Rowe v. Montgomery Ward & Co.

Montgomery CO, ROWE v MONTGOMERY WARD & INCORPORATED (Calendar 3). Argued 2, No. Docket 84848. October No. Decided July 31, opinion Levin, J., Dissenting August 2, by 1991. filed 1991. Mary brought against Rowe an action in the Kent Circuit Court Co., Incorporated, alleging wrongful Ward & dis- charge employ- and breach contract not terminate her except court, Snow, J., ment for cause. The Roman J. entered judgment jury plaintiff. Thereafter, aon verdict for the verdict, judgment notwithstanding defendant’s motions for trial, Appeals, new or remittitur were denied. The Court of Maher, P.J., J., and L. dissenting), Simmons, F. (Gribbs, unpublished curiam, opinion per finding reversed an that the (Docket 93817). plaintiff an at will No. The plaintiff appeals. opinion Brickley In joined an Riley, Justice Justices opinion by Supreme Griffin, and an Justice Boyle,

Court held: plaintiff may not maintain an action for breach of proofs contract as a result her dismissal. Her are insufficient support defendant, implied her claim of a fact, employment except just not to terminate her for cause. permanent 1. employment Contracts for are for indefinite periods presumed provide employment time and are accompanied by will distinguishing provi- unless features or supporting perma- sions or additional consideration a term of employment. just may nent provided Termination for cause employment ain by express for indefinite duration agreement may employee’s legitimate arise as a result of expectations grounded employer’s policy in an statements. Con- implications arising tractual from oral statements are deter- meaning persons might mined on the basis reasonable language, given Any presented. attach to the the circumstances obligation permanent arising from _contractual References 2d, Am Jur Master and Servant §§ Validity purporting Comment and duration of contract to be Note— permanent employment. 60 ALR3d 226. 437 Mich expression representations on more than an must be based oral relationship, hope statements optimistic and the of a of an supports the asserted clearly permit which a construction must lacking permit case, objective to meaning. was evidence In this promise implied of termina- juror in fact a to find reasonable expressed policy employer in only just The tion for cause. termination, intending clearly regard not general to terms with permanent employment. no There was to form a contract for deduce mutual minds could from which reasonable evidence only agreement employment for cause. terminable of plain- unambiguously gave clearly the and defendant policy will in its of termination at notice of its tiff reasonable prior expec- handbook, any in which modified distributed legiti- any only precluded for cause and tations of termination discharge only plaintiff cause. expectation by for the of mate sign employment-at-will plaintiff to the failed The fact determinative. disclaimers was not parties concurring, have where the Boyle, stated that Justice inferred, duration, employment supplied is at will a term of contrary by establishing may that a inference but be overcome explicit prom- obligations likely. arise from Enforceable is more fact, ises, obligations implied implied in promises in or from parties has more the the communication between law. Where employ possible meaning, own criteria a court will its than one provide interpretation; for a the fails to where contract for gaps contingency, may indefi- fill the to avoid failure for courts niteness. temporal interpreted long may or a either in a "As as” be literally, obligation may to qualitative as an sense. It be read steady employ- employment, provide of or as an offer lifetime meaning, susceptible it cannot be of either ment. Because it is phrase "plain meaning” or addresses when the of the said that any employer for or binds the how termination will occur parties length to set particular the have failed of time. Where term, interpret language and the court must forth a material employment parties’ In the intent. conduct to determine context, as,” "permanent,” long are like "lifetime” "as steady employment. construed as offers of arrangements, promissory employment of In the context light presumption liability analyzed theory proofs employment are it is asserted at will. Where fact, promise a claim of a to create an issue of insufficient requires or implied on the words the court to focus fact there is suffi- to determine whether actions of the defendant promisee mani- could believe cient evidence that a reasonable Montgomery job security. fested an intention to make a commitment of commitment-making Because the defendant’s actions do not predominate, Appeals decision the Court of should affirmed. Affirmed. plaintiff’s Levin, dissenting, Justice stated that the claim for

wrongful. discharge express based on an does not depend Montgomery policy on Ward’s written or on statements inference, offer, terms left rather but on Ward’s subject to the Rules of Personal Conduct that enumerated grounds discharge, employ appliances for sell her to at a compensation long stated for as she able to do work. promise by employer Because the stated a term duration required performance by plaintiff no ether than that sell, sell, discharged only she she could be for a failure or for Conduct, a cause in the stated Rules Personal or a cause employer might implication. seek to establish express Contracts with "as as” durational terms are By permanent its contracts. terms such a is not for employment, lifetime but rather for a term coextensive with the time that the is able do the work. by employer person employ An an offer to a for stated compensation long person as the is able to do the work clearly, specifically, unambiguously defines and the work be done, compensation paid, the to be and the term of con- the tract, find, upon may acceptance, so the trier of fact express employment long contract of was formed for as as the employee provides is able to do the work. Because the contract determining length engagement, method for the the duration of the contract is determinable. The duration is suffi- definite, ciently though long even is uncertain the how employee will be able to the do work. provide employee The the with work at a stated compensation employee for as as the is able to do the work express, implied, overcoming presumption employ- is not ment at will. promisor actually The correct focus is on not what the intended, promisee on but what a reasonable would conclude question by the offer meant. The whether the words used the parties support finding are sufficient to of a contract of employment depend does not on the whether words are in writing expressed orally. requir- or are There is no rule of law ing objective support writing, form of a manual or other or other corroborative for term evidence an oral of a contract of 627 Mich employment. employment A of an term duration contract is law, negated, by employee as a matter of evidence that the inquire negotiate job security, when hired did not or about for by seeking position or evidence that the was a sales singular, job position. rather than a executive Cavanagh, dissenting, Chief Justice stated that the relevant regarding plaintiff’s employment issue contract, the terms of the oral term, including job security the durational or is what agreed to, they terms in fact were not how or whether were negotiated. objective support express To the extent that for relevant, support plaintiff. oral contract is such factors majority’s newly requirement objective sup- invented port express employment for an policy oral contract from misapplies holding or manuals statements and alters reasoning in Michigan, Toussaint v Blue Cross & Blue Shield of (1980), case, companion Ebling. Mich and its While it is given specifically providing true that Toussaint was a manual cause, only just support termination for it was not relied on to providing only the existence of the oral contract termination cause, just only separate for but relevant to his claim that legitimate expec- his dismissal without cause was barred tations created the manual. express statements, parties, by Whether two oral have en- providing just only tered into a contract termination cause question jury. is a of fact for the That determination should not unless, considering light be disturbed the record most verdict, competent favorable there is neither nor suffi- cient evidence from which reasonable minds could reach the

jury’s case, enjoys conclusion. In this the oral contract sufficient support justify jury’s factual verdict. For all relevant and dispositive purposes, legally factually this case indistin- guishable from Toussaint. part took

Justice Mallett no in the decision of this case. — Employment — Master and Servant at Will Termination Implied —Cause Contracts. just may provided Termination for cause in a contract of express agreement for indefinite duration may employee’s legitimate expectations arise as a result of an grounded employer’s policy statements; impli- in an contractual arising cations from oral statements are be determined on meaning persons might basis reasonable attach to language, given presented; any the circumstances contrac- obligation permanent employment arising tual for from oral representations expression must be on based more than an optimistic hope long relationship of a and the statements Riley, J. permit clearly supports must a construction which the asserted meaning. Spruit (by Meana, Bedevia, & P.C. Richard M. Spruit), plaintiff. for the Jr.)

Dykema, (by DeWitt, Gossett Charles C.

the defendant.

Amici Curiae: Granzotto,

Mark Linkner, Monica Farris and Michigan Charles P. Burbach for the Trial Law- yers Association. (by Dwight

Clark, Klein & Beaumont H. Vin- Henry, Silberberg) cent, J. Walker G. Rachelle Michigan Manufacturers Association. (by Miller, Canñeld, Paddock & Stone M. Diane Soubly) Society Employers, for American Motor Vehicle Manufacturers Association of the United States, Inc., Greater Detroit Chamber of Com- Michigan merce, State Chamber of Commerce. J. In Toussaint v Blue Cross & Blue Riley, Michigan, Shield of 579; Mich NW2d (1980), joined this Court the forefront of a nation- experiment varying which, wide in theories, under job security courts extended to nonunionized em- ployees. outpouring ensuing In the vast cases, there have in employers are indeed situations in which

reality agreed managerial to limit discre- theory However, troubling tion. remains be- application cause of those instances which transparent law invitation to the factfinder to decide not was, what the "contract” requires. but what "fairness”

That courts have not been successful unravel- 437 Mich by Opinion Riley, J. ing logic theory produce principles distinguish category the first of cases from necessarily second, experiment. is not a reason to abandon put As Justice it in In re Griffin Bankey Broadcasting Certified Question, v Storer (1989), Co, 438, 457; Mich 443 NW2d 112 "[fjairness suggests discharge-for-cause pol- that a icy announced with flourishes and fanfare at noon- day by pennywhistle should not- be revoked trill midnight.” theory at But unless the has some reality, calling something relation to the a con- tract that is in no sense a contract cannot advance respect Thus, for the law. we seek a resolution which is consistent with contract law relative to employment setting minimizing pos- the sibility relationship. while party employment

of abuse either to the question It is in this context that we address the presented appeal: employer’s in this whether an policy oral statements and written statements cre- only ated an terminable cause.

FACTS AND PROCEEDINGS August plaintiff applied In for a sales position at defendant’s North Kent Mall store in Rapids. Grand Plaintiff was interviewed Mr. Harryman according plaintiff, who, Vern told job Montgomery her that she would have a at Incorporated, long Co., Ward & her sales as as she achieved quota. regard meeting With to his with plaintiff, Harryman Mr. testified: salespeople, When we hired commission that’s type sort of a different of employee than a time- person. objective, card Their main the number one

thing they was that must attain their draw of week, twenty-six gener- hundred and dollars a Riley, ally, generated they as sales and were honest, why, Wards, they job had and that’s the way people. we used to our hire At the time of hiring, signed her plaintiff a sheet entitled "Rules of Personal Conduct.” The sheet stated that adherence to company policies would help an employee to "growth, profit, achieve secu- rity, successful career.” The [and rules further a] provided that in anyone involved the following activities would be immediately dismissed.1 later, years

Several in of January defen- dant issued to all employees a entitled handbook "Welcome to Wards.” The handbook contained disciplinary guidelines which classified infractions to according severity, and types allowed four "1) discipline transgression: Written Warn- 2) 3) ing(s); Suspension Pay; without Probation 4) ; . . . Separation.” and In the back of the hand- book awas form designated the "New Employee Sign-Off Sheet.” The sheet provided part: in

I have read fully and understand the rules governing my employment with Montgomery agree Ward. I employment to with Montgomery Ward under explained. the conditions I understand these changed conditions can be the Company, notice, without any at time. I also understand and 1 . Theft

(cid:127) misappropriation property D[e]struction or (cid:127) accepted Violation of moral standards (cid:127) Manipulating, altering (includ- falsifying Company records

ing application)

(cid:127) Dishonesty any kind 437 Mich Riley, period definite is for no agree my employment time and manner regardless of the may, and wages salary, be terminated my payment of cause, any time, and without any with or without previous notice. plain- employee

Although personnel informed plaintiff applicable her, the sheet tiff that was. sign claimed form. Plaintiff refused applied only employees, not she did to new somebody right you for no fire can "feel it’s on the back reason, sign-off Plaintiff noted at all.” sign. 5-20- sheet, "Read and do wish Mary [s] Rowe.” handbook issued another Defendant August, August of 1982. force its work Sign-off "Employee also contained handbook providing without with or for termination Sheet” sign this sheet. did not Plaintiff received but cause. All tiff, including plain- employees, May 1983. In another handbook received language handbook, further there was the 1983 Virtually providing will. for guidelines disciplinary in all included were same the handbooks. opinion aptly Appeals describes

The Court of surrounding plaintiff’s termination. facts 8, 1984, plaintiff scheduled was On March p.m. p.m. p.m., At 2 she was from work an unauthorized leaving the store from observed exit approxi- returned personnel. She by security not receive Plaintiff did mately four hours later. permission to leave the store although she claimed supervisor, from her to con- attempted that she day but previous him times since tact several that she her co-workers unable. She did tell was say not emergency did on an but had to leave where she was gone. long she would going or how Further, of commis- though the salaries even Rowe v Riley, J. salespersons upon sioned hours are not do. indent t_. worked, plaintiff punch failed out when returned, punch or she left when she as re- quired by company policy. Neither did she make note of her which on four-hour absence the time card turned in at the

she end of the work week. later, plaintiff days Two was called into the for the manager office store to answer allegedly gave expla- unauthorized absence. She nation for a written statement on the matter. that she no leaving provide store and refused to only She said could remember where she incident, those four hours. As a result of this plaintiff was terminated from employ. defendant’s 1984, May plaintiff complaint On filed a against defendant Kent Circuit Court as- serting wrongful discharge, claims for breach of contract, and several other causes of action which purposes are not relevant appeal. A jury this trial on the matter was held on February 18 and 19, 1986. At the plaintiff’s proofs, conclusion of defendant for a moved directed on verdict ground that she anwas at-will employee who was subject any dismissal at time without cause. motion, The court denied that reasoning that an issue of whether tract jury fact existed for the to determine a just-cause employment there was con- plaintiff’s employ whether was terminable at the will of defendant. The trial then continued and eventually concluded in jury verdict of $86,500 plus plaintiff. interest in favor of A judg- ment court. to that effect was thereafter entered 1, 1986, May On defendant filed motions for judgment notwithstanding the verdict (JNOV), trial, By or remittitur. new court order dated 19, 1986, each June denied.[2] those motions was appealed decision, Defendant and the Court 2 Co, Inc, unpublished opinion per v & Rowe (Docket Appeals, of the Court of decided curiam No. November 1988 93817), pp 2-3. 437 627 Mich Opinion by Riley, J. plaintiff finding Appeals an reversed,3 of appealed Court, in this Plaintiff at will. abeyance pending Rowe held we ordered supra, and Question, In re Certified resolution Michigan, 432 Mich Bullock v Automobile Club (1989). May 2, 1990, this 472; 444 On NW2d granted appeal. 434 Mich 910 leave Court (1990).

i posed by is whether defen- The this case issue policy employer’s and written oral statements dant statements directed to plaintiff interpreted may be implied permit promise in fact not to termi- plaintiff’s except find that for cause. We nate allegations support her conten- are insufficient implied limiting promise in fact of a tion right employment. her terminate defendant’s Thus, plaintiff an cannot maintain action of her dismissal. of contract as result breach perma- held that contracts for This Court has period employment are for an indefinite nent time provide presumptively construed to are Lynas employment Farms, v Maxwell at will. (1937). 684, 687; 273 NW 315 When contract

Mich claims representations, proofs of oral rest on provides presumption con- assurance oral term, fall which outside tracts for an indefinite recognized only frauds, will be where statute suggest parties intended to both be circumstances proof presumption may be overcome bound. express for a definite term or a discharge forbidding provision in the absence of by proofs may just cause, which or it overcome implied permit in fact of per signed by Judge from curiam decision Gribbs dissented Judge Judge Simmons. Maher and 637 Opinion Riley, J. i.e., for

security, particular period of time or to just terminate for only cause. Lynas,

In the Court declined to imply dura- plaintiff tional term where the accepted an offer of a "permanent position lifetime with the defen- observed, however, dant.” The Court pre- sumption at will can be overcome if accompanied a contract by "distinguishing provisions,” features or or additional consideration a term supporting permanent employment. Toussaint v Blue Cross & Blue Shield Again, Michigan, supra, 600, p the Court stated that parties began complete with

"[b]ecause dom, freer presume the court will they intended to obligate to a themselves at relationship will.” In general, parties to an employment "re- main provide, free to or provide, for job security.” Valentine v Credit, General American Inc, (1984). 420 258; Mich NW2d Toussaint, In we had the opportunity to expand Lynas on the rule in explore the kinds of "distinguishing or features provisions,” or special circumstances which limit an right employer’s discharge on open-ended contract. This Court there found sufficient factual evidence to permit a jury imply a limitation on the employer’s right to discharge and held that provision of termina- tion for just cause may become part of a contract for indefinite express duration agreement, or "as a result of an employee’s legitimate expecta- grounded tions in an employer’s policy state- ments.” 408 Mich However, the Court was careful to limit effect its holding:

Employers are most assuredly free to enter into employment contracts terminable at will without assigning express agreement only cause. We hold employer’s that an only cause, to terminate statements of company policy procedure 437 Mich Riley, effect, give rights can rise to enforceable Emphasis contract. Mich 610. [408 added.][4] Plaintiff asserts that oral statements made to prehiring her at a tract to terminate interview amounted to a con-

only just cause, while defen- plaintiff dant asserts that the was an However, will. this is not a situation in which interpretation requires express an determination credibility. Smith-Bridgman McIntyre Co, of v & (1942). 629; 301 4 Rather, Mich NW2d 36 this is a parties situation in which the meanings attach different undisputed facts, and the Court jury asked to conclude that was entitled to parties determine from the conduct of the that a promise discharge. limiting employer’s ability existed

Again, we are asked here to decide whether an employer’s policy oral statements and written employment statements created an contract termi- only for nable cause. We do not decide that parties cannot, words and conduct of as a matter jury law, of create an issue submissible to a re- garding implied the existence of a contract in fact. suggest

Moreover, we do not that a contract of employment is too indefinite to be enforced where employee’s per- consideration is the work response formed in to a unilateral offer. Nor do we depart concept presumption from the that of employment at will is a rule construction rather than a substantive limitation. As Justice Ryan acknowledged supra, p Toussaint, in his dissent in 645, "[w]e have no doubt that circumstances could employer’s policies exist in which an written 4 Michigan, In Bullock v Automobile Club of and In re Certified Question, supra, distinguished promise implied we between a in law arising employer’s legitimate expectations from the creation of and an express promise oral contract which can be formed on the basis of an job security promise implied or a in fact. 639 Riley, J.

. . . might incorporated reference, expressly impliedly, into otherwise oral employment and thus become a declaration agreement.” employment true, It is just as how- ever, party bearing the burden of over- coming the presumption employment will must convince the court either should supply an omitted term or that the circumstances are such that jury be permitted should to so conclude.5

In determining whether a reasonable factfinder can a promise find of job implied fact, security we look to all the facts and circumstances evaluate the intent of the parties. As stated Stevens, Miller v 632; Mich NW (1923):

A implied contract is where the intention toas it is not explicit manifested direct or words presumption Bullock counsels that the at will does allegations "exceptional not authorize dismissal of unrebutted But, proposition circumstances.” Bullock does not stand for all jury. such claims are submissible to a Corbin, Contracts, 554, 223-225,observes, pp As 3 § "If the words of agreement, written, undisputed, whether oral or are definite and surrounding circumstances, if there is no as doubt to the relevant interpretation ordinarily of the words is be held to a matter for the court.” supplement §554A, 274, In p the 1991 to Professor Kaufman observes: questions interpretation Corbin’s assertion that all are essentially destroy factual was not intended to that rule. What judge Corbin meant was that even where a tois decide on a particular question interpretation, obliged he still is to treat question is, obliged one as of fact. is That he still hold evidence, hearing, obliged factual examination, he is to take to allow cross- inquire circumstances, surrounding into prior parties, the situations and communications of the and the [Emphasis original.] like. in fairly interpretations Where there are two reasonable of the situa- proper interpretation tion or requires where the of a contract credibility, summary disposition inappropriate. determination of is 437 Mich Riley, gathered by parties, is to be between the implication of the them, but the conduct proper deduction from things language used or done parties, attending pertinent circumstances or other the transaction. assent to a deciding

In whether there was mutual test, objective we use an just-cause provision, expressed parties words of the "looking added.) Goldman v their visible acts.” (Emphasis Co, 528, Ins 535; 354 Mich 93 NW2d 240 Century Products, Inc, v Kent Stark (1958); App 62 Mich (1975). 546; 233 NW2d in statements starting point analyzing oral is to determine implications

for contractual at- meaning persons might reasonable have language, given tached to the circumstances agree In our we with the presented. analysis, v American Carpenter federal district court (ED Co, 933, 936, Mich, Excelsior Supp 650 F n 6 1987): Lynas compels recog- reality

After all as well as begin- party nition of the fact that neither ning employment relationship expects it to an unsatisfactory, hope and both it will have a significant hope duration. This and noncontractual expressed you language in terms of such as "as wish long job.” do the the court Consequently, any orally stated grounded obligation permanent contractual "must be based on more than expression optimistic hope of an of a relation- added.) Id. ship.” (Emphasis lines,

Along the same Justice remarks Griffin’s Bullock, supra are instructive: Surely, a modicum of realism and common sense Opinion by Riley, is needed. An alleged assurance such as that in simply separated the instant case cannot be from working the realities of the It world. should be recognized that "lifetime” contracts and, so, extraordinary being are pressed court will enter into concurring "must be ex- unequivocal

in clear and terms before a employer conclude that an intended to J., weighty obligation.” such a [Griffin, part in dissenting part. in Cita- tions omitted.] sure,

To be because of the difficulty verifying promises, oral the statements must clearly permit supports construction which the asserted mean- ing. The "overreaching principle of contract inter- pretation” is that the court looks to all the rele- transaction, vant surrounding circumstances including writings, statements, all oral and other conduct by which the parties manifested their Farnsworth, Contracts, 7.10, intent. 492. p § Toussaint We thus look to the facts in guide us in evaluating the oral statements implicated the case before plaintiffs, us. Both of the Mr. Toussaint and Mr. Ebling, "negotiated specifically regarding job security with the persons who inter- viewed and hired them.” 408 Mich 612. Prior hired, being Toussaint had several interviews with the cotreasurer company, position sought he was assistant to the treasurer. Toussaint promised claimed he was he would not be termi- " ” nated 'as long Further, as I did my job.’ upon inquiring job about security, he was handed a manual which expressly confirmed that he could " ” Id. be released 'for just cause only.’

Ebling prior also had several being interviews hired. He was interviewed executive vice president and the general manager about a mar- keting position. director expressed He concerns about specifically job security president. to the vice Mich Opinion Riley, J. personal- particular, about a he voiced concerns In Subsequent supervisor. ity to his conflict with president agreed negotiations, ter- not to vice doing job. long Ebling as his as he was minate plaintiff case, for was interviewed In the instant manager Harryman, job Vern sales the appliance Although department. had defendant salespersons, plaintiff advertising to attract been " just Harryman ad, I 'Well, I hadn’t seen the told regard to in there ....’” With kind representations pertinent stumbled plaintiff job security, somebody he needed "[h]e testified that said that sewing and and to sell that this machines vacuum cleaners selling, long job and as I involve as would job Montgomery sold, I Ward.” have a at would (Emphasis added.)6_

6Harryman testified: interview, you Q. present At who other than and was

Mary Rowe? difficult, right, very the of the A. If I and I think remember that’s me, personnel manager interview, we did introduced and most think, I in her office. . . . Harryman plaintiff employment: of her discussed with the terms thing objective, A. . . . number one was that Their main twenty-six they must draw hundred attain their of a and generated week, generally, long they as sales dollars a and were and Wards, honest, why, they job had that’s the way people. we used to hire our Q. Mary you you hired What tell her? did Rowe when get prime purpose, and to A. That sales $2,000 roughly attain that a week or more sales. Harryman discussing employment, In further the conditions of

stated: conditions, again, was to those A. The number one attain quotas to be honest. . . . We had those sorts sales you things, again, only way that could be termi- for but about the your you months nated if failed make draw two would be in a row. . . . Q. you any may be Did tell her other for which she reasons terminated? Riley,

Contrasting surrounding circumstances of Ebling this case with Toussaint and to determine provision if there was mutual assent on permanent employment, or if the statements were expressions "optimistic hope noncontractual of a long relationship,” we find the oral statements agreement rise insufficient to providing though to the level of an only just termination Al- cause. the "as as” statement resem- bears Toussaint, blance to remarks made we find objective lacking permit evidence a reasonable juror promisee to find that a reasonable would interpret Harryman’s statements and as actions only implied of termination for in cause fact. plaintiff engage Toussaint,

Unlike did not in preemployment negotiations regarding security. simply day She "stumbled” into the store one and being had one interview before hired. Nor is there any testimony suggesting plaintiff inquired that job security. Harryman’s Therefore, about state- any ments could not have been addressed to in- quiry regarding job security. objective short, In no subject evidence exists that their minds met on the employment. addition, of continued In we note plaintiffs applying Toussaint, in that were for singular, job positions. positions executive That the unique supports finding were the terms specifically negotiated. plaintiff Here, were was many departmental salespersons. one The fact identical plaintiff applied that positions for one of several against

militates the likelihood that negotiable suggests terms were and company policy govern. likely was more response

Furthermore, Toussaint, in to in- or, know, murder, you obviously, something A. Theft like that; any company properties, theft of or so on. 437 Mich Riley, given job

quiries security, was Toussaint about only providing specifically termination manual disciplinary containing just extensive cause, and sup- objective manual offered classifications. The representations port made to for the oral objective support plaintiff. case, the In the instant signed plaintiff lacking. being Upon hired, was The sheet did Conduct” sheet. "Rules of Personal procedures disciplinary and, not elaborate contain importantly, "release for did not contain the more signed only” language. just Moreover, the cause interpretation plaintiff’s conflicts with sheet joba as as she would have oral remarks that any quota, and undercuts achieved her sales she from interview. that a contract arose belief theft, destruction The rules listed conduct such property, records, moral falsification impropriety in immediate dis- would result which agreement by those Plaintiff’s to abide missal. any subjective suggests belief she main-

rules only for failure that she could be dismissed tained quota obtain her was reasonable. Lastly, Harryman’s testimony we find that agreement support termina- insufficient tion holding suggested by just only our cause. As supra, supported by Lynas, this of in Toussaint and treatment the facts Court’s Ebling, employee seeks to from who establish promise implied in fact must meet conduct a employee higher relies on than an who standard language. Logic compels express the conclusion negotiate parties expressly with offers that where and counteroffers, it more antici- reasonable Conversely, pate less there is mutual assent. parties or that desired intended

chance result prayed where, here, conduct and oral as job of are claimed to create statements security implied v in See DiBonaventura fact. v Rowe Riley, J. Corp, Consolidated Rail 420; Pa Super A2d (1988). Thus, we conclude oral statements of must job security unequivocal be clear and overcome the presumption employment at will. Ryan As separate opinion stated Justice in his Toussaint, supra at 632-633: in exception general

The second to the rule consists agree- of those ment employment instances which the "distinguishing includes some feature[s] supra, provision^],” Lynas, put as the Court it in preclude so as to a construction of at employment A example will. type classic of this modification hiring an indefinite is the modern bar- collective gaining agreement in which there is in- often provision cluded a that an shall dis- charged only for cause. Provisions this nature clearly to limit forcefully indicate a mutual intention employer’s terminating discretion relationship. Harryman’s words were in general couched terms, more akin to stating policy as opposed offering an express vague contract. His words were discussing when (e.g., "generally, termination as they generated sales and were . honest . . they Wards”; had a job "about only way that you could be terminated be if would .”). you failed to make . . . your (Emphasis draw added.) We find that these do clearly words indicate an intent to form a contract for perma- Rather, nent employment. the context of Harry- suggests man’s comments they merely were emphasize intended to priority number one plaintiff’s job —sales. plaintiff’s

We also reject contention "Rules Personal Conduct” created a contract sheet, terminate for cause. In only signing the 437 Mich Opinion Riley, J. agreed plaintiff if she that she would be dismissed Nothing prohibited engaged in the in the conduct. suggested was the enumerated conduct that rules the only dismissal, the rules were basis for policy. Thus, consistent with a termination-at-will no from which a reasonable we find evidence security. promisee job could find a Consequently, from which find no evidence we mutual was minds could find there reasonable only a term terminable on assent for cause.

ii ‘Having employer’s oral state- concluded that the did of Personal Conduct” ments and not form contracts for "Rules permanent employment, we disciplinary guide- decide must next whether promulgated gave to an defendant rise lines employment providing only termination

contract concurrently just issued cause defendant where containing employment-at-will sign-off sheets an policy. plaintiff an find cannot maintain We on action for breach of contract the basis guidelines disciplinary handbook because the last plaintiff clearly forth an em- received set which ployment-at-will policy. employer’s Toussaint, In held this Court policy announcing policy a written statements may only termination for cause create "legitimate give rights if the statements rise to just-cause employment expectations” in the em- jury ployee. question case, In that the Court determined policy presented regarding whether expectations. The Court manual created such stated: published Blue

Since Cross distributed Rowe v Riley, J. 260-page establishing procedures manual elaborate promising provide for of the administration "[t]o fair, consistent and reasonable corrective disci- leaving "to pline” employees treat Blue Cross in a fair and to and consistent manner release employees just only,” employees cause its could rely expressions justifiably on those and conduct accordingly. Emphasis themselves Mich [408 added.]

Referring just-cause provision, to the Court the stated: were, thus, alone, separate

There on this basis special circumstances sufficient overcome the presumptive construction that the contract was terminable at will. Mich [408 614.] supra, In In Question, re Certified the Sixth Appeals following Circuit of Court the certified question to this Court: provision "Once a an that shall

discharged except for cause becomes en- legally [supra], forceable under Toussaint a result an as employee’s legitimate expectations grounded in the statements, employer’s policy written may the employer change thereafter unilaterally those policy written by adopting generally statements applicable policy and alter the rela- tionship existing employees at to one the will the employer express the absence of an notifica- tion to employer employees from the the outset that right reserves to make such change?” Mich [432 441.] responding question, In to the certified Court this company’s policy held that a statements, written legitimate expectations which created em- ployee discharge only, for cause could be unilat- Mich Riley, J. employer. erally The Court stated modified express reservation may, without employer [a]n of so, change its writ- right unilaterally to do discharge to one of one for cause policy ten from will, provided employer termination gives notice of employees affected reasonable policy change. Mich [432 441.] required uni- the notice be The Court also policy given formly change. employees affected in the case Much of the same documentation in Dell v before us was involved 1987). (CA 6, In Co, Inc, & 811 F2d Ward plaintiff Dell, after the of contract sued breach plaintiff The the he was terminated defendant.

alleged only for cause arose terminable contract Discipline Progressive Refer- out the defendant’s designed give pdrg ence Guide supervisors (pdrg). punishing procedure to follow when employees. However, it was within the pdrg, procedure not form an "[t]his does stated that deleted.) (Emphasis employment Also, contract.” Policy Manual Human Resources defendant’s discharge provision could be with contained a discipline proce- cause, or without and also that employment contracts. dures did not constitute Furthermore, plaintiff signed in 1982 a sheet be terminated could which stated Writing court, for the cause. with without Judge Ryan no that there was determined only making employment for cause: terminable imagine more defen- It is difficult what crystal make it clear might dant Dell, have done to that, employees, Montgomery Ward and all arrangement made di- other were unless some Ward Opinion by Riley, rectly with the President and Chief Executive Officer or Executive President Vice of Human Resources, Montgomery employees are em- ployees may "at who discharged will” with or without cause. . . unequivocal . The language "sign off case,

sheet” in this ees which stated that the employ- discharged

could be "with or without cause previous notice,” and any without means what says binding upon parties. and Similarly, plain simple statement pdrg, in the process procedures the due established there did "not contract,” form an employment likewise means says. what it F2d [811 974.] plaintiff case, In the instant received handbooks containing disciplinary guidelines.7 She claims the guidelines question jury at least create a for the regarding providing the existence of a contract termination for cause. "sign-off

However, similar to Dell, sheet” in the instant case the 1983 handbook8 contained unequivocal language expressing defendant’s ter- policy. heading Under a entitled mination-at-will "Employment Relationship,” paragraph in. provided: 1983 handbook Because requirements business fluctuate often in our industry, your employment conditions subject change status any are time. There- fore, although you may have been hired for a specific position, hours, specified duties, with pay, etc., reduced, all of or, these can be increased in fact, terminated without advance and notice any reason. Consequently, you right also have the to terminate your employment in the same man- 7 disciplinary guidelines essentially The are the same in all the guidelines printed 1983, manuals. May, in the handbook are appendix. set out in the attached 8 record, According to the this was the last in a series of handbooks plaintiff. distributed to 627 437 Mich

650 Riley, ner, time, lack reason. This of any any at applies employment contract also guarantee or an benefits, working conditions privileges to other of Ward. at expectations plaintiff’s the Whatever with the 1983 plaintiff, unambiguously nature prior regard to to the issuance termination to manual, the last handbook distributed clearly that the 1983 manual we find company’s plaintiff of the notified policy. persuaded there- We are termination-at-will manual would have succeeded fore that modifying any prior expectations termination only for cause.9 argument reject plaintiff’s

Furthermore, that we policy. notice In she not have reasonable did May, 1983, manual, two to the earlier addition sign-off asserted a termi- sheets distributed policy.10 asked several nation-at-will times Plaintiff was personnel department sign to refused. We sign-off January, 1982, sheet, but she August, 1982, ad- also note sheet was "employees,” employees.” not dressed to "new discharged plaintiff Also, until March was plaintiff 1984. The last handbook distributed her least nine months before was sent out at discharge. law, Therefore, find as a matter of we pro- clearly the existence of three handbooks viding will, of which for termination at the last prior plaintiff nine least months sent termination, notice of de- constituted reasonable policy. fendant’s plaintiff

Moreover, find the did not we fact plaintiff clearly find the 1983 manual informed Because we question policy, we do not reach the defendant’s termination-at-will guidelines actually expectations of termination whether created only for cause. employees, signifying All were distributed to all three handbooks apply employ were to all defendant’s intention that contents ees. 651 Opinion Riley, J. sign at will disclaimers is not plaintiff prior express determinative. If had a con- discharged only cause, tract to her assent required modify agreement. would be How- agreement. prior ever, there was no such Conse- agree quently, Appeals we with the Court of state- ment that: disagreement Her provisions with the contained negate

therein cannot their effect. She was aware and, provisions therefore, any ex- contrary pectations may she have harbored cannot be [Unpublished opinion deemed reasonable. per cu- riam, (Docket decided November 1988 No. 93817), pp 5-6.] light findings, upon In of our we would hold that receiving May, plaintiff 1983, manual, could no longer any legitimate expectations harbor of a discharge-for-cause policy. expressly Defendant clearly right discharge employ- reserved the ees at will.

hi11 lengthy clearly Justice Levin’s dissent evidences an insistence that this Court broaden reach of majority opinion his in Toussaint which we elect not to do. respond briefly—noting: Thus, we — opinion, dissenting

—In his Justice Levin relies stating: § Contracts, on 32 of the Restatement of Court, Today, this without 32 of reference § the first Restatement of [presently Contracts § Contracts, 2d], ignoring of the Restatement terms, enforcing cases as” contracts with ”as responds proposed This section to the of a latest draft dissent circulated, yet filed, by but Justice Levin. [July- 437 Mich Riley, of the law own restatement promulgates its maintain action holding may not that Rowe long she for as as promise employ a to her enforce did reasons, term or a selling—because, among other "the work”— include a durational did not durational term. sufficiently definite p [Slip op, 22.] per- as acknowledge the Restatement While we contracts, this subject on authority suasive court, bound not, any nor is other Court is rules set out in Restatement. any of the follow urges, Moreover, assuming, Justice even as Levin Restate- with the ruling our is inconsistent Institute ment, of the American Law writings Court, is the rulings of this nor not control do to be necessarily written law of this state the Restatement. consistent with ii(f) opinion,

—In of his Justice Levin section long as’ regard 'as generally remarks "[c]ourts considerably expressions as more than contracts but, rather, wish,’ as and noncontractual 'hope a Post, p term.” expressing a durational 31, Servant, p However, CJS, Master and § 414, states: general As employment contracts. a Permanent in some form rule contracts which employment permanent as purport where provide employment, employee is to have agreement for the or permanent employment permanent position or employment for life, employee is hired or the vacancy,” employ- "permanent or where the fill long operat- master is to for as as the

ment position, desires the ing, long employee as satisfactorily performs long or as as the duties, party terminable at will either his are supported by any consideration they are not where per- obligation of service to be other than the formed wages salary to be on one hand and [Emphasis paid on the other. added.] Riley, J. previously Furthermore, this Court has found an supply "as as” statement insufficient Lynas, supra, p "plaintiff 687, durational term. In permanent position was offered a long or one for life so satisfactory as his services were to defen- dant.” The Court held that a durational term was lacking relationship and that the was for an indefi- nite term and terminable will. Lynas analogized Court that case to Lord v (1889).

Goldberg, 597-598; Cal 22 P 1126 In Lord, it was agreed by plaintiff and between and defendants consideration entering of his into their solicitor, using as such all his efforts to persons secure certain-named as custom- ers, business, give would and to their "they extend permanent

him employment long so he as should business, his use best efforts to extend their paying week, him at twenty per the rate of dollars and salary increase his the business increased” [Emphasis .... added.] agreement The court determined that the was for an indefinite term and terminable at the will of party. either illustrating holding, Lynas

In its the Court also Rape Co, cited v Mobile & 45; ORR 136 Miss (1924), plaintiff prom- 100 So 585 where the was permanent steady employment ised to have and " long willing perform 'as as he was able and ” properly.’ such services The court found that agreement there was no durational term and the was terminable at will. Ly-

In another case cited as illustrative Dry Repair Court, nas Arentz v Co, Morse Dock & (1928), plaintiff 439, 441; 249 NY 164 NE 342 alleged position, orally promised permanent he that employment

aor lifetime In contract. Mich Opinion by Riley, will, finding an for termination agreement York stated that Appeals Court of New "[a]n posi- in employ plaintiff such agreement expect we would tion for life is so unusual writing.” in The later find it contained some court asked: in these justified saying

Are we that under all plaintiff proved em- has a life circumstances ployment, what amounts to about the same long as thing, employment which is to last as business, corporation plaintiff’s does and least satisfactory? Such contracts at services are definite, or no specific should room with little be if misunderstanding, they even are [Id., p writing. required in to be 443.] case us Lynas teaches history behind do not necessarily "as as” statements terms, provide providing durational and contracts permanent employment specific should to duration. regard definite with cases

—Many cited Justice Levin ii(f) from opinion distinguishable his are section distinguished ones are not this case. Of the here, respect to this controlling none are with Court.

—The Justice Levin’s following cases cited distinguishable from this case because opinion are City are not cases: they Co, v 363; Superior Douglas Telephone Co Wis Monroe, 228 Mich v (1909); Caplis 122 NW 1023 v (1924); Long Drug Beach Co 586; 200 123 NW Co, (1939); 158; 88 Drug United 13 Cal 2d P2d 698 Co, Inc, Stage Fuchs v United Motor St 135 Ohio Inc, Phelps Shawprint, v (1939); 509; 21 669 NE2d v (1952); Big Spring 352; 328 Mass 103 NE2d 687 Control, 1966); (Tex, Texas Bd of 404 810 SW2d Riley, J. Exterminating Co, Inc, State v Orkin 528 So 2d (La 1988). App, following provisions cases, —In the the contract outlining clearly specifi- durational terms are cally parties’ writing set in out so that the intent easily course, is more in discernible. Of the instant attempt parties’ case, we must ascertain the vague Long intent from oral Fuchs; statements: Drug Big Spring, supra; Co; Beach McMullan v (1895); Co, 156; Dickinson Kirkley 60 Minn 62 NW 120 Co, v FH 246; Roberts 268 Mass 167 NE (1929). Diggs Pepsi-Cola Metropolitan Bottling In IV v (CA 1988), Inc, Co, 861 F2d 914 the court found promise an enforceable oral as the plaintiff’s performance satisfactory, was he would job. Diggs, However, have in response plaintiff’s inquiries in made to the direct job security. plaintiff case, about In the instant inquiries job security. made no parties about Whether the negotiate specifically to a contract dis- subject cuss is relevant to a determination re- garding Furthermore, mutual assent. in the court Diggs mischaracterizes the district court’s decision Carpenter, supra. Diggs court in The states Carpenter, Diggs sign 'employ- "[u]nlike did not However, ment-at-will’ clause.” 861 F2d 918.

plaintiff Carpenter sign employ- did also application containing ment the clause.12 Co, In 210; Ehrenworth v Stuhmer & 229 NY (1920), plaintiff agreed 128 NE 108 to exclu- sively sell defendant, black bread made agreed plaintiff the defendant furnish with requirements. agreement all his black bread before, Carpenter durational contract.” 650 F After [the discussing court plaintiff] stated, has language "secondly Supp not established in the and more employment application, any importantly, basis for a as noted specific 627 437 Mich Riley, J. long parties in remained as as both was to last plaintiff exclusive was an Since the business.

agent, selling only bread, the black defendant’s finding more conducive circumstances were long Also, that as term. statement durational as both standard, provides parties in a definite are business vague, long "as as she sold” is

whereas pin a term on which isolated statement duration. supra, Exterminating p Co, Inc,

In v Orkin State pest "for the lifetime of control services were paid so customer the treated structure a on the specified fee.” The court focused annual renewal

phrase in structure” the "lifetime of the finding ascertainable. How- the term definite and employment ever, state, contracts this lifetime will.13 and are indefinite terminable opinion, his —In Justice Levin section vn plaintiff incorrectly did assert determines 1983 procedures manual, found finding just provided therein, for a cause basis employment. disciplinary guidelines

Virtually are same brief of the manuals. Plaintiff’s sets found in each out evidentiary major to as what it refers "four (2). (1) handbook, the 1982 features” the 1983 the case: ” (4) (3) "sign-off sheet, handbook, and testimony Harryman 1976 Rules of of Mr. Conduct. plaintiff’s

Further, later states: brief It contention that the hand- is Plaintiff’s 13The noted: court health club Both lifetime contracts legisla-

memberships are definite contracts not enforced as legal for Orkin’s is no basis tive There omitted.] act. [Citation indefinite and will not be lifetime contracts are assertion specifically So 2d enforced in Louisiana. [528 201.] Opinion by Riley, policy book is a reiteration of the "for cause” first Harryman’s established Mr. statement and the personal rules of conduct. This means that separate there are three bases for Ms. Rowe’s objective expectancy that she not be would termi- cause, i.e., except statements, (Exhibit nated for the oral 2), the Personal Rules of Conduct (Exhibit 10). and the 1982 handbook [Emphasis added.] argued Appeals

Plaintiff also in the Court of that disciplinary the classifications found manu- supported agreement just-cause employ- als for Appeals ment. Court stated: Plaintiff jury properly asserts that al- lowed to type decide what of contract existed in the instant case because two factors raised an issue for the trier of fact. Those two factors were: (1) allegedly plaintiff made to her at job interview that she job would have a as (2) quota, she met her sales defendant’s disci- plinary procedure. classification and toAs factor, plaintiff that, latter claimed because encompassed classification misconduct that would good discharge, constitute cause for such created a expectation employees reasonable they not discharged except good would for cause. [Slip op, p 5.] Along argues lines, the same Justice Levin incorrectly arguing, we framed the issue. In so he express states that "Rowe’s contract claim for wrongful discharge depend does not all on policy Ward’s 'written statements’ or flying inference,”14 on terms left to thus in the face passages plaintiff set out above that did guidelines assert that the found within manu- just-cause als formed the basis for a contract.

14Post, p 679. 437 Mich Riley,

CONCLUSION summary, the oral relied In we find statements plaintiff rise level of an on to the insufficient just agreement providing only for termination support Moreover, the circumstances do cause. a permanent employment.

finding provision on of mutual assent Con- find the "Rules of Personal We also only terminable duct” did not create a contract cause. plaintiff

Finally, action for maintain an cannot disciplinary of contract on the basis breach plain- guidelines because the last handbook which employment-at- clearly tiff received set forth an policy. Thus, decision of will would affirm the we Appeals. the Court of

Brickley JJ., Griffin, with concurred Riley, J.

APPENDIX Disciplinary Action Guidelines guidelines

Disciplinary that have been so established company expects know you exactly what guidelines you. These detail actions that will of cause pany. disciplinary to be the com- action taken Riley, discipline There are four types may be used supervisors to correct improper conduct/perfor- 1) 2) warning(s); mance: written suspension with- 3) 4) pay; probation; out separation. categorized

Violations are as Class or c. a, b, type of disciplinary action depend taken will on the violation committed. The violations are: Class

Counter Productive Behavior An act theft, fraud, or acts which rape result (or offenses) arson, extortion, other sex embezzle- ment, burglary, larceny, using or violence deadly weapons; willful violation of company conflict of policies; interest unauthorized disclosure of confi- company information; dential any personal other conduct which substantially your limits effective- ness as a Montgomery Ward employee by reason of its on reputa- detrimental effect or business tion of company.

Insubordination

Refusal to follow direct instructions from a su- pervisor manager. or

Use Weapons or Possession of Deadly possession

Unauthorized use explosives, weapons, firearms or company premises other on performing or while company business.

Irresponsible Actions

Behavior which creates a unjust- substantial and ifiable risk or person; harm to another serious damage company damage property; prop- to the erty person or others company of while on time or premises. Includes, but is not limited to: harass- ment of customers; other employees or reckless Mich 627 Riley, J. assault, or physical company equipment; use of em- any on fellow attempted physical assault customer, or visitor. ployee, vendor Drugs/Alcohol Trafficking of or Use drugs Sale, or possession or use of controlled drug or premises; alcohol company on alcohol substantially your interferes with dependency that (If mit- assigned responsibilities. perform ability to circumstances, legal fide dis- igating such as bona re- employee may be ability present, are recovery.) of satisfactory with evidence instated Fraudulent/Deceptive Practices credit, services or company property,

Use relationship in manner other than Federal, Company Policy, State or prescribed by Includes, not limited to: willful Local Laws. but is any company docu- manipulation or falsification discounts; ments); mis- employee/family misuse company, vendor or customer appropriation credit; theft; fraud; price property, services or cashing privi- negotiation; gross misuse of check or page information. leges. Refer to 17 for discount Class b Acts

Hazardous applicable safety rules or actions Violation Includes, practices. in fact unsafe work which are personal to: failure to wear but is not limited goggles/glasses, equipment, (safety protective shoes, lanyards); report safety safety belts and toe applicable occupational injuries conform to all regulations. o.s.h.a. Harassment

Employee sex, race, age, national based on Harassment handicap origin, religion, physical or mental affect- Riley, Opinion Includes, ing aspect any employment. but is not degrading limited to: or offensive remarks or com- ments, innuendoes, implication which, or to a hostile, person intimidating reasonable create a or work offensive environment.

Negligent Conduct

Failure to use perfor- reasonable care in the duties, mance of work or work related which re- sults in injury, property damage or financial loss company others, or which limits or inter- profit production. Includes, feres with but is horseplay; limited to: excessive customer com- plaints; working clock; gambling. off the time Unauthorized Solicitation soliciting

Distribution or literature member- ship unions, fraternal, religious, politi- social or organizations, cal time; while company on toor those who seek or have relationship a business company, except with the such activities that are officially and expressly authorized the company.

Aiding Abetting Gross Violations

Association with employees fellow in an un- or way. licensed unlawful aiding Includes or abet- ting any conduct classified as Class violations.

Class c

Reporting to inWork Unfit Condition

Reporting to work when so physically, mentally, emotionally impaired toas unable satis- perform factorily assigned responsibilities. Excessive Absenteeism/Tardiness work,

Excessive absences from reporting, late breaks, leaving early or other violations of company work schedules. 437 Mich Boyle, J. Smoking

Unauthorized Includes, Smoking non-designated but areas. floor; is not limited to: sales auto service center stock; or warehouse areas. Regulations

Violation Uniform or Dress appropriate Failure follow a standard of dress Includes, for the business situation involved. not limited to: technician, or but shoes; safety product toe service uniforms; automotive or truck driver regulations management. by local as established Lounging/Loafing during

Behavior scheduled work hours that dem- significant assigned onstrates duties or lack of attention Includes, responsibilities. lim- but is not sleeping; reading personal pleasure; ited to: for personal telephone extensive calls. Company Policy

Violation of applicable policies procedures Violation of specifically not otherwise referred to the disci- plinary guidelines. guidelines NOTE: The of are not above all inclusive you disciplined. violations for which can be [Emphasis added.] (concurring). agree J. with the affir- Boyle, I Appeals mance decision of the Court of parts opinion.1 i, mand of Justice Riley’s ii proofs support Plaintiff’s inference of a cause. are insufficient

promise only just of termination

i part opinion I read i of the to stand for the opinion responds proposed This to the latest draft of a dissent circulated Justice Levin. Boyle,

proposition plaintiff’s proofs are insufficient permit juror a reasonable to find that employer made a commitment that a reasonable promisee would believe amounted to a only just termination cause.2 employment-at-will rule reflected a policy

judgment promises informal of informal em- ployment security seriously should not be taken law, unless the offers an indication parties that both meant for their deal to be en- [Perritt, Employee forced. tice Dismissal Law & Prac- (2d ed), 4.2, p § 176.] Epstein explains Professor rules of con- adopted struction are to reflect "the dominant practice given in a class of cases and because that practice regarded making good is itself sense for governs.” Epstein, the defense of the transactions standard In will, contract at 51 U Chi L R (1984). It has not been demonstrated that the practice employment-at-will arrange- dominant promise employment ments in the oral context has sufficiently shifted to warrant determination that practice longer reject the no makes sense and to presumes employ- the rule of construction that ment at will. Drawing Ebling,3 on the facts Toussaint opinion

the lead sets forth a list4 of some of the Riley’s opinion 2 I do rejecting not read Justice the claim if that parties’ appears, the intention that is intention that should be Contracts, 2d, 201, 83-86; Farnsworth, pp enforced. 2 Restatement § Contracts, 7.15-7.16, pp 517-526; Darlington Electric, §§ v General 350 (1986). Super 183; Pa 504 A2d 306 3 Michigan, 579; Toussaint v Blue & Cross Blue Shield of 408 Mich (1980). 292 NW2d 880 4Among objective the circumstances identified as indications clarity, specificity, ambiguity intent statements; the are and lack of of oral specific negotiations job security; whether there were position; whether, policy the nature if statements are on, they support promise relied of or undercut a reasonable belief that job security being was extended. 664 437 627 Mich Boyle, that are of assistance in determin

circumstances ing the threshold issue of intent. Even where there express proof employer that an made an state job security, long sold,” as I ment of for "as promise it does not follow that a "forever/’ employment continue until cause existed for termi Lynas Farms, nation must be inferred. v Maxwell (1937) ("perma 684, 687; 315 279 Mich 273 NW position long for life nent or one so as his services defendant”); satisfactory were Sullivan v De troit, AA R, 661, 676; Y & 98 Mich NW 756 (1904) (circumstances support insufficient to a con contemplating plaintiff tract employed would be legal

"as as he was able to do the defendant”). otherwise, work of the Stated where parties supplied term, have durational employment at will is the inferred term that supplies by court construction. It will be overcome establishing circumstances the non presumption likely existence of the is more than 5not. description analysis The court’s of the method of Darlington Super Electric, v General Pa parties’ apparent Where intention is not and the facts and plaintiff circumstances advanced more the of are sufficient to show it is likely promisee than not that a would believe that reasonable employer making promise a commitment that amounted to a conclude, matter, job security, the court will as a threshold that the presumption has been overcome. Where facts and circumstances are differ, jury contradicted and reasonable minds can the facts and circumstances that determine will obtained, actually whether there was was amounting promise, promise a commitment to a and whether the produced breached. facts Where the and circumstances would not juror finding job security, warrant a reasonable Mendelson, 95, question put jury, cannot be to the v 302 Mich Leslie (1942). 104; experienced practitioners 4 NW2d 481 To law, simplistic. best, worst, may appear unnecessary this formulation —at perhaps unduly cryptic language It is here to balance the Michigan, 483; in Bullock v Automobile Club of 432 Mich (of (1989), NW2d 114 manuals) the determination the effect of these discovery perhaps (Empha- "must await further and trial.” added.) sis Rowe v Opinion by Boyle,

183, 200; (1986), case, 504 A2d 306 an employment is instructive: When "sufficient additional consideration” is

present, courts intended that parties infer that the the contract will not be terminable at-will. This may nothing legal inference more than a fiction possible case, it given because is in a the parties truly never contemplated how the employment would though last even additional present. so, is consideration Even the pre- at-will sumption if hand, would be overcome. On the other parties agreed specifically employ- at-will, though ment would be even additional present, expect consideration were court we would to construe the according contract to the parties’ stated intention and hold to be at-will. Thus, start presumption we with the usual at-will which, say, let us has not been overcome evi- dence of a contract for a term or for a reasonable Then, length of time. if sufficient additional consid- present, eration is presumes law this to be sufficient However, to rebut presumption. at-will . . . presumption created the addi- tional consideration rule could itself be rebutted parties evidence that specifically contracted [Emphasis original.] at-will. in the Ebling illustrate, As Toussaint reliance special consideration as a of bargaining result an objective indication job existence security probable is more than not. Otherwise stated, it is circumstantial evidence that the omit- ted durational term that the court would other- will) wise infer (employment does not reflect Thus, parties’ intent. while the oral prong Ebling Toussaint recognizes that validation provide devices6 circumstantial evidence rebutting Cavanagh incorrectly Chief Justice observes that the oral con "rely manual,” policy post, p tract claim in Toussaint did not on the is, anything, stronger 721. "Toussaint’s if case because he handed 437 Mich Opiniqn Boyle, J. presumption employment will, neither creating as a rule of sub- case is to be construed must be which must be law that words of commitment stantive promise interpreted as words of

submitted to the factfinder. states,

As Professor Perritt acceptance or Part of the idea of offer and meeting require theory minds in contract is to promise supported by a be some sort that it. A device before the law enforces of validation competing approach to enforcement has support essentially received little in the cases: to forget about validation devices and enforce em- promises security merely ployer upon proof [Perritt, employer made them. 4.12, supra, pp Emphasis 197-198. § omitted.] say is not to that consideration in addition This rendering enforceability to in services is essential to say

employment cases; it is to the more ambiguous appropri- circumstances, the more objective it to ate is look indications assent. observes,

Professor Farnsworth likewise when determining whether circumstances constitute an offer, proposal very suggests that a detailed fact [t]he offer, many

that suggests ties leave intended [Farnsworth, it is an while omission of terms par- is not. "The more terms the open, likely they the less it is that have binding agreement.” to conclude Contracts, 3.10, p quoting the § comment to UCC 2-204.] personnel policies a manual of Blue Cross assurance of which reinforced the oral Toussaint, job security,” p testimony 597. "Toussaint’s question jury was sufficient to create a was a mutual discharge of fact for the whether there understanding company policy it was to job,’ 'as did and that this [he] [his] (which policy, expressed just only’), in documents said 'for cause hired, assertedly apply handed to Toussaint when he was would Id., employees.” p him as to other Blue Cross 613. Boyle, price

Courts will infer a reasonable or other problem term to avoid with indefiniteness. How goes ever, when "the indefiniteness to the central question quantity done,[7] work satisfactory there is no external standard of rea it,” sonableness reluctant answer much courts are more Farnsworth, infer a durational term. supra, p considering 3.28, § Thus, when ofier, whether statement constitutes an in the contracts, context of commercial courts construe a nonpromissory expose statement as if it would being perform maker to the risk of bound to beyond perform. his to means requirement

Even under the liberalized of defi- niteness under Uniform Commercial Code permits which a contract to many be found with open emphasizes terms require two fundamental (1) contract, ments: a manifest intention to make a (2) and appropriate a reasonably giving certain basis for an remedy. ... If an has be gun perform with acquiescence of the em ployer, question there can parties be no However, intended to make a contract. absent intention, other manifestations how shall a court read a definite term into such a contract provide possible ment appropriate remedy .. . ? is not [I]t upon to decide employ a suitable term of objective where there is no manifestation of parties’ [Darling intention guide court. Electric, ton v supra, General p 197.] employment arrangements,

In most the dura- agreement tional term is central to the because it inseparable question is from the threshold reasonably whether a commitment could be under- promise. stood be a agree with Justice conclusion that Riley’s

I goods, example, In the area of sales of will courts infer almost every except quantity kind of term term. 437 Mich Boyle, pre- to overcome the is an insufficient basis there sumption supply durational term. an omitted performance context, is In this sufficient to the standard ques- guide on the central the Court parties’ regarding the duration tion of the intent relationship.

ii obligations It is letter law that enforceable black supra, "explicit” promises, may Perritt, arise from implied p promises 4.1, fact, in § from or or (such obligations implied policy law as legitimate-expectations prong of v Blue Toussaint Shield). obligation An Cross & Blue enforceable prong can arise under the contract from an of Toussaint explicit promise or can be inferred from or other conduct.8 "Sometimes a contract words 'express,’ is as results from words described while one that results from conduct described 'implied fact,’ as such has no but the distinction supra, p legal consequences.” Farnsworth, 3.10, § parties When the communication between has possible meaning formula- more than one and that 8 assertion, Contrary to Justice the Rules of Personal Con Levin’s statements) (or policy may inquiry relevant to an into duct Rowe’s claims under the contract other be prong The of Toussaint facts inquired regarding job security, Toussaint are illustrative. Toussaint Id., 598, response. pp and a manual was handed to him in manual, 617. The contract, part which of his in Toussaint asserted became Id., 597, provision limiting just p explicit dismissal to cause. cluded ah n 5. In Conduct which failed to limit contrast, copy Rowe a of the Rules of Personal received dismissal, grounds enumerated for immediate but discharge grounds any and to those omitted discussion Toussaint, regarding just cause. Unlike the manual relied on in support fail to contention that her Rules Personal Conduct Rowe’s agreement employer anything with her other than the at-will ambiguous. term inferred where a durational term is omitted or Toussaint, Like the manual in the Rules of Personal Conduct also may analyzed prong policy under the of Toussaint to determine gives obligation legitimate expectations, implied it an whether in law. See rise to Riley, J., n, ante, part pp 646-651. 669 Boyle, J. employs court,

tion is submitted to a the court its interpretation. Likewise, criteria for own when a incomplete provide contract is because fails contingency, for a courts both common law and may supply under the Restatement constructive "gap conditions or fillers” to avoid failure for generally, See, Scott, indefiniteness. Goetz & expanded analysis limits of choice: An inter- of the express implied action between (1985). terms, 73 LCal R 261

Thus, even contracts where courts have been much more reluctant to cure duration, indefiniteness in if the amount work definite, to be done is a term that it must be done supplied within enforced, time reasonable will be Sharkey Co, Browne & Co v 480; Or (1911), P115 as would a reference to a mea- " period surable Engler as, time such 'as as’ John Cavanagh Governor, is or Michael F. post, p clearly Justice,” Levin, J., 700,

Chief which refers to an external standard of durational mea- sure. process by

Farnsworth describes the which analyzes dispute court an over omitted term observing in order to determine what parties necessary said, have not it is first to deter- they Disputes mine Farnsworth, what have said. contracts, over omission in L Colum R (1968). step deciding

The first require- whether ment of definiteness has interpret been met is to language agreement. [Farnsworth, Con- tracts, 3.28, p § 195.] process supplying Thus, the omitted terms be- gins incipient dispute expression, an with over finding an omitted term "is itself exercise in 670 437 Mich 627 Opinion by Boyle,

interpretation of the contract to decide whether or parties provided not the have for the case.” Farns- worth, 68 Colum L R 873-874. parties case,

In this to determine what the have language long said, we examine the "as as she sold,” which the dissent finds is a "definite term of added.) employment.” (Post, p Emphasis interpretation language dissent eschews in question, language and characterizes as an only absolute that would terminate on the happening of a condition event, i.e., failure to quota.9 sell the apparent, long It is however, that the "as as” language interpreted ways: can be two either in a temporal qualitative sense or in a sense,10 is, your employment long you will last "as as” your employment long your sell or sales are will last "as as”

satisfactory. The term is less definite "permanent than employment,” "lifetime” or temporal only, which has a reference but in refer- ring may draw, to a sales it be understood to mean long as as the is able to do the work properly employer and the in continues the busi- long ness. otherwise, Stated as,” words "as like "permanent” may "lifetime,” be taken either literally obligation perpetuity as an or seen as steady employment. an offer of

Since, case, this there is more than one 9While Justice Levin characterizes the durational term of the offer " ” long work,’ as ment, 'as citing long able to do the [she was] the Restate 691, post, p proofs words, rest on the "as as she sold.” long scope "As as” does not establish the or duration of the agreement. See, e.g., Sparta-Tomah Co, Tanner Broadcasting Co v (CA 1983) 1155, 7, F2d (applying law); 1158-1159 Starling Wisconsin v Industries, Inc, (CA 382, 8, Valmac 1979); 589 F2d Fleming v cf. Davie v Trucks, Inc, 917, (ED Supp Pa, Mack 1981); 308 F Mining Co, (1892) 492; ("as Lumberman’s 93 Mich 53 NW 625 long tory (1924) (" they pay, as” could make too uncertain to enforce an execu contract) Caplis Monroe, 586, 588; with v 228 Mich 200 NW 123 paid stay 'as as I the rent I could there until she ”). added.) property (Emphasis sold the Opinion Boyle, J.

possible meaning language long of the "as as” she meaning signals temporal sold, that limit and generalized provides that another performance expectation in terms for the employer,

of the I cannot agree "plain meaning” language that the of the employed addresses when or how termination will employer any particular occur, or binds the length of time. "permanent Terms such employment” as have meaning.

no immutable When used in different concrete situations ent If different individuals differ- meanings may fairly be attached to the term. employee paid

the has in money or in some way other "permanent for the employ- ment,” likely is parties that both understood long was to as endure as the perform is able work which he is hired or at least until age. retirement payment of a evidentiary consideration is an factor bearing on proper interpretation parties’ of the intention. can It follows that other evidentiary factors perform the same function. In each all case the circumstances are to be may considered. It parties shown that meant or did not mean something Perillo, definite. & Contracts [Calamari (3d ed), 2-9, pp § 60-61.] problem analyzed dispute If this aas over interpretation, meaning i.e., as,” I "as Riley’s opinion fully read Justice consistent acknowledged construction, with the rule of Toussaint, the Court’s task is "to construe 'permanent’ consistent with the circumstances sur- rounding Id., formation . . of the contract . .” p analyzed

If term, as a case anof omitted Farns- supra, pp worth, fully 7.17, § 531-532, the result is also regularly consistent with courts that have agreement found that an is silent with re- 437 Mich Boyle, spect despite to termination case, is an omitted promises by implica- absolute on Then, both sides. they invariably supplied tion, have almost a term allowing party either to terminate at will.11 party agree- When one seeks to terminate an respect ment that is silent termination, with party may other and claim omission that silence is not promises parties that, since the are agreement absolute, the admits of no termination. Despite superficial appeal argument, of this difficulty resolving courts have had little problem interpretation threshold find so as to supra, pp an omitted case. Farnsworth, § 7.17, although 531- emphasizes 532. Farnsworth this dispute frequently arises in the con- text, traditionally "[c]onscious of the intimate na- relationship employer ture of the between employee, regularly courts have found that termi- despite prom- case, nation is an omitted absolute by implication they ises on both sides. Then have invariably supplied allowing almost party a term Id., either p terminate at will.” 532. explains promises just that, Farnsworth as modern courts conclude that in a bilateral contract are absolute, not but include constructive conditions of exchange, they promise conclude that the relied on supply here cannot be read to a durational term. century, In early the seventeenth common-law promises courts held that bilateral were absolute parties explicitly qualified unless one of the the promise. party perform, Thus, if one failed to the party escape other liability merely "could not party performed because the other had not what promised he had in return.” Farnsworth, 68 Colum LR 863. Later common-law courts concluded that say may This is not relief not be awarded under an agreement indefinite restitution, on the agreement, basis of the terms of the Farnsworth, 3.30, supra, pp or reliance. § 208-210. Opinion by Boyle, J.

despite promise, performance an absolute parties’ promise each "is made a condition of the duty perform Farnsworth, . . . other supra, p8.9, §

According Farnsworth, modern courts do approach follow a literal to contract construction greater defining but "take liberties in [the its scope.” Farnsworth, contract’s] 68 Colum LR 863. interpreting promises absolute, Rather than modern courts conclude that each defines performance, party’s necessarily but does not performance. Thus, address the conditions of they dealing courts conclude that are with an performance. term, omitted same the conditions of reasoning applies when courts consider lan- guage such as the "as as she sold” statement upon plaintiff predicates which the her claim.

Despite reject the fact that modern courts this approach party literal and conclude that neither language intended the to cover the duration or scope obligation, supra, Farnsworth, 7.17, § pp 531-532, the dissent read would the words as resulting obligation conceivably absolute, in an extending plaintiff’s approach for life. The accuracy confirms the observation "clearly dissent evidences insistence that this Toussaint,” Court broaden the reach of . . . Riley, p J., ante, 651, an observation that is further supported by comparing analysis the here with majority. that of the Toussaint majority validity Toussaint,

In the assumed the precedent "permanent” of that a contract for em- ployment Lynas term, was for an indefinite v supra, Farms, Maxwell and found an that em- ployee may hired for an indefinite term nonethe- obligation less have an enforceable of "for cause” discharge. despite recognition case, In this the in precedents require Toussaint of the fact our that 627 437 674 Mich Boyle, " 'permanent’

construing the with cir- consistent surrounding the con- the formation of cumstances plain p id., 609, on the tract,” the dissent relies meaning long supply to a durational of "as as” term.12 opinion

Finally, as consis- I read Justice Riley’s Con- of with the modern view Restatement tent tracts, 2d, 2-204(3), that indefi- § 33 the UCC pre- regarding not material terms does niteness existing,13 that context is contract vent a from agree- meaning the to the of referenced determine appears Contracts, 2d, § 33 1 Restatement ment. chapter offers. It of which deals with

the the work expresses a court should find the view that simply "one no or there is because bargain proposed are left of the of a more open terms 33(3). uncertain,” § That the illustration or addresses the enforcea- relied on Justice Levin promise, supported bility duration, the not its is of (d) the contract "[w]hen comment both explicit acknowledges implicitly the lack of an Justice Levin parties’ regarding the term when he discusses contentions durational Post, 681, p just-cause n 8. of a term. the existence According nonexistence dissent, upon predicates the statement Rowe to the which done, paid, compensation to to be claim defines "work be her and a find, contract, may term so the trier of fact durational offer, express employment acceptance upon an contract of Post, long work.” as is able to do the was formed for as any pp reference to a 687-688. Nowhere in this statement there Furthermore, just-cause logic if the dissent is dismissal term. long adopted, "not for as this unusual work,” post, p preclude employee employer would is able do the any except terminating reason a failure meet from performance. Even if limited "as the standard of Justice Levin Conduct, the Rules as she sold” statement with of Personal only employer to sell or would be entitled to terminate for failure grounds A for immediate dismissal. termina one of the enumerated ground, including any an economic down on the basis other tion reorganization, requiring layoffs, absentee a business excessive turn tardiness, ism, presumably be a breach contract. or chronic would Ass’n, in Dumas v Auto Club Ins As observed concurrence (1991), precluded 521; the Court 473 NW2d 652 would not Mich from the ucc to resorting "gap analogous contemplated fillers” those under ambiguity. supply an term or to resolve an omitted 675 by Boyle, performances calls for successive but is indefinite commonly by duration, in party, it is terminable either requirement with without or of reasonable by (d), Reporter’s notice,” and note comment citing Co, Sidran, Tanenbaum Textile Inc v 1968). (Tex App, SW2d In Civ Tanen- obligated pay baum, a manufacturer was a one percent produced by commission on sales plaintiff, against the defendant’s claim that "the agreement ... too is indefinite to be enforceable (1) specified in that: its duration . . . is not .” holding imply

While the law would that a reasonable time was the durational term intended parties and that the contract was not too specifically enforced, indefinite to be the court stated: Where a is silent as to the time it tois

run, provides it is to run indefinite term, it is not invalid for that may reason but party terminated either any [Id., p at time. Emphasis added.] part opinion sum, fully In I read i of the to be consistent with the black letter rule that where parties have failed to set forth a material interpret language term, the court must parties’ conduct to determine the intent.

hi plaintiff promissory theory relied on a of liability implied-in-law prong policy and the of arrange- employment Toussaint. In the context of promissory theory liability analyzed ments, a is light presumption employment will, procedural presumptions, that, device like other legal simply recognition expec- normal 437 Mich Dissenting Opinion Levin, J. parties situations.14 most tations proofs the are insufficient that Where is asserted promissory implied- fact, the to create an issue requires the the court to focus on in-fact claim to determine or of the defendant words actions manifesting an evidence there is sufficient whether job security. to make a commitment intention commitment-making ac- defendant’s Where the likely predominate, is, it is more that where tions promisee would believe not that a reasonable than making employer that the a commitment that promise, presumption over- the is amounted to a commitment-making come. Where defendant’s predominate no there exists do not and actions other basis to regarding scope supply a term obligation, promissory theory is duration of the inappropriate an rationalization for enforceable obligation. contracts, Pettit, unilateral Modern (1983). ULR 551 Boston agree on this record "defen-

Because I that commitment-making predom- do not actions dant’s p agree inate,” 577, I of the id., that the decision Appeals affirmed. Court of should be Supreme following opinion with Clerk of the The was filed 1991, opinion August release of the Court on after the Court 31,1991 Reporter. July on — (dissenting). J. Levin,

i opinions concurring misstate the The and lead proceed issue, of a the basis mistaken on assumption._ prevent proof presumption does of actual intent The not unjustified promissory employed permit evasions of

should liability. Rowe v Dissenting Levin,

A assumption mistaken concerns a fundamen- point tal of law. It is assumed that statements Rowe, made to Mary corroborated person her, who hired advising sold, that "as as I I would job Ward,” have a at Montgomery did not provide a durational term for the contract of em- ployment assuredly most was entered into when Rowe went to work for Montgomery Ward.1

Section 32 of the first Restatement of Contracts method stated "a determining provided the length of the engagement” thus, and, a dura- — tional promises him, term —where b to employ otherwise, parties supplied Stated where have not term, employment durational iswill term inferred supplies by J., ante, the court p construction. [Boyle, 664. Emphasis added.] stated, special Otherwise [reliance is consideration] circumstantial evidence the that omitted term durational will)

the (employment court would otherwise infer at does not parties’ [Id., p Emphasis reflect the intent. 665. added.] [C]ourts are much more reluctant to infer a durational term. [Id., p Emphasis 667. added.] employment arrangements, In most the term durational is agreement inseparable central to the is because it from the question reasonably threshold whether commitment could promise. Emphasis understood to be a [Id. added.] Riley’s agree I with Justice conclusion that there is an presumption supply insufficient basis overcome the context, perfor- omitted durational term. In this the standard of guide mance is not sufficient the Court on the central question parties’ regarding of the intent the duration of the employment [Id., relationship. pp Emphasis 667-668. added.] true, however, just It party bearing as that the the burden overcoming presumption of of will at must supply convince court either that it should an omitted term jury or permitted are circumstances such that should be [Riley, J., ante, p Emphasis to so conclude. 639. added.] 437 Mich Dissenting Levin, J. long b is able as a "as to serve promises b added.) the work.”2 do (Emphasis Williston, re- Professor Samuel

Clearly, Corbin, special Arthur L. and Professor porter, in the involved advisor, luminaries3 and other Contracts, were the Restatement preparation as to serve promise that a opinion a method provides work to do the one is able and, engagement length determining hence, term. a durational

B in the appears the issue The misstatement opinion: the lead following sentence defen this case is whether posed by The issue policy and written employer’s oral statements dant statements to nate interpreted plaintiff may be directed at termi implied in fact not to promise permit cause.[4][Emphasis except for added.] on discharge predicated wrongful A claim "as plaintiff” e.g., directed at "oral statements — sold, have a job I I would long as express of an on the basis recovery Ward” —seeks implied not a A claim in fact. promise, policy "written employer’s on an is based 3, c, Contracts, 32, pp 41-42. illustration comment Restatement § d, Contracts, 2d, 33, p Now, illustration comment § Restatement Davis, Cardozo, Hand, Benjamin John W. Owen N. Learned others, Roberts, Root, of the of the Council were members Elihu and required Restatement could before a concurrence was Institute whose promulgated. be ante, opinion Riley, J., signers that p of the conclude 636. The support of a allegations her contention "plaintiff’s promise insufficient to are right limiting terminate implied to the defendant’s in fact added), "objective (emphasis employment,” that evidence and id. her juror lacking permit find that a reasonable to to a reasonable [is] interpret Harryman’s and actions as statements promisee would Id., p implied only in fact.” promise cause of termination Montgomery Ward Dissenting Opinion by Levin, would, indeed, depend

statements” implied on an promise.

The signers of the lead opinion err combining inquiries: two

—Did the "oral statements directed at” Rowe give contract; rise an express and

—Did Montgomery Ward’s "written policy state- ments” "imply promise fact” a not terminate except for cause?

In thus issue, misstating the majority asks the wrong question, perforce and reaches the wrong answer. express

Rowe’s contract claim for wrongful dis charge depend does not at all on Montgomery Ward’s "written policy statements”5 or on terms left claimed, testified, inference. Rowe she person corroborated, who hired her and the jury found, that Montgomery subject offered — Rules Personal Conduct enumerated grounds discharge6 employ her to appli sell —to Since Rowe was hired in before Ward issued its handbooks, 1982 and 1983 policy manuals or the written bearing statements there set forth no have on the terms of her contract. Rowe’s gave assertion that Rules Personal Conduct rise to legitimate expectations discharged will, that she would not be at suggests terminate clusion seeking recovery implied promise that she was on not to employment except majority’s her for cause. But the con- promise no such can inferred does not reach decide question promise the sation compen- whether the aat stated gave as express employment sold she rise to an If, accepted found, jury she when the offer. as the acceptance contract, resulting formed a contract was express, implied. hired, given signed When copy Rowe was she was Rules Conduct follow: Personal Conduct. full text of the Rules of Personal

Rules of Personal Conduct Everyone working goals. Company Wards for the same Mich 627 437 Dissenting Opinion Levin, J. long compensation as she for as at a stated anees selling. work, i.e., Those terms to do was able personal Company policies high stan- and Your adherence Profit, Growth, help you Secu- and achieve: dards will rity, Wards career. Successful However, extremely following harmful are activities store, anyone in them will of our and involved the success immediately dismissed: (cid:127) Theft property misappropriation

(cid:127) or Destruction accepted (cid:127) moral standards Violation (in- falsifying Company Manipulating, altering (cid:127) records

cluding employment application) any Dishonesty (cid:127) kind regulations rules and should be familiar with Wards and You governing you your job. procedures and

all of the according you always yourself conduct are confident will We good rules of conduct. to the agree My the above statements. trainer I have read and policies governing explained Company and rules has job. expected my I of me as an understand what store employee. 9,1976 Aug. Mary /s/ Rowe_ name) (Date) (Employee’s (Date) (Trainer’s name) part employee’s permanent file. becomes a of the This sheet sewing at a store in was hired 1976 to sell machines Rowe major appliances. Rapids. Later she transferred Rowe Grand received sewing straight percent nine commission for the sale of major percent appliances. and six the sale of machines hired, Harryman, interviewed Vernon When Rowe was she was Harry- manager appliance department. the man sold, of the Rowe testified said, requirements job explained "as as I job Montgomery Harryman Ward.” testified I would have of her Rowe if did riot make the amount that he informed she months, against she would be commission for two consecutive draw reviewed and grounds that such would be for dismissal. failure salespersons Harryman different were testified that commissioned Dissenting Opinion by Levin, express, implied. were all none were Since the made to Rowe stated a dura required performance tional term and no of Rowe sell, then, than that other she a term absent employer for the inferred beneñt of the that she discharged could be for not in a cause stated Conduct, Rules of Personal Rowe dis could be charged nonperformance, only i.e., for failure to sell, or a cause stated in the Rules Personal t.8 Conduc Montgomery discharged

When it Ward Rowe did not claim had that she ceased to be to do the able contrary, work, i.e., to sell. On the Rowe’s sales exemplary.9 record was The stated10 reason for discharging Rowe on was that one occasion she left hourly employees: generated "[GJenerally, from and they as sales honest, Wards, why, they job way were had a and that’s the people.” we used to hire our He said that Rowe would to sell have $2,000 approximately and that was that, sewing draw, machines a week make her to thing, employment, one the number condition of and generate months, employ- if she failed to such sales for two her subject ment would be to termination. 8 Conduct, they The Rules of Personal insofar as enumerated grounds discharge, part express by for were contract asserted Rowe. deciding cause, properly discharged In whether Rowe was for not, however, jury inquiry was limited to an she whether had violated particularized grounds discharge the Personal Conduct. Rowe ily expressed set forth in the Rules of acknowledged employee may that an ordinar- discharged regard be for cause without to term whether such a is it hiring. But, expressed, at the time of if such term not a is employer implication will who later seek to establish term may discharge although that he for cause otherwise has duly performed work. Montgomery sought justify discharge Insofar as Ward Rowe’s on Conduct, the basis aof cause not stated in the Rules Personal Montgomery sought implication was Ward who establish term —i.e., "cause,” discharged only any Rowe could be cause stated in the Rules Personal who Conduct—rather than Rowe was seeking, signers declare, opinion erroneously as the of the lead except infer a for cause. that her could not be terminated 9 frequently prizes Rowe set sales records won and for her sales efforts. 10But nsee 19. 627 437 Mich Dissenting Levin, J. permission note on and failed to

the store without The had been absent. time card that she her question discharged properly was whether Rowe failing punch time out on her card for cause jury,11 by its verdict12 submitted to punch jury out was Rowe’s failure to found that discharge.13 not cause to switch shifts

the form of a with time her friend on "loss they to that she could be dismissed spect to the department, Friday testimony commissioned attend considered returned that, ized exit. punched herself that major mony. Saturday Rowe testified Rowe was scheduled Rowe testified obtain her time card of her extended absence It does not Rowe commenced this The supervisor suggest to time. Rowe had contrary prevention claiming in appliance to and signers out. Rowe returned about the Upon checking a verdict of her a about taking trade did personal there was an and March, hospital. warning quota . to the employees appear breach of contract and to tell him not come in with that that of the lead department. officer” observed trading she that that Ward. all jury’s asserted another she her Rowe day . . $86,500 matter occurred that Rowe had she or a to work attempted her time .” switched shifts in was familiar with the so that Morris could Saturday verdict, action At for cause. See ns did not leave the store without adequate Riley, J., reprimand during agreed, opinion on Another salesperson, she could on about for Rowe. The the that between Saturday. against Montgomery Saturday card, Rowe leave there was general, their shifts back and 6:00 on switch, but added Saturday. off. Rowe 2:00 number of any disciplinary misstate Rowe’s ante, the wrongful he "only p.m. 1:00 from the store. p.m., Montgomery Marie previous observed but p Morris afternoon and 8 and cause for dismissal. Rowe made no notation p.m. 644. She majority that she her through also testified that visit he staffing needs of the dismissed for specifically persons confirmed discharge. Morris, 65. nearly confirmed Rowe’s did evening that she had a record, and had even 9:00 position when inWard might acknowledged terminally an unauthor- does not work on asked Rowe staffing eight years forth from p.m. her to assuring with re- not find have even in failure reach May, testi- on a jury not the ill to punch employees required Harryman to while were testified that all out, changed. they policies frequently that He indicated in and really these said, salespersons. application "The He had little commission work, figures. thing those It was sales. was to attain draw number one slogan at of sins. That was our favorite covered a multitude Sales salesperson he that was the best commission He said Rowe Wards.” with. had ever worked work, waiting security guard was for her a When Rowe returned Dissenting Opinion Levin, C long with as” Contracts "as durational terms are express contracts. The that majority concludes an express maintain action on an "as as” promise promisee employment, must establish promise implied promisor not to dis- will. charge promisor The conclusion that renege at will he may impliedly promised unless renege not at will is without in support cases,14 gener- and should be viewed by promisors run, ally may, those who the short be- —even lieve today’s that is to advantage— decision their as excessive.

D The majority compounds errors mis- stating A, 677), (subpart p issue in proceed- and ing to decision on assumption the mistaken that made to Rowe did not state dura- (subpart b, p 678), tional term donning the mantle trier of fact.

On the basis subjective of its intuition that and her manager. escorted to the office of store Rowe was told company policy. that she honestly Rowe card and responded had violated a She that she policy they talking did know which were about. When punching that was told she had left the store without her time company money, responded cost had she that she anyone worked on day. commission and more had sales than sorry punch gone, Rowe added that she was that she did not out while and so in would do the future. sign paper” Rowe that she said was asked to "another and that she happened sign should Rowe "read over and down write what it.” manager refused. was then called in and said he had responded no choice but to dismiss Rowe. she he When would be losing had, "Yes, salesperson know,” responded, the best he he I something then said to the effect that he had no choice. Saturday Rowe testified she had left on that afternoon to assist elderly ailing housekeeping preparing her her for and father with chores parents’ mother, away home for the of her return who had been a number months. 14 part ii-f, ff, accompanying See n 34 text. 437 Mich 627 Opinion by Dissenting Levin, J. agree reality” "in did not will,15 discharge at discretion” to "managerial limit not "mutual there was finds majority parties did assent,” the "minds” not meet.16 approach, objective

Under the traditional promisor, Mont- not on what focus is correct intended, Ward, but on what actually gomery of the promisee, in the position reasonable person Rowe, meant.17 offer would conclude

E a comment about begins with opinion lead Michigan, & Blue Cross Blue Shield Toussaint v (1980), stating that 579; 292 NW2d 880 408 Mich to non- security this job there Court "extended unionized employees.”18 not, however, job security extend

Toussaint did prom- It ruled that employees. simply to nonunion extended —not that had been job security ises courts, enforce- by employers rather but —were v General in a of law. In Valentine able court Credit, Inc, 258; 420 Mich American (1984), a Court said: NW2d unanimous which Toussaint makes contracts provide employee will not be dismissed that an the same except enforceable in manner for cause recognize employ- It other did not contracts. right or create a new ment as a fundamental [Emphasis "special” right. added.] Toussaint, thus, job did not create entitlement 15Riley, J., ante, p 631. 16Id., 640, 643, pp 644. m, (3d 2-2, Perillo, ed), p part n Calamari Contracts See § &

74 ff. 18 Riley, J., ante, p 631. Montgomery Dissenting Opinion by Levin, J. security nonunionized It employees. simply if ruled that an employer promises a job security, of law promise. court will enforce that Today, court retreats from promise enforcement a found on an adequate record to made have been to employee. an Ward,

Montgomery responding apparently Toussaint, required has all persons hired newly "sign since 1982 to off” claim any job security by acknowledging in writing promise no of job hired, was made. security however, Rowe was before employees required new were sign, so sign and refused when asked to do so.19_ 1983, hired, years In 1982 or a number of after Rowe was she was will, sign writing stating employment asked to that her was at and posit majority disposition refused to do so. The does not its of this that, appeal she was bound although expressly agree thereto, on the basis she did not employee in the statements manuals distrib uted after she was hired. August Sometime after Ward issued "Em- ployee president introductory Guide” that company included an from letter ceo, introductory suggesting as well as other materials employees. that the manual version of the slightly was directed to new A different manual, employees, also directed to new issued in was May, Each page version of the manual had final or "tear-out” "cut-out” Sign-off Sheet,” "Employee employee which was labeled was asked to nel employee. Ward which the sign person- supervisor and return to the immediate or representative personnel for inclusion within the file of the sign-off employment Montgomery The sheet stated that will. was at sign sign-off Rowe testified she refused to this sheet when it presented inscrip- to her. The back the document contains the sign. Mary tion: & "Read do not wish to 5-20-82 Rowe.” Rowe [/s/] form, sign testified that she said she not would and she "didn’t really new right along sign it think was to come in 1983 and ask me to handbook.” Rowe, According following conversation occurred between personnel person department: and a her A. I took back to the officeand I handed the book to them said, sorry, cannot, truth, sign this,” I "I’m but I and I

handed her the book. Q. Spruit]: And this [Mr. was Ms. Foster? A. Yes. Q. say? what she And did 437 Mich Dissenting Levin,

F majority mischaracterizes also "permanent” "life- as one to Rowe made employment. time” ordinarily deemed A contract agree parties if the do at will terminable

to be on the duration agree employment, or on of the employment. "permanent” or "lifetime” erroneously opinion signers lead The long equate term with as” durational an "as long employment” "permanent as one "As term.20 "permanent” "for life.” is not can sell” "extraordinary”21 promise not an is Such a employment "permanent” promise or "lifetime” employment promise rather, but, a not unusual employee long able to do work. for as as promised allege she was not Rowe did employment. rather, permanent22 claimed, She promised employment for "as that she was By required terms, its such rate. she sold” said, pardon. said, beg your sign it.” I "I "You have to A. She feel, you country really feel in and I don’t This is a free —if it,” going sign right sign, I’m not your not heart that it’s it, job.” said, sign you you So this don’t have a she "If don’t and went forth, week, "Sign on, think, back and I for almost "No, employee. book,” sign It it. I’m a new I feel I can not don’t sign said, you right. right.” finally, "All If don’t she isn’t So just got book, acknowledge you I it?” and you will at least the said, that,” paper, "Yes, I sheet of wrote do and so on a I will it, part signed it. sign” initialed it or "refused 20 orally grounded any Consequently, stated that the court employment obligation permanent "must be for contractual hope optimistic expression of a than an based on more ante, J., Emphasis p long relationship.” [Riley, added.] 21 472, 517; pp Michigan, 432 Mich v Automobile Club of Bullock J., ante, (1989) (Griffin, J.), by Riley, quoted 640-641. NW2d 114 opinion appear the correct signers to state that the lead provision for assent on a inquiry "there was mutual is whether added), Riley, J., ante, p (emphasis see permanent employment.” n for the full text. Dissenting Opinion Levin, J. "permanent” is not for or "lifetime” em- ployment but, rather, for a dura- tional term coextensive with the time that employee is do able to the work.

G part The "issue” dealt with in n of the lead opinion argued by Rowe, briefed or appellant, may properly Court, in this not now be addressed this Court. position

Rowe has not advocated the dealt with majority adversely to other liti- gants Court, who are not now before but whose pending applications cases are in this Court on by employers appeal filed leave from deci- Appeals. sions of the Court of

H question presented A correct statement of the is: tending Does the evidence to show that Rowe was by Montgomery understanding hired Ward on the subject that, to of Rules Personal Conduct enumer- ating grounds discharge, job for she would have a long sufficiently support sold,” "as [she] as the finding employment that her contract of was not Montgomery terminable at the ofwill Ward? contrary majority, hold,

I would to the by employer employ person —An offer an a compensation long person for stated "as as” the "is able to do the work” —here to "sell” a sufficient appliances amount of to earn commissions at least equal weekly clearly, specifi- to the draw —defines cally, unambiguously and done, work the to be the compensation paid, to be and durational term of may contract, the upon acceptance find, so that the trier of fact express offer, of the an Mich Dissenting Levin, J. long employment the for as as formed of employee the work. is able to do provides de- for a method the contract

—Since namely, length engagement, termining the of the employee length to do is able time the work, contract is determinable. the duration of the sufficiently definite, al- is duration therefore The though long employee will how it is uncertain and, thus, the con- when to do the work be able tract will terminate. employer to the an made such

—The provide employee employee at a work with —to long compensation is for as stated able implied.23 express not to do the work—is "presumption” employment will is —The express promise a deter- such overcome minable employment. sufficiently and, hence, term of definite will be held to be what —An offeror’s intention person position other in the reasonable a party offer would conclude the meant. inquiry therefore, case, in this

The correct person position would a reasonable Rowe’s what job sold” the offer for "as as she conclude appliances, subject requisite amount of Personal Conduct enumerated Rules regard discharge, grounds meant with at the her was terminable whether will of only Montgomery for cause. Ward be on what Rowe The focus therefore should reasonably offer meant concluded the could have regard employment, termination with actually in- on whether not rather, employer, might rely on a term who seek to It is fact,” employer may, although "implied namely, he did so, employment— expressly right to do terminate the reserve the cause, prefer though employer he for would at will —even at least expressly promised long employee employment for as employee to do is able the work. Montgomery Rowe v Dissenting by Levin, J. providing tended or meant a contract only termination for cause.24 undisputed Harry man,

It is that Vernon when promissory Rowe, he hired made the or statements they "manifestations” both related at they trial, when testified that she was told that as job Montgom- as she sold she would a have ery signed Ward, and that Rowe Rules of Personal enumerating grounds discharge.25 Conduct jurors properly Reasonable could conclude on Montgomery basis Ward intended to provide employment not terminable at its will but only cause, because that is what reasonable position might reasonably woman in Rowe’s con- by promissory clude Ward meant its or statements manifestations. question

—The answer to the whether the words parties support used are sufficient finding employment that a contract of was entered depend into does not on whether the words are set writing expressed orally. forth in a or are There is requiring "objective support,” no rule of law in the writing manual, form a other or other corrobo- evidence, rative for an oral term a contract of employment.

—A durational term of an negated, law, is not that as a matter of evidence employee inquire not, hired, did when "negotiate” job security, about, for, or or evi- seeking posi- dence that the a sales "singular, job tion rather than executive position[ ].”26_(cid:127) is, thus, inquiry The correct not whether the "circumstances parties ante, suggest both (Riley, J., 636), p intended to be bound” reality agreed employer managerial

whether has "in to limit 631) (id, added.) discharge p (Emphasis discretion” at will. 25Harryman, manager department, appliance Rowe hired testimony. and corroborated her nSee 26 Id., p 643. Mich by Dissenting Opinion Levin, J.

II Montgomery indisputably en- Rowe and Ward express into oral contract tered Montgomery employ Rowe when Ward offered long compensation for a for as as she stated appliances selling work, to do in an able earn least amount that would commissions accepted equal weekly draw, to her and Rowe began offer and work.

A question long The is whether an "as as” term sufficiently certain to be enforceable has been by in a The considered courts number contexts. on has author of one treatise the law contracts up pertinent law as summed case follows: by provides Where terms that it the contract its upon happening is to terminate a stated performance event, or to continue until the is happening event, it not too of a stated is indefinite impossible though enforcement, even it is happen. example, if tell when the event will For long by performance contract is continue so parties engaged business, as the are in a certain sufficiently as the duration definite agreement Similarly, to be enforceable. where long weekly payments promi- is to as the make so business, or sor conducts a certain where a vessel government one is chartered to the for month and longer required by may as much the war department. plaintiff's employment as workers trained Also, where was to continue so plaintiff ployment agreement employer, retained the em- were sufficiently was held deñnite contract, as to duration to constitute a and was Dissenting Levin, not terminable at the will of the employer. [Simp- (2d son, ed), Contracts p Emphasis 75.27 § added.]

Section 32 of the first Restatement of Contracts spoke certainty expression, of the need for specifically promises employment.28 included § Restatement illustrated the 32 "black letter” concerning "certainty” statement of the rule with following example:29 the

A promises b to employ him for a stated com- pensation promises and b A to serve therefor as long work, b as is able to do the long or as aas specified business promises on. These is carried contracts, provided create as a method is for deter- mining length the engagement. the Restate- [1 Contracts, c, ment 3, pp comment § illustration Emphasis 41-42. added.]__ recognized: The author of this treatise also employment In the case of contracts without fixed duration universally only seems to be employment held that at will is [Id., p created. 74.] 28 Requirement Certainty in the Terms of an Offer. terms, require An offer must so be definite in or its such acceptance, promises perfor- definite terms mances that the by party reasonably be rendered each are certain. Comment: a. only Inasmuch as the law of contracts deals with duties by expressions parties, defined Section is of the the rule stated in the necessity one as well as of law. The law cannot subject person duty give a a contractual another a right contractual by unless the character thereof is fixed agreement parties. pay A statement that he will b promise. promise by give what a chooses is no A b employment wholly illusory, is not but if neither the character employment compensation stated, of the promise nor the therefor is it, is so indefinite that law cannot enforce even if given Contracts, 32, p consideration is for it. Restatement [1 § Emphasis added.] 29See n 28 for the 32 black letter § statement of rule. 437 Mich Dissenting Opinion Levin, J. example repeated in

That the Restatement of Contracts, Second.30

B Employment generally are oral. The contracts §32 contract set forth in of the Re- illustrative statement of Contracts is an contract. Nothing suggests there that such a contract must writing, inbe or that the contract formed promissory exchange between was in b writing. properly

Nor could a distinction drawn be- long I tween "as as am able to do the work” and long "as as I am able to sell.” Rowe’s work was selling long is all she was hired to do. "As —that meaning I sell” has the same in her contract of employment as "as as I am to do the able work.”

c reporter Williston, for, Samuel and Arthur special Corbin, the advisor to the Restatement leading Contracts, are the authors of the multi- volume treatises of the law of contracts31—stan- courts, universities, dard in works and law offices throughout country.

D opinion The lead relies on in a obiter dictum " long you footnote that characterizes ’as as do the 30 employ compensation long A offers to b for a stated b is as as work, specified long specified able to do or a as as business is on, accepts length carried engagement and b the terms offered. The sufficiently definite for the formation of a con Contracts, 2d, 33, d, tract. Restatement comment illustra [1 § 5, p tion 94] 31 on Williston Contracts and Corbin on Contracts. 693 Dissenting Opinion by Levin, ”

job’ as a expressing "hope and non-contractual wish,”32 The opinion containing that characteriza- tion in obiter dictum was signed written and one judge, and cites no authority.33

E The author of the lead in opinion this case also wrote the in opinion lead the companion case of Dumas v Auto Club Ins 521; 437 Mich Ass'n (1991). NW2d 652 There the Court considers enforceability promise a to a pay percent seven renewal commission representatives sales long as "as they Club,” were employed by Auto "forever,” or or "always,” or "words to that effect.” added.) (Emphasis The signers of opinion the lead not, here, do say promise such a is un enforceable because nothing constitutes more than an expression of "hope and noncontractual 32Carpenter Co, 933, 936, (ED v Supp American Excelsior 650 F n 6 1987). Mich, panel A Appeals of the United States Court of for the Sixth Circuit Carpenter commented on as follows: judge, fact, Here the district as trier of was faced with a

specific promise coupled performance awith standard. Unlike Carpenter, Diggs [Diggs 914, sign "employment-at-will” did an clause. Pepsi-Cola Co, Inc, v Metropolitan Bottling IV 861 F2d (CA 6, 1988).] not, hired, agree writing Rowe did when orally in or that her employment was at will. sign When she was later asked such a writing, coupled Rowe Montgomery her presents specific she refused. This case also "a performance with a standard.” The evidence showed that understanding was hired with job that she would have generated Ward as as she sufficient sales cover weekly draw. judge, subsequent opinion denying in summary judgment, may the ing and that Carpenter have Carpenter recharacterized when he said that employee signed application employment acknowledg had employee pleasure company, that the served at the will finding contract, just-cause sought such a case a aof predicated policies procedures on enumerated in hand 676 elsewhere, precluded. Co, books and Ross v State Farm F Ins (ED 1987). Supp Mich, Mich Levin, Dissenting Opinion rather, wish.” They adopt, three other modes of analysis.

Proceeding on apparent premise that such a made, promise, enforceable, if signers would opinion the lead in Dumas conclude that —the one hundred thirty-nine representa- sales tives comprising Group a could not recover be- cause the "as long promise alleged as” there was made, not "expressly” long not because an as” "as promise in an oral employment contract is not enforceable;

—the twenty sales representatives comprising Group b not promise could recover because the was capable performance not within one year was writing;

—the twenty sales representatives comprising Group c could not recover because the hired, not made when were after they but work, they began and the did not circumstances demonstrate mutual assent.

F Courts generally regard long "as as” contracts as considerably expressions more than of a "hope but, wish,” rather, noncontractual express- as ing a durational term. Court, Monroe,

This in Caplis v 228 Mich 588; 200 123 (1924), NW held that an oral lease- hold a term and, was for not exceeding one year, hence, frauds, not violative of the on statute of basis of the tenant’s testimony that the landlord " told him that I paid 'as the rent I could there until . . stay property. she sold the .’” This Court said: plain constituted concise lease in Rowe 695 v Dissenting Opinion Levin, J. contingent

terms of but determinative duration. in law That certain which can made certain. specified contingency might The year occur within the understanding and there no was that would [Id., Emphasis p not. added.] United Appeals The States Court of the Circuit,34 Supreme Sixth the of Mississippi,35 Court appeals Colorado court36 and a York trial New court37 have held that employment oral contracts long for "as as” the employee maintained his level,38 performance at a certain a business was operated at the the place,39 plaintiff named was a stockholder of corporation,40 the or the defendant employer trained, "continued to workers employ 34 panel Appeals A of the United States Court of for the Sixth held Circuit that an oral retain district as " manager long performance sales 'as as his maintained ” added.) IV, (Emphasis Diggs certain level’ was enforceable. n 32 supra, p 916. 35 Supreme Mississippi The Court of held the term of duration employment long of an oral contract for "so as the business was operated place” at the named is not "so indefinite” as to render the provided determining contract "as invalid a method is therein for the length engagement.” Co, of the Thorne v True-Hixon Lumber 167 266, 273; (1933), relying Contracts, Miss 148 So 388 1on Restatement 32, c, 3, pp § comment illustration 41-42. 36 Appeals plaintiff The Colorado Court of ruled that where the had employment manage entered into a written contract of a camera supply capital sold, percent taking business that he had back ten of the purchaser, could, stock parol of the he consistent with the one-year frauds, evidence rule and the statute of maintain an action employment breach an oral durational term the written "allegedly long (emphasis contract. The oral term was for as as” added) plaintiff corporation bought was a stockholder which (Colo 1975). Rouse, 117, 118 App, business. Buechner v 538 P2d 37A New employment York trial court held an oral whereby agreed employ plaintiff manager the defendant "so " employ workers, a time as” the defendant 'continued to ” trained, developed gathered by plaintiff,’ objective "fixed an limit to the employment life of the contract —the date when the skilled employ workers should cease” to he defendant. 1943). added.) Storper, (NYC, (Emphasis Deucht v 44 NYS2d 351 38 n 34. See nSee 35. n 36. See 437 Mich Dissenting Opinion Levin, gathered plaintiff,”41 provided developed sufficiently definite durational terms. highest Minnesota and Massachu- courts of

setts dealt with nonfinite durational terms writ- ten contracts. The Minnesota court "sufficiently held that the durational term was agreed employ defined” where defendant plaintiff during the time "the business of said exceeding corporation continued, not should be corporation . . . .”42 term of the existence of said the durational The Massachusetts court held term was not too indefinite where the agreed

employer long employ plaintiff the "as as” he performed faithfully diligently the duties at and compensation the fixed.43 highest

The court of York held that an oral New agreement providing plaintiff the was the pumpernickel exclusive distributor of long bread "as plaintiff the defendant re- as” both the mained in was not "interminable” be- business long only as as the cause would last at most plaintiff and the defendant were both business.44 Supreme similarly The that an exclusive Court of California held plaintiff

agreement providing the with an plaintiff selling long agency "so as” the ” " agreement’ perform [the] 'shall terms ”45 "sufficiently was certain. image may In the mirror agreement, a case that be seen as of an exclusive New distribution appellate court held that a York’s intermediate provided, sufficient durational term was where the 41 nSee 42 (1895). Co, 156,157; McMullan v Dickinson 60 Minn 62 NW 120 43 (1929). Co, 251; Kirkley 167 289 v F H Roberts 268 Mass NE added.) (Emphasis 44 Co, 210, 220; & 128 NE Ehrenworth v Stuhmer NY (1920). Co, 158, 165-166; Drug Drug Long v 13 Cal 2d Beach Co United added.) (1939). (Emphasis 88 P2d 698 Rowe v Dissenting Opinion Levin, J.

plaintiff agreed orally and the defendant that the plaintiff weekly would receive check from the long plaintiff, newspaper defendant "as as” distributor, salesman abstained from distribut- ing newspaper. another The court found that unmeasured, "duration of the not contract was as plaintiff act, viz., it would continue until did an Telegram.”46 resumed sale of the Supreme The United States Court held " agreement by 'put oral a railroad to down the iron rails plaintiff’s maintain the switch for shipping long purposes benefit for as as ” he needed it’ within the local statute applicable 'agreement frauds to "an . . . not to be ”47 performed year within . . . . . one . .’ Supreme Judicial Court of Massachusetts promise by found that a the individual defendants pay plaintiff long month, [the so "$100 individual defendants] should be connected with corporation, plaintiff] the defendant [the if should having succeed in [individual defendants] sell them,” their shares to "carried its own measure of though predict impossible . time . . even it is precisely contingency when the will occur that will bring an end.”48

"As as” durational terms have also been sufficiently requirements found to be certain in agreement contracts.49 An to furnish water to a 46Rague Evening Co, 126, v Publishing New York Journal 164 AD 126-127; (1914). added.) (Emphasis 149 NYS 668 47 Co, 418, 434-435; 147; v (1896). Warner Texas & Pacific R US 164 17 S Ct added.) (Emphasis 41 L Ed 495 48 Phelps Inc, Shawprint, 352, 353-355; v 328 Mass 103 NE2d 687 (1952). added.) (Emphasis report agreement is silent whether the was oral or written. 49 agreements Courts have held be enforceable oral for the sale of the course of existing scrap during and such as would accumulate dam, building quantity being no definite or time of material indi (Mason-Walsh-Atkinson-Kier Stubblefield, cated Co v 99 F2d 735 [CA 9, 1938]), cutting, sawing, hauling and for the and of lumber from 627 437 Mich 698 by Dissenting Levin, long hospital in of Texas shall as the State "as hospital operate good at the maintain a faith and Supreme by of Texas to Court was found site” provide Su term.50 The and definite” a "certain agree preme found that of Wisconsin Court public telephones plaintiff’s ment to install long buildings as” them for "as and to maintain operate a tele and defendant phone system should maintain city ter "a time for its in the fixed requirements Similarly . . . .”51 worded mination contracts were also found provide adequate Supreme of Court Ohio52 durational terms n consideration, specific specific where the tract of land for a regard Lumber Co v duration. WP Brown & Sons was silent with (1939). 406; Rattray, 238 Ala 192 So 851 50 1966). (Tex, Control, 810, Big Spring 815 v Texas Bd of 404 SW2d 51 363, Co, 371; Superior Douglas Telephone City 141 Wis v Co (1909). 1023 NW following quoted approval the statement: The court with dependent upon may of a contract be made "The duration time, completion upon expiration period of a the given event, undertaking, happening of some all or the may or uncertain as to the date when which in turn be certain may happen. completed, undertaking may or the event the This however, uncertainty, termi- render the contract does not Co, Mississippi Logging 43 F River nable at will.” v [Robson (ND Iowa, 1890).] contract, case, agreed, under a written In another the defendant building occupied plaintiff and used steam 'while in the "furnish Supreme laundry held Court them as a steam ....’” The Wisconsin duration, clearly expressed thus the terms that the term "while” depen- the contract of the contract that the time of [was] "indicate[d] building by plaintiff upon occupancy of the dent the event of use and laundry.” Accordingly, for indefinite- contract was not void as a Laundry regard Co v Riverside Steam ness with to time. American (1920). Co, 644, 647; Printing 171 Wis 177 NW requirements Supreme ruled that a written The Ohio Court calling performance long plaintiff own should "so as” the contract fifteen shares of stock of the defendant plaintiff company, as” the or "so oil, gasoline, selling should continue the business grease, provided the dura which "an ascertainable fact or event . . . .” Fuchs v determined tion of the term of contract can be [the] Montgomery 699 Dissenting Opinion Levin, J. appellate court.53 and a Louisiana

G signers opinion authority The of the lead cite no long for the view that Rowe’s claim of an oral "as lacking "objective as” contract of is give only "subjective can rise to a be- support,”54 "clear and unequivocal”56 either lief,”55 inquire negotiate because Rowe did not about or job or because Rowe "stumbled” into security,57 seeking or because she was Ward,58 relatively position salesperson low level as a in- "singular, job stead of factors executive Those positions.”59 might properly argued jury, to a or a as a judge sitting fact, not, as trier of but do negate law, matter of formation of a durational spoken contract term on the basis of the words when Rowe was hired. signers opinion

The of the lead state that "be- difficulty verifying promises, cause of the oral clearly permit the statements must a construction supports which the asserted meaning.”60 again parties indisputably It is relevant that the relationship.” only entered into a "contractual dispute enforceability single concerns the of a relationship, long term the "as as” dura- Co, Inc, Stage 509, 512; (1939). United Motor 135 Ohio St 21 NE2d 669 added.) (Emphasis 53 Appeal provide The Louisiana Court found "pest repair guarantees control and services with for the lifetime of paid specified the treated structure so renewal as the customer annual period.’’ for a fee” was "definite and ascertainable State v Co, Inc, 198, (La Exterminating 1988). App, Orkin 528 So 2d added.) (Emphasis J., ante, Riley, p 644. 55 Id. 56Id., p 645.

57Id., p 643.

58Id., p 642.

59 Id.,p 643. 60Id., p 641. 437 Mich Opinion by Dissenting Levin, J. Montgomery not seek tional term. Ward did Harryman’s testimony that refute Rowe’s and agreed long term to. "as as” opinion signers of the lead cite

Nor do the express authority for their view words used must, oral contract terms more so than the words permit "clearly contract, in a con- used struction which a written meaning.” supports the asserted Caplis,61 in in The contract was oral and a number jurisdictions of the cases decided other where long pro- the courts found that an "as as” term sufficiently vided a definite term.62 durational Caplis, events, Court, In all this held that an " ” long paid I oral lease for 'as the rent’ and " ” property’ [the landlord] 'until sold the consti- agreement plain "in tuted tingent concise terms of con- determinative duration. but That is certain in law can be made which certain.”63 formality writing may sure,

To of a be provide some In additional assurance. a case such dispute this, however, as cerning where there is no con- said, what was and where the words clearly long would be sufficient to add an "as as” writing, durational term to the contract were it in properly long it cannot term is not sufficient because be said that the "as as” is oral. Manifestly, bargaining agreement if a collective provided that the members of a labor union would long Engler employed Governor, "as as” John Justice, or Michael F. is Chief Cavanagh reasonably durational term would be certain agreement enforceable.64 Such a durational 61 ii-f, part preceding Discussed in text n 34. 62 34-37, accompanying 44 and the text. See ns 588, 590, Caplis, supra, pp Productions, Douglas, King Supp Inc v See Don 742 F 1990). (SD NY, provided The contract it should run for three " period [Douglas plus champion years 'the entire world is] v Rowe Dissenting Opinion by Levin,

term would be less certain or less enforceable expressed orally. if it were

H emphasis concurring opinion The in the on the suggests recognition of a absence durational term that where there is a durationál ployee ordinarily term the em- discharged during

cannot be except duration of the contract for cause.65To hold employment otherwise would vitiate an for "as as the is able to do the work.” concurring opinion asserts that "it does not

follow that a to continue until cause existed for termination must be in "express job ferred” from an statement of secu sold.’,,66 rity,” long such as "for I 'as Toussaint this contradicts assertion. employment

Both of the contracts of considered long employee Toussaint were for "as as” the job. did the Toussaint held that the trier of fact may long on find the basis of an "as as I do the job” promise employment employment will continue until there is cause for termination.67 period years following [Douglas] two the date on which thereafter ” recognized champion.’ . . to be cease[s] so as world The type provides court held that the contract was of the upon event, termination specified or cancellation the occurrence aof and that it was enforceable. discharged Rowe does not claim that she could not be for cause. recognizes that, having signed Conduct, She the Rules of Personal she discharged ground could be all the reasonable on a there stated. She also conceded that grounds discharge providing under a contract only particularized. termination for cause need not be exception ordinarily An implied for cause would be in fact for the employer. however, may, benefit of the There be a case where it appropriate exception permitting would not be ployer to infer an the em- discharge to for cause other than that is no longer able to do the work. 66 Boyle, J., ante, p 664.

67This Court there said: 437 Mich Dissenting Opinion Levin, J. long Rowe’s contract of was an "as job” Ias do the Toussaint, contract. Under jury properly permitted could to find that her except not terminable for cause. concurring opinion appears The author of the ” acknowledge long that "for 'as as I sold’ is an "express job security.”68 Nevertheless, statement "employment is asserted that at will is the supplies by inferred term that the court construc- parties supplied tion” because "the have not again durational term.”69 It is relevant that "as long supplies as I sold” a durational term. "express job security, statement of for 'as ”

long gave express, Ias sold’ rise to an not an implied, employment. Putting contract of aside long whether "as as” constitutes a durational suggestion term, there is no in the cases discussed part promisor permitted ii-f70 that a would be promissory obligations terminate under an exclu- requirements, employment, distribution, sive or except other "as as” contract for failure of performance promisee. suggestion

There is no in the cases there dis- might properly cussed that a term be inferred permitting promisor renege such a will,” "at promisee predicate recovery, must, as a implied promise renege establish an "at Ebling inquired regarding job Both Toussaint and security they when would be testified would not were hired. Toussaint testified that he was told he company my job.” Ebling with the "as as I did "doing job” that he was told that if he was he discharged. testimony, Ebling’s, Toussaint’s like made agreement submissible to the jury whether there was an for a only contract of terminable for cause. [Tous- saint, supra, p Emphasis 597. added.] 68Boyle, J., ante, p (Emphasis original.) 664. in

69 Id. ff, accompanying See n 34 and the text. Dissenting Levin, contrary, renege-at-will

will.” if a On term implied, promise renege were or a not to at will predicate recovery, plaintiffs were a in all part the cases discussed in ii-f would have lost prevailing. instead of oxymoron

"Contract law” becomes another if a promisee predicate recovery must establish as promisor promised renege that the not to at will.

in concurring opinion per- The author of the analysis finds opinion suasive the of the lead on "the added.) (Emphasis threshold issue of intent.”71 A concurring opinion cites Professor Perritt’s promise” employ- statement "informal security seriously ment should not be "taken the law” unless the demonstrates parties "both meant for their deal to be en- concurring opinion suggests forced.”72The that the opinion adopted position stating lead has this promises recognized that oral will be where "cir- 71 Drawing Ebling, on the facts of Toussaint and the lead opinion sets forth a list of some of the circumstances that are determining assistance the threshold issue of intent. 4Among objective the circumstances identified as indications clarity, specificity, of oral ambiguity intent are the and lack of statements; specific negotiations whether there were

job security; position; whether, policy the nature of the if on, support they statements are relied undercut reasonable job security being belief that extended. J., ante, pp 663-664.]

[Boyle, 72Perritt, (2d Employee ed), 4.2, p Dismissal Law & Practice § part

Professor Perritt’s statement is discussed in iii-b. 437 Mich 627 Dissenting Opinion by Levin, J. parties both intended to be cumstances suggest added.) bound.”73 (Emphasis

The thesis adopted by doctrinal the majority appears seeking to be that enforce a contract of employment contrast with any —in person other who asserts that he entered into a person with another the burden of —has showing, with evidence other the prom- than usual actu- "manifestations,” issory that the employer ally intended bound. rule, general however, The by as stated Profes- Perillo, sors Calamari and is that "a party’s inten- tion will be held be what a reasonable man in position other party would conclude his manifestation to mean.”74

Professor Farnsworth wrote similarly that prevailing is view that the standard is objective and not subjective. "promisee” required to show that "promisor” made promissory statement agreement. "with the assenting intention to an party other had enough It is that reason to believe party first had that Farnsworth, Contracts, intention.”75 3.6, p 114. § (Emphasis added.)_ Boyle, J., ante, pp ante, 665-666; J., p Riley, See 636. (3d Perillo, ed), 2-2, p Calamari & Contracts § 75 Judge it, put objectivists . . Jerome Frank . "The transferred anti-subjectivist from the field of torts stubborn 'the rea ” According objectivists, party’s sonable man.’ to the mental necessary actions, assent was not to make a contract. If his judged by reasonableness, standard manifested an inten agree, unexpressed tion to the real but state his mind was analyst might it, irrelevant. As an from the field of torts view party had his fault induced the other to believe that there was a contract. By objective century, theory the end of the nineteenth generally had accept today. become ascendant courts True, party may liability by showing still avoid that he did engage not even to writing appeared intend to in the actions which he assent, example, falsely manifest his if he told that a legal compelled sign by had no effect or was such force that he was a “mere mechanical instrument.” But as engage actions, as he intended to in those there is no further v Rowe Dissenting Opinion Levin,

Professor Farnsworth continued: objective theory parties tends to hold the [T]he linguistic usage normal, to accepted that is a prov matter of fact that arguably falls within the jury.[76] ince of a signers

The of quote the lead with opinion ap- Goldman v proval from this opinion Court’s Century Co, Ins 354 Mich 93 535; 240 NW2d (1958).77 There, adopted this Court objective the standard for determining what constitutes a minds,” "meeting of the and rejected the subjec- tive approach.78 Speaking through Justice Talbot the Court said: Smith, requirement assenting that he must have done so with the of intention agreement. enough party to an It is the other party

had reason to believe that the ñrst had that intention. [Farnsworth, supra, pp Emphasis 113-114. added.] 76 added.) Id., p (Emphasis and Bernie Leon Goldman conducted a coal business in Detroit. A bins, damaged coalyard fences, gates, fire buildings or Goldman flammable the and and the roofs of out coalyard, damage one-story in the but there nowas the fire insurance to the two-story buildings policies. described The they everything brothers insisted that intended to insure premises. on the 78Professors Calamari and Perillo the summarized debate concern ing concerning tivists: minds,” "meeting particularly what a constitutes of the and differing approaches subjectivists objec of the and previous In the section is stated mutual assent is a

prerequisite years However, to the formation of the contract. over the raged parties a debate has as to whether the assent of the ’’meeting should be actual mental assent so that is there a of solely the minds” or whether assent should be determined from objective namely party says manifestations of a what intent — subjectively and does rather than he what intends or believes objective theory or assumes. Thus under the assent mental parties However, and intent of the is irrelevant. even under the objective theory manifesting the acts assent must be done intentionally negligently. century either For at least a objective theory of contracts has been dominant. portion objectivists objec- Another of the credo of the is that Mich Dissenting Levin, unexpressed of the that evidence also, agree, We thoughts understanding of the Goldmans intent. The Gold- their to establish inadmissible mans assert "shatters the whole that such denial ” 'meeting They read concept of the minds.’ aof do, say, To as we figure speech literally. too the that a contract "meeting of minds” requires must be there only figurative way saying objective This judge mutual we assent. standard, of the looking expressed words [Emphasis parties their visible acts. added.] concurring opinions signers of the lead and view, requir- adopted appear subjective have intended parties "both ing evidence em- bound,”79 "actual mental assent”80 the minds.”81 "meeting ployer, constitute party intent should be viewed tive manifestations position vantage point man in of a reasonable from party” position phrase party. "in the other the other means that knowledge The charged only party with the other is what he knows or reasonable man also with of a but 2-2, knowledge. [Id., superior . . . his § should know because of p Emphasis 26. added.] added.) 79 Riley, J., ante, (Emphasis p 636. 80 Perillo, n 78. See Calamari & just-cause deciding assent to a In whether there was mutual test, "looking expressed provision, objective to the use an we ante, J., [Riley, parties and their visible acts.” words Emphasis p 640. added.] short, objective their minds met on In exists that no evidence Emphasis [Id., p subject employment. 643. of continued added.] Upon viewing the if surrounding there was mutual assent ... to determine of this case circumstances permanent employ- provision on a for

ment, expressions of or if the statements were noncontractual long relationship,” hope oral "optimistic we find the of a agreement level of an to rise to the statements insufficient [Id., p Emphasis only providing just 643. cause. termination added.] Dissenting Levin, opinions, concurring requiring The lead and in "objective” "validations,”82 indications in have rejected, employment, truth for oral contracts of general party’s doctrine that "a intention will be held to be what a in reasonable man position party of the other would conclude his manifestation to mean.” majority, effect, announces new rule requiring something

law akin, corroboration or employer, acting through that an a subordinate Harryman,83 actually provide such as intended to job security.

B quotations The use of the from Professor Per- Employee ritt’s treatise on Dismissal Law and concurring opinion misleading.84 Practice in the [Tjhere parties is less chance that the desired or intended the where, here, prayed result are as conduct and oral statements job implied security claimed create a in fact. [Id., p Emphasis 644. added.] Consequently, we find no evidence from which reasonable minds could find there was mutual assent on a term of only [Id., p Emphasis terminable for cause. 646. added.] objective Id., lacking.” p objective find evidence 643. "[W]e "[N]o "[Objective support representations.” evidence Id. exists.” for the oral Id., p "[Objective support lacking.” Id. But, acknowledged Electric, Darlington v General Pa Super 200; (1986), quoted approval 504 A2d 306 with in the " ” concurring opinion, the 'sufficient additional consideration’ valida- "may nothing legal tion device more than .” fiction . . . 83Montgomery establish, did not assert seek or to at trial or appeal, Harryman authority on employment of promise that did not have to Rowe sell, as she was able to or to enter into a employment with her on that basis. 84 quoted, Boyle, J., ante, p The statement first that " ” 'employment-at-will policy judgment’ rule reflected a is footnoted with a to reference 4.12-4.17 of the work. §§ same Section 4.12 id., quoted concurring opinion, p contains the second statement in the Mich Dissenting Opinion Levin, J. little there is states that When Professor Perritt about valida- "forget[ting] cases for in the support enforc[ing] employer prom- devices tion [for] upon proof security merely of employment ises them,” referring is he that made employer should be promises Fried’s thesis Professor without, regard of fairness enforced on basis is whether there consideration.85 on, most appears

If one reads "[t]he some- is device consideration: common validation This be promise. may return for a thing given in It be promise may or it be conduct. may return exchange is in given any benefit or detriment & Perritt, Láw promise.” Employee Dismissal for a context, (2d ed), it is 4.12, 198. Read in p Practice § does Perritt’s statement manifest that Professor must be an support the notion that there minds. meeting of the actual on views clear

Professor Perritt’s true become reading following: some of consideration doctrine additional prom to the notion that

times has led erroneous supported its must be ise of own other tenure consideration, separate from consideration promises employment agreement.[86] in work, 197-198, pp the sole n 7 Perritt’s which is See of Professor Boyle’s quoted support statement Justice of second citation (enforcement (1981) Fried, p opinion, as Promise 39 666. "C. Contract fairness).” promises on the basis 86Perritt, id., 4.16, pp 207-208. § Professor Perritt continues: contrary: majority A of contract doctrine to the view " bargained may single 'A and undivided consideration agreed given equivalent or two as the one and promises promises.’ analytical many Thus is no there services, employee’s promise why or his

reason an render time, support may not of services over actual rendition (for example) pay particular wage employer’s promise both arbitrary and to refrain from dismissal.” Levin, J. Dissenting Opinion Perritt, Like the observations of Pro- Professor Epstein’s remarks, in fessor quoted a law review article concurring opinion,

in the are directed at a question presented. not here Epstein’s

Professor strictures are addressed to impose by operation those who would of law— judicial independently statute or of the gener- decision— agreement parties, just-cause term ally employment relationships, in with the result bargained employees that, not, whether for or generally rejected would have This tenure.87 Court approach such an in Valentine. Epstein’s reading

Professor are in views clarified following passage, majority which the should Thus, important recognize regarding it is the issue consideration in an is whether entire promises package party supported by made one is consid- supported by sep- eration. Each discrete need not be Emphasis arate consideration. [Id. added.] quoted This becomes clear if one in reads context the words from Epstein’s Professor article: normally The rule construction is chosen because it re practice given

flects the dominant in a class of cases and practice regarded making good because is itself sense governs. freely the standard transactions it is of It course by joint expression contrary waivable intention. When the just-cause requirement, law introduces a it flies in the face of ordinary understandings upon assumption and thus rests just-cause arrangements are in the broad run of cases frequent will, either more or desirable than the contract though neither is the case. of take Where this rule construction is used, therefore, contracting-out place will have in the very large parties number of cases where the desire to conform by entering Furthermore, to the norm into a will. contract at may requirement fact, be difficult to waive the in for-cause law, formally even if waiver is of after the fact. allowable as a matter of because high standards for that cannot “informed” waiver be met By original against degrees, presumption gain strength requirement contract at will so in that a could theory easily that fact. 947, waivable could become conclusive in [Epstein, will, In U defense the contract at 51 Chi L R (1984). Emphasis 951-952 added.] 437 Mich Dissenting Opinion Levin, presented assessing in Du- the issues consider mas. with modern em- problems can exist same put Suppose has

ployment contracts. that worker large for firm a contract in the effort to obtain the paid If the firm which he is to be a commission. on dismisses him under at-will before for- the commission is sale mally consummated and due, (rightly) a term imply most courts will gives employee good of faith that the commis- done, agreement for work unless sion explicitly Thus in v provides otherwise. Coleman (CA 5, Co, F2d Graybar Inc Electric [195 1952)], plaintiff’s compensation claim paid part upon rested in that were commissions previ- annually upon sales record in the based period. court the contract ous The construed in preclude the at-will norm: "We conclude this case not authorize the forfei- the contract did provided in the compensation ture of additional the em- plan compensation if the services of arbitrarily without ployee were terminated [Epstein, In just cause.” defense the contract will, (1984).] 51 U L R Chi

IV Although majority "objective” evi- calls for corroborating Montgomery actual dence Ward’s provide job security, it trivializes that intention to focusing inconsequential distinctions, on search Montgomery urged by Ward, said to counsel distinguish but the instant case from Toussaint may which, importance, case, be of little no another the record will show that the because inquire in,” did not "stumble and did job security. about Montgomery Dissenting Opinion Levin, J.

A signers opinion The the lead state that Rowe engage preemployment negotiations "did not regarding security. simply She into the 'stumbled’ day being store one and had one interview before any suggesting testimony hired. Nor is there plaintiff inquired job security.”88 about analysis opinion suggests if,

The of the lead "stumbling” day, instead of into one the store help-wanted Rowe had answered advertisement running, Ward was thén or if she had "inquired” job security, about a different result might justified. be record, indeed, does indicate how the

subject job security during preemploy- arose subject ment interview. But somehow or other the up. Harryman came When was asked whether he had informed Rowe the "reasons for which she may Harryman terminated,” testified, "[t]heft you obviously, something or, know, murder, or like any properties, company that; theft of so on.” or signed Also, Conduct, Rowe the Rules Personal grounds discharge. which enumerated provides prop- Since the record least issue erly jury regarding submissible to the whether Harryman job security, Rowe and it discussed any importance should be of whether Rowe "inquired” job security Harryman about before brought up policy and described the current as he it.89 understood

B "inquired” job Yet, if even Rowe had about 88Riley, J., ante, p 643. only concerning "company policy” The record evidence was

Harryman’s testimony, tending support to Rowe’s assertion that she promised sold, job was the that she would have a as she "that’s way people.” we used to hire our Mich Levin, Dissenting Opinion satisfy majority. security, With the that would not opin- signers analysis, the lead still another supra, plaintiff Toussaint, ion that in observe "singular, job applying executive for a was position[ depart- many one ],” while Rowe "was salespersons.” opinion observes The lead mental application of "several Rowe’s was one that identical stance positions” circum- reasons that this and against that "militates likelihood negotiable suggests that terms contract company were policy likely govern.”90 to was more not, however, indicate that The record does policy” contrary "company to Rowe’s was a there testimony. Harryman’s manager discharged testified that who Rowe rely, she have at the time was she would had Harryman hired, told what on what her and provided. Rules of Personal Conduct opinion state describe the The lead does not opinion. "company policy” Thus, into adverted assessing, fact, "likeli- as trier of addition negotiable,” the contract terms were hood likely finding "company policy more and to appears govern,” opinion hypothe- lead support, posit, record an unstated size or and ther Rowe nor reflected without policy” "company nei- undescribed that was Harryman’s consistent statements with Con- in the Rules Personal duct.

c opinion "[ujnlike Toussaint, The lead states negotia- plaintiff engage preemployment did not regarding security.”91 tions appeals in dealt the consolidated

Toussaint with 90Riley, J., p ante, 91 Id. v Rowe Dissenting Opinion Levin, against

Charles Toussaint’s action Blue Cross & Michigan, Ebling’s Blue Shield of and Walter ac- against Corporation. tion Masco Both Toussaint Ebling employed middle-management were positions.

Ebling directly dealt with the executive vice president specifically Masco, and did indeed "negotiate” job security. opinion The Toussaint negoti- not, however, does indicate that Toussaint job security any ated for more than did Rowe.92An officer bcbsm advised Toussaint of the current policy.

Ebling distinguishable regard is in this from may Rowe, but Toussaint not. Toussaint have higher been level Rowe, than but nothing suggests in the Toussaint record terms any Toussaint’s with bcbsm were negotiable more than the terms Rowe’s employment. distinguish

The effort to Toussaint on the basis negotiations job security does bear analysis insofar as the case of Charles Toussaint is concerned.

v concurring opinion adverts to "the circum- objective stances identified as indications of in- opinion. tent”93 said be set forth in the I lead any provide "objec- fail to see how tive indications” of an of these criteria

employer’s actual intent relinquish "managerial employee discharge discretion” to may,

at will. Be that the "circum- acknowledge Toussaint, opinion supra, p 612, 92 I states Ebling "negotiated specifically regarding job that rity and Toussaint secu persons with the who interviewed and hired them.” It would have precise Ebling "negotiated” been more to have said and Toussaint "inquired” job security. about 93Boyle, J., ante, p n 4. 627 Mich Dissenting Opinion Levin, J. in- 'indications of objective as

stances identified viewed —to subjectively or objectively tent” tend — support Rowe.94

VI concurring postulates opinion The author rule of still another construction: considering consti whether statement [W]hen offer, in of con

tutes tracts, the context commercial nonpromis a statement as courts construe 94Clarity, specificity, ambiguity The and of of oral statements. lack sold, job Montgomery long I I would statement "as as have clear, terse, specific, unambiguous. surely is As in Ward” but 34), Caplis, "plain p (part preceding, ii-f, supra, the oral terms were n contingent That certain determinative duration. terms of but added.) (Emphasis in law can be made certain.” which "selling.” Harryman He testified he described what constituted expected generate roughly persons generally said that sales were $2,000 "selling” Clearly, question more in sales. what constituted week or clear, specific, large. left at The was was not contract unambiguous "selling.” as insofar what constituted clarity specificity ambiguity or Nor was there or an absence of Harryman’s regarding spelling grounds In for termination. addition expected selling performance of suffi- out the work Rowe— weekly Rules of her draw—the Personal cient merchandise make Conduct immediately provided that dismissed for she would "[t]heft, misappropriation property, of [violation or of [destruction standards, altering accepted pany [mjanipulating, falsifying or Com- moral (including application), [dishonesty employment of records any kind.” thus, were, The of clear and terms of ambiguity. specific, was no and there specifíc negotiations security. or job While the Whether there were Harryman it was who not indicate whether Rowe record does brought up job security, question security question job of subject writing, Rules of Personal and the of a was discussed signed by Conduct Rowe. on, Whether, they support policy relied or under- if statements are security being promise job cut a reasonable belief that a extended. The Rules of Personal Conduct spoke signed Rowe (emphasis "[gjrowth, [pjrofit, [s]ecurity,” and career” "Successful added) dishonesty could and other result and stated theft re- Conduct tended to immediate dismissal. inforce Rules Personal security. job the oral Rowe v Dissenting Levin, sory if expose it would the maker to the risk of

being perform bound to beyond perfo his means to rm.[95] [Emphasis added.] suggests providing job security This salespersons they commissioned might for as sell beyond Montgom- been have the means of ery nothing sup- Ward. There is in the record port finding, such a and under the circumstance salespersons paid only that commissioned are they unlikely sell, when it is that this rule application any construction has on this record. especially noteworthy In connection, this are the Supreme decisions of the Courts of Texas and Appeal,96 California, and of the Louisiana Court of because in each of those cases the contracts —to provide pest selling water, control, anor exclusive agency proved during long to be onerous their — terms. contracting party not, The courts however, did relieve the long promise.

of the "as as” Again, nothing suggest however, there is employing straight Rowe, basis, on commission might economically as she sold dis- advantageous Montgomery Ward.

VII part The "issue” dealt with in n of the lead opinion argued was not briefed Rowe, properly hence cannot be decided at this time. pending

This issue is addressed in two cases applications by employers this Court on for leave appeal, Henry Montgomery Ward, v Docket No. Docket No. Schippers Corp, 90134, and v SPX 90702.

95 Boyle, J., p 667. ante, 50, 45, See ns and 53. 437 Mich Dissenting Opinion Levin,

A opinion ii of the lead part paragraph first reads: employer’s oral state

Having that the concluded did "Rules of Personal Conduct” ments and the employment, we permanent contracts form guide disciplinary whether must next decide lines gave rise an promulgated by defendant providing only termination employment contract concurrently issued just cause where defendant sign-off containing employment-at-will an sheets maintain an plaintiff cannot policy. We ñnd on the of contract basis action for breach handbook guidelines last disciplinary because employment-at-will clearly set forth plaintiff received which [Emphasis policy.[ added.] The "last handbook” issued of Personal the Rules argued

While Rowe August, Conduct, signed in when which she hired, express contract part of her she was were expecta- to reasonable gave rise cause, did not only for she tions of termination in the 1983 set forth procedure assert that sign-off sheet which she or handbook —the manual implied promise rise an sign gave did not — not for Rowe did assert termination cause. only could, opinion, lead in the words of the she on the for of contract "maintain an action breach in set forth disciplinary guidelines” basis of the 1983 handbook.

B the 1983 rights not under brief did claim Rowe’s 97Riley, J., p 646. ante, Dissenting Opinion by Levin, not handbook,98

manual or but rather on binding During her.99 oral argument, Rowe rights While Rowe’s not brief did claim under the 1983 manual or handbook, provided she separate did assert that the 1982 handbook "objective expectancy for basis her that she would not be terminated except for cause”: It is Plaintiff’s contention that the 1982 handbook ais policy reiteration of the "for cause” first established Mr.

Harryman’s personal statement and the 1976 rules of conduct. separate This means that there are three bases for Ms. Rowe’s objective expectancy except that she would not be terminated cause, i.e., statements, for the oral the 1976 Personal Rules of (Exhibit 2), (Exhibit 10). Conduct 1982 handbook provided The mere assertion that the 1982 handbook one of three separate ing "objective expectancy” any bases for Rowe’s support- without argument advocacy or whatsoever did not raise the issue dealt ii, part provide with in appropriate not does basis for a pronouncement by pending this separate Court on an issue in a application appeal for adversary leave in this Court where there briefing. require The court rules ques- that a brief contain a "statement of 7.306(A). 7.212(C); tions application . . involved . .” MCR MCR Neither Rowe’s appeal appeal leave nor her brief on in this Court question (MCR presented stated as a 7.302[A][l][b]) for review or jury’s involved whether the verdict her favor could be sustained solely on the basis of the 1982 handbook. It is well ordinarily established that this will Court not review questions presented separately questions stated in the statement appeal granted review where leave to has been in the questions Callaghan’s Michigan statement of ing involved. See 7A Plead- (2d ed), 57.24, p & Practice § readily published Plaintiff admits that Defendant new hand books in 1983. She denies that it was intended that she be bound specifically the new terms addressed to employees.” jury "new defendant The was shown 1983 handbook and argued language that the "at will” contained therein apply employees, including was to Appeals App 612; addressed the In to all Plaintiff. The Court of Langeland Hosp, v Bronson Methodist 178 Mich [1989], (1989), 444 NW2d 146 lv den 433 Mich [915] conflicting language policy issue in a manual. Langeland, supra, the manual contained both "at-will” and "just Court, language. citing cause” Dalton v Herbruck Egg Corp, 543; (1987) App Sales 164 Mich 417 NW2d 496 stated question jury policies exists when the stated termination employer expressions of an cause” "just contain of both "at-will” and employment. decisions, Appeals Langeland While Rowe did refer to Court of and 437 627 718 Mich Dissenting Opinion Levin, oral of both the position that as a result her stated under leg creating express-contract assurances Toussaint, result of Rules of Personal and as a in Tous- Conduct, ruling in light of this Court’s cases, raised saint question was subsequent The refer- jury. presentation sufficient course,. Conduct, of of ence to Rules Personal in signed Rules of Personal Conduct to the adverts hand- 1982 or 1983 manuals or and not the books. Appeals opinions appears

It from Court Methodist Langeland v Bronson issue, in on this (1989), 612; 444 146 Hosp, App 178 NW2d Mich Egg Corp, App 164 Mich Dalton v Herbruck Sales Henry, supra, (1987), 543; 417 496 NW2d free from Schippers, supra, that the issue is not doubt.100

c 178, 181; 242 NW Keasey Engles, v Mich In 259 (1932), 878 this Court said:_

Dalton, part opinion, in n of the lead that the issue dealt with address seeking predicate foregoing that Rowe was not it is clear from the handbook, right manual but recovery the basis the 1983 a rather stated or handbook on finding that the 1983 manual an alternative reason for apply did to her. that, language assuming in the "at-will” she Rowe’s brief also asserted denied, her, applied to 1983 handbook which the Ward "attempted provide notice of its did not her with reasonable argument prompted change policy.” This to an 'at-will’ unilateral Question, Bankey v In re Storer this Court’s Certified decision 438; (1989), Co, Broadcasting after decided 432 Mich 443 NW2d Appeals instant in the the decision the Court case. Question, this Court said Rowe observed that Certiñed " change given uniformly notice of the must 'reasonable apparent employees.’” Rowe It is was concerned affected Question, might concept forth in set Certiñed this Court extend manual, change policy permitting to a unilateral unilateral express change of an contract. Casino, 81; Claridge Super Hotel & NJ See Preston v (1989), facts, where, in a court found a disclaimer A2d 12 on v to be See McDonald handbook ineffective. also revised 1990). Inc, (Wyo, Producing, 789 P2d 866 Mobil Coal v Rowe 719 Dissenting Cavanagh, C.J. upon expression Plaintiff relies in Car Carmichael,

michael v 72 Mich 76 NW 173 [40 (1888)], to the effect that beneficiaries under con proper parties tract a will were plaintiff, make parties having "as vested in this interest real estate under the of contract their father and question vesting mother.” The of was not raised in case, expression the given and the be cannot of authority [Emphasis force thereon. added.][101] Cavanagh, C.J. I am in (dissenting). substantial .agreement with the analysis of Brother my dissenting Levin’s with opinion, exception of ii(e) parts vn, ante, and pp 693-694, 715-719. Justice Levin persuasively why demonstrates majority’s analysis is simply erroneous with regard law, to the and constitutes a virtual over- ruling of Toussaint v Blue Cross & Blue Shield of (1980). Michigan, 579; 408 Mich 880 I NW2d add only following observations:

First, Levin, iv(c), my ante, Brother part pp 712-713, demonstrates why majority’s reliance on the fact that did Rowe not "negoti- specifically job security, ante, pp ate” 641-642, see fails 456, 461-462; Duffy, (1956), In vHett 346 Mich 78 NW2d 284 this Court said: plaintiff question It is true that has not raised the here cross-appealed. circumstances, anything and has not this Under the might say question presump- Court now on the of law to controlling

tion of due care would not of decision. On the contrary, guilty plaintiff’s our conclusion here that decedent was contributory negligence aas matter of law controls outcome, any presumption discussion of the issue merely due care would be obiter dicta. opinion concerning "Statements and comments in an some legal proposition necessarily rule lawof or not involved nor hand, are, essential determination the case in however illuminating, adjudica- but obiter dicta and lack the force of an People (syllabus), tion.” v Case 220 Mich 379 NW 289 [190 (1922)]. See, also, Co, Robinson v Gordon Oil 266 Mich 71 [253 (1934)]. [Emphasis NW 218 added.] 437 Mich Dissenting Opinion Cavanagh, C.J. distinguish adequately from Toussaint. case this point go however, further, out I would explain why convincingly majority fails to "negotiation” even relevant. or the lack of is regarding the terms of Rowe’s issue The relevant including employment the dura- oral contract — any job security terms term, if what or tional —is they agreed to, how whether were fact reasoning sug- "negotiated.” majority’s were incapable gests company legally offer- that a ing just-cause an oral

prospective employee standardized, "take-it- on a job offering such contractual Yet or-leave-it” basis. security routine, even a matter standard as "negotiation” inquiry prompting or without applicant, an attractive would seem to be from seeking employ- company "selling point” any for company likely in to aid the ees, and seem would majori- keeping good employees. finding The and logical ty’s reasoning, limit, would carried its reap offering permit companies the benefits of to job holding security, without contractual such promises. nor This is neither fair to their them principles. by any accepted countenanced my Second, that demonstrates Brother Levin majority Rowe’s confuses the issue whether express supported by state- is contractual claim separate her claim with the issue whether ments policy supported by employer’s written state- is pp (part that, ments, ante, and see 678-682 i[b]), express support” "objective for oral extent sup- relevant, factors such contract port in this case v). agree (part pp I Rowe, ante, see 713-714 majority’s newly point out and would support” "objective requirement invented policy express from manuals oral contract such plainly p 644, ante, and statements, alters or misapplies see reasoning holding this Court’s and Dissenting Opinion Cavanagh, C.J. companion Ebling. case, Toussaint and its While it majority true, notes, is given as the that "Toussaint was specifically providing a manual termination p only just rely cause,” ante, we did not on policy support manual in Toussaint just-cause existence oral Toussaint’s contract. policy only The manual was relevant to Tous- separate saint’s claim that his dismissal without by "legitimate expectations” cause was barred created (holding the manual. See 408 Mich 598-599 Ebling,

that "[i]n Toussaint, as in there express agreement was sufficient evidence of an justify jury,” separately submission to the holding jury that "[a] could also find for Toussaint legitimate expectations grounded on based in his statements”) employer’s added). policy (emphasis written majority ignores the fact Ebling policy providing any there was no manual "objective support,” only but oral statements es- tablishing just-cause an oral contract. See id. at (opinion joined by 625-626 Ryan, J., Coleman, J.). C.J., Court, this Fitzgerald, Yet while dividing four to favor, three in Toussaint’s held unanimously Ebling produced had sufficient just-cause justify evidence submission to the an oral contract "to jury.” (opinion Id. at 598 of the Court), (opinion joined and at 633-636 Ryan, J., of J.). by Coleman, C.J., and Fitzgerald, Finally, majority I would note that in this despite effectively upon case, disclaimers, its takes jury generally, itself the role See, of and factfinder. pp majority quite ante, 640-646. The makes clear sitting jury that, were it case, as the in this just-cause would not be convinced that a contract employment was entered into. It is well estab- fifty-year-old lished, however, line of control- (unbroken now) ling precedents until that whether parties by express have, two statements, oral en- 722 437 Mich 627 Dissenting Opinion Cavanagh, C.J. providing just-cause

tered into a contract em- is, question of fact for the ployment ultimately, Co, 301 McIntyre Smith-Bridgman v & jury. See (1942); Toussaint, 629, 637; Mich 4 NW2d 36 Court), (opinion Mich 613 and at 635 (opin- Ryan, J., Coleman, C.J., ion of joined by and J.); Bullock v Automobile Fitzgerald, Club Michigan, 432 Mich 472, 484-485; NW2d (1989). It is well equally jury’s established determination of factual issues should not be dis- unless, considering light turbed the record in the there is no compe- verdict, most favorable to the tent or sufficient evidence from which reasonable Kup- jury’s minds could reach the conclusion. See Inc, Ford, kowski v Avis 167-168; 395 Mich State, Dodd Secretary v (1975); NW2d 324 (1973). 606, 612; 390 Mich 213 NW2d 109 The majority has not demonstrated how the oral just-cause this case— which clearly sufficient factual enjoys support justify jury’s precluded verdict —is barred or by any supervening principles law, of contract case, properly This analyzed. all relevant dispositive purposes, legally indis- factually Toussaint. tinguishable from I therefore dissent from the majority’s overturning jury’s ver- dict.

Mallett, J., part took no in the decision this case.

Case Details

Case Name: Rowe v. Montgomery Ward & Co.

Court Name: Michigan Supreme Court

Date Published: Aug 2, 1991

Citation: 473 N.W.2d 268

Docket Number: 84848, (Calendar No. 3)

Court Abbreviation: Mich.