted Continental’s offer of employment on the terms agreed to at the April 1982 meeting, which provided for a salary of $45,000 per year, a $265 a month automobile allowance, and a minimum term of two years.
Stoetzel resigned his position at White Knight and began working for Continental on May 23, 1982. During the week of December 1, 1982, six months after Stoetzel started work, Gathman presented Stoetzel with a written two-year contract. Included in this agreement was the following clause:
employment hereunder may be terminated by either party upon giving written notice of an intention to terminate. Such notice shall be given solely in writing at least thirty (30) days prior to the effective date of termination.
This was the first Stoetzel had ever seen or heard of a termination provision. Stoetzel told Gathman he would have to have an attorney look at the contract prior to signing it. Ten days later, before Stoetzel had consulted with an attorney, Weiss called Stoetzel and told him he was fired as of that day, December 10, 1982. He was told that the firing was part of a general personnel reduction at Continental.
Both Stoetzel and Continental presented a substantial amount of evidence regarding Stoetzel’s job performance and behavior during his tenure at Continental. On Stoetzel’s behalf, several former Continental employees and managers testified that Stoetzel had some success in training sales personnel. One salesman under his supervision went from being a poor salesman on the brink of being fired to being chosen Continental Salesman of the Month for two consecutive months. Another salesman Stoetzel worked with also made substantial, if less dramatic, progress and is now considered one of the best salesmen in the company.
On the other hand, Weiss commented that the profit margins on Stoetzel’s sales were low, and both Weiss and Pam Reynolds testified that Stoetzel spent too much money entertaining customers. Weiss also expressed his displeasure at the fact that Stoetzel became intoxicated on alcohol at a training seminar for new employees. This occurred shortly after Stoetzel became an employee of Continental. At the end of the seminar and after working hours, several Continental employees were celebrating the end of the training session. Stoetzel was not the only Continental employee drinking at the celebration. There is no indication that Stoetzel was an alcoholic or that his drinking had any adverse impact on his job performance.
*221 The case was submitted to the jury under the alternative theories of fraudulent inducement and breach of contract. The jury returned a verdict in favor of Stoetzel on the breach of contract claim for $69,808. This appeal and cross-appeal followed.
II. Discussion
The appeal and cross-appeal raise several issues, which we will discuss in sequence. We first consider Continental’s argument raised in its cross-appeal that Stoetzel’s evidence was insufficient to show that a contract had been made. Next we address Continental’s claim that the Statute of Frauds bars enforcement of the oral contract. Then we turn our attention to Continental’s arguments concerning the adequacy of several of the jury instructions. Finally, we consider Stoetzel’s contention that the issue of punitive damages should have been submitted to the jury.
A. The Existence of the Contract
Continental contends that the evidence demonstrates that no contract was ever reached between the parties. It argues that none of its officers ever meant to give Stoetzel a two-year, “no cut” contract without a termination clause and thus that there was no meeting of the minds on the terms of the contract. Moreover, Continental contends that since reference was made to Stoetzel’s signing a standard two-year contract, the negotiations at the April 1982 meeting could not have been complete since the agreement contained terms not discussed at that time. We disagree. One’s assent to a contract is not determined by what one thinks yet fails to say, but by what one says and does. “Though there must be a meeting of the minds of the parties to constitute a contract, such meeting of the minds is to be determined by the expressed, and not by the secret, intention of the parties.”
Roper v. Clanton,
Here, there was sufficient evidence for the jury to conclude that an employment contract meeting Stoetzel’s stated requirements for the position — namely salary, duties, and job security — was offered by Continental at the April meeting and that Stoetzel accepted this offer shortly thereafter. Although in the contract thus made terms such as fringe benefits were not set in stone, such items are merely collateral to the main agreement, in which Stoetzel was assured of a minimum two-year contract at a salary of $45,000 a year, plus a $265-a-month automobile allowance. The same is not true of the termination clause. Three of Continental’s representatives in the April 1982 negotiations have admitted that they knew at that time that job security was one of Stoetzel’s requirements. Prior to asking Stoetzel to sign Continental’s standard contract in December 1982, Continental did nothing to indicate to Stoetzel that any of the terms of that contract would materially change the essential provisions of the agreement negotiated at the April 1982 meeting. The jury could reasonably have concluded that Stoetzel never would never agreed to leave his secure position of ten years had he been told that his new employer could fire him for any reason on thirty days notice. Similarly, the jury could have concluded that if a written agreement was contemplated by the parties, it was intended to serve merely as a memorialization of a contract that already had been formed. We are satisfied there is sufficient evidence in the record to support the jury's conclusion that a two-year employment contract at a salary of $45,000 a year with an additional $265-a-month car allowance was offered at the April 1982 meeting, that the offer contemplated that Stoetzel would be employed for the full two-year term unless there was just cause for his earlier dismissal, that Stoetzel accepted that offer, and that the *222 resulting contract was breached by Continental.
B. The Statute of Frauds
In its answer and in its motion for directed verdict at the close of plaintiffs case, Continental sought to have the contract claim dismissed as being barred by the Missouri Statute of Frauds which states in pertinent part:
No action shall be brought ... upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith____
Mo.Rev.Stat. § 432.010.
Continental correctly points out that the employment contract Stoetzel seeks to enforce was oral and for a period exceeding one year. Continental argues that the Statute of Frauds is by its plain language a complete defense to Stoetzel’s contract claim.
Although the trial court overruled Continental’s motion for summary judgment and subsequent motion for directed. verdict, there is in the record no statement of the trial court’s reasons for removing the contract from the operation of the Statute.
2
We may, however, affirm on any ground supported by the record, even though that ground was not directly addressed (or addressed at all) in the court below.
Brown v. St. Louis Police Department,
Stoetzel argued to the trial court that two exceptions to the Statute are applicable to this agreement. First, Stoetzel argued that Continental’s failure to object to the admission of evidence establishing the oral agreement constitutes a judicial admission which precludes Continental from asserting the Statute of Frauds as a defense even though it was pleaded. Continental contends that the Statute is still available as a defense even if the defendant admits the oral agreement. Missouri cases on this issue are in conflict.
Compare Sheinbein v. First Boston Corp.,
*223
Stoetzel also argued for application of the doctrine of part performance to remove the contract from the operation of the Statute. Part performance, however, is available in Missouri as an exception to the Statute only in equitable actions, not in cases at law.
Shy v. Lewis,
A district court’s ruling on an uncertain question of the law of the state in which it sits is entitled to great deference.
Orlando v. Alamo,
C. The Adequacy of the Jury Instructions
Continental contests the adequacy of four of the jury instructions. 4 The first contested instruction, set forth below, dealt with the mutually exclusive nature of the remedies sought by the plaintiff:
Instruction 6: The plaintiff has alleged alternatively that either he was given a two-year contract by the defendant and thereafter the defendant breached said contract, or, the defendant committed a fraud based on the misrepresentation that the plaintiff would receive a two-year contract.
One remedy mutually excludes the other. If you find that the defendant did in fact give the plaintiff a two-year contract and thereafter breached the same, then you cannot find that there was a fraud. On the other hand, if you find that a two-year contract was not given, then you may find for the plaintiff on the issue of fraud.
If you find that defendant did not give plaintiff a two-year contract you cannot find for the plaintiff on that issue. If you find that defendant did not commit a fraud based on the misrepresentation that plaintiff would receive a two-year contract, you cannot find for the plaintiff on that issue.
Designated Record (D.R.) at 34. The first two paragraphs of this instruction, with one immaterial change, are based on an instruction proposed by Stoetzel. The third paragraph was added by the court, and was accepted by Stoetzel without objection. Continental contends that this instruction was confusing and ambiguous, and warrants reversal. It argues that the instruction presented the jury with an “either-or” proposition that required the jury to find for Stoetzel under one of the two theories submitted. We disagree. The instruction begins with an accurate statement of the
*224
mutually exclusive nature of the remedies sought by the plaintiff. This discussion is followed by a brief statement of the circumstances under which each remedy is available. Continental argues that the use of the phrase “on that issue” in discussing each of the theories of recovery was confusing to the jury and that an ordinary layman could not have determined to which issue the phrase referred. This argument is without merit. Although the phrase “on that issue” is used in discussing each of the theories under which Stoetzel may recover, each theory of recovery is discussed in a separate sentence, thus making it highly unlikely that a jury would be confused by the discussion. In any event, “[w]here the charge to the jury correctly sets forth the law, a lack of perfect clarity will not render the charge erroneous.”
Roth v. Black & Decker, Inc.,
Continental also asserts that the breach of contract instruction was erroneous:
Instruction 7: With regard to the allegation of the plaintiff that the defendant breached its contract with the plaintiff your verdict must be for the plaintiff if you believe:
First, that the defendant offered to employ plaintiff for a minimum period of two years, and
Second, that the plaintiff accepted said offer, and
Third, that the defendant terminated said employment without just cause prior to the expiration of two years, and
Fourth, plaintiff was thereby damaged.
D.R. at 35. Continental argues that 1) the instruction fails to set forth its theory of the case in that it fails to mention the thirty-day termination clause, and 2) the instruction does not require the jury to find the existence of the contract in order to award damages. The second point borders on the frivolous: by asking the jury to determine if an offer was made by Continental and to determine if Stoetzel accepted the offer, the instruction plainly asks the jury first to determine whether a contract existed. The first point misapprehends the law. As plaintiff, Stoetzel is entitled to have the jury instructed in accordance with his theory of the case if it is “legally correct, supported by the evidence, and brought to the court’s attention in a timely request.”
Board of Water Works Trustees v. Alvord, Burdick & Howson,
Instruction 7(A): When the term of an employment contract is indefinite, the employment is terminable at will, with or *225 without cause. Therefore, unless you find that defendant agreed to employ plaintiff for a minimum term of two years, your verdict must be for defendant on plaintiffs claim for breach of contract.
D.R. at 36. Thus, the jury was instructed that if it determined that the contract was not for a specific term as Stoetzel alleged, Continental had the right to terminate Stoetzel at will. In short, the essence of the controversy — whether or not Continental had the right to terminate Stoetzel without just cause prior to the end of the two-year term — was presented to the jury on proper instructions.
D. The Punitive Damages Claim
Stoetzel asserts that the District Court erred in dismissing his claim for punitive damages. In support of his contention he cites
Crues v. KFC Corporation,
We agree with Stoetzel that in the present case the District Court ruled inconsistently by submitting the fraud claim to the jury, but granting a directed verdict on the issue of punitive damages. However, as discussed
supra
at 223-224 the District Court instructed the jury that the theories of fraudulent inducement and breach of contract are mutually exclusive. One recent Missouri case holds that, while a plaintiff may receive only one satisfaction for his loss, if different damages are pleaded and proved under each theory, a plaintiff may recover damages under both theories.
Clayton Brokerage Co. of St. Louis, Inc. v. Pilla,
III. Conclusion
We have reviewed the other arguments of the parties and find them to be without *226 merit. Accordingly, we affirm the judgment of the District Court.
Notes
. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.
. When Continental made its motion for directed verdict, both parties presented oral arguments to the trial court regarding the applicability of the Statute. After the trial was over, Continental moved for judgment notwithstanding the verdict on several grounds, including the Statute. The trial court overruled this motion, stating that its prior legal rulings were correct.
. The Missouri decisions on promissory estoppel are in substantially less than perfect harmony with one another, but they do generally recognize promissory estoppel as a basis for removing oral agreements from the operation of the Statute.
Compare Meinhold v. Huang,
. Three of the contested instructions are discussed in this opinion. The fourth contested instruction is the verdict director on fraudulent inducement. The jury chose to rule for Stoetzel on the alternate ground of breach of contract, and therefore never reached the issue of fraud. Thus, any error in the fraud verdict director was harmless.
. Moreover, the verdict form itself presented the jury with mutually exclusive choices in ruling for either party on each issue, and left the jury completely at liberty to rule against Stoetzel on either or both of his claims.