*1 DUFFY, Before SCHNACKENBERG ENOCH, Judges. Circuit ENOCH, Judge. Circuit This case is the second time. here brought

Plaintiff, Haag, suit Vernon L. originally (subsequent- state court ly the cause was to the U. removed S. damages Court) District to recover aris- ing defendant, out of the refusal Telephone Telegraph International Corporation, attempted to honor his ex- option. ercise a stock District granted summary judgment Court for de- ap- fendant and has this taken peal. August 11, 1957, On or about defend- engaged plaintiff ant had ployee. 11, 1957, On gave plaintiff buy Schnackenberg, Judge, ant Circuit dis- cer- “only tain shares its common stock sented. years Optionee’s after two of the employment corporation tinued with the one its subsidiaries.” suit, plaintiff In his initial contended defendant’s determination plaintiff’s employment before terminated passage years necessary of the two failed to consider an oral con- tract of for a of 90 days, made on or about June opinion In this Court’s on the appeal, No. filed November (p. 208): we stated however, agree do, with the “We if, fact, on and a con- after June he had with the de- fixed definite term fendant for a *2 567 plaintiff s day period that ninety It was not contested embracing . the hiring Plaintiff as- 1959, at will. 20, was ending as he September change did, his that a in alleges and if serted claims he and meeting L. 1959, 28, with Delbert discharge July occurred at was on his Mills, vice-president of pur- one just executive and the cause without Clifton, attaining New at depriving defendant’s divisions pose him of agreed Jersey, 22, pur- right on 1959. He June his stock the exercise prior his from option, that he was then removed liable chase defendant the Wayne assignment damages may Fort at defendant’s have been for such location, could thereby.” so that someone else take occasioned job. in- that said that over He he the United remanded to The cause was assignment placed special stead on was tried District Court where States days permit 90 him to which would plain- jury. for the found to a complete years’ employment nec- the two following “yes” the tiff and answered essary option. his stock exercise He interrogatory: special arrangement that was such states “QUESTION: position Did the if he found he was another Haag, leave; de- and free to it was at his Interna- fendant whether not to remain defend- Telephone employ days, tional ant’s 90 the whole Telegraph, on and but that defendant was bound. Plaintiff 1959, 22, en- June testified that did him Mr. Mills not ask capacity into oral ter hold himself available in employ- after June but that he himself fixed and for a stated that would he be available. em- term definite He testified that defendant had bracing ninety- telephone home and address number ending day period that he could be from reached there. 20, Nobody “spe- described the duties assignment” plaintiff cial 1959?” to him and special never asked Mr. Mills what for a di- motions had filed Defendant assignment was, reported or ever to Mr. close rected verdict special assignment Mills on this after evi- close all the evidence and at the meeting 22, the aforesaid June dence, asserting the evidence meeting Plaintiff also testified that at the law to estab- as a matter of insufficient 22, on June Mr. Mills told contract lish that had a looking start for other im- ployment term. for a fixed mediately. ruling Judge his The District reserved following good motions, cleaning on his at Fort these out desk After by practice Wayne 1959, plaintiff this Court on June never recommended Indemnity Co., 1959, performed Reitan v. Travelers services defendant and, knowledge, back 267 F.2d 68. Pursuant to the de- to his never went motion, premises except District Court set when fendant’s the defendant’s jury’s attempted option. aside and entered his stock he exercise notwithstanding judgment for It was was to be defendant understood he verdict, District Court allowed to as much time as he which the devote employ- clearly against greater found to wished to his for new be search weight of and not such as the evidence ment. Plaintiff testified further that he might reasonably have been reached. employ- shortly thereafter new seek ment, travelling extensively throughout Judge for The District reason through July June, the United States granted (conditionally) also August, ant’s motion for a new trial. witnesses, Mr. Mills drawn in his Wiscon-

The defendant's inference behalf. vice-president, Liquor Robert Cha- sin Co. Park & Tilford Dis- and another meeting they sen, Corp., Cir., 1959, tillers 267 F.2d testified that at the he had with responsibility of all but that was relieved Judge that: The District concluded agreed pay- keep him Mi*.Mills on the “[T]he evidence adduced *3 days period roll for a not to exceed 90 cause, trial of this when in viewed sought employment; while he other that light plaintiff, the most favorable assignment,” “special no there was phrase that is such that could reasonable men being only im- used to create the not differ as to the conclusions to be pression plaintiff currently that was drawn therefrom. was The burden ployed for its on effect ef- upon plaintiff the in this action employment. forts to secure new Plain- prove the existence of the essential deny explanation tiff did not that this employ- of elements of a contract given him, was but he testified that ment for a fixed and definite term of being did not its recall said. ninety days. The Court concludes Plaintiff testified that was no there that the evidence adduced on the option meeting mention part plaintiff fails to establish the elements essential to formation July 28, 1959, plaintiff contract; hence, Under date of such the ver- reading dict of received a letter from Mr. Mills cannot stand. as follows: elementary “It contract law Yernon, Supplementing “Dear that our there must be an and an offer previous acceptance oral discussion it has been thereof in order to con- your employ- decided stitute contract. terminate The evidence immediately today, July any

ment 28, herein fails by as of to show such offer instructing plaintiff, 1959. We are defendant to Mr. and with- $5,462, Brunton to out an accept- issue a check for offer there can be no by necessary withholding, reduced ance. The conversation of June lump payment plaintiff as a final sum 1959 repre- between separation you defendant, during allowance. sentatives of Since are eligible your not which his terminated, exercise stock you please per- would plaintiff return indicates that papers your willingness tinent stated his me at earliest to remain very available, request- convenience. but With best he was not wishes so your activities, by very truly ed not, future defendant. He could yours therefore, accept an offer which was —” by never made to him defendant. replied he which that he had contin- any Nor is there other in evidence uously remained available to the com- the record which support could pany employee as an and would remain existence of accept- an offer and September 21, until available 1959. He ance thereof. any accept employ- not in fact other « n * * « * * during period. 90-day alleged applied contract “The terms of the The District Court the stand indefinite, question vague, in so ards of are Shaw v. Edward Hines Lumber Co., Cir., 1957, con- and uncertain a strained F.2d 7 249 meager Tibbits, Cir., Lambie struction evidence 7 point ruling on would be re- adduced this that in a motion meaning. give any judgment notwithstanding quired them the verdict Indeed, after an examination (cid:127)the evidence must be considered in the testimony light it would most favorable to the with imagination to ascertain all take a vivid conflicts resolved in his favor and every possible legitimate dis- at all there were terms conclusion or time the could been cussed not have enforced t lacking against in tract timony into His came existence. tes- him and was Consequently, mutuality. he can- reveals that so-called assignment” "special against was never re- not enforce understanding added.) (Italics duced to ant.’” mentioned, —his duties never were fact, Plaintiff contends that the mere ‘special nor was the assignment’ nature admitted, Mills which Mr. had he Yet, ever determined. place no did tell him there he contends because organization does not stated able’, he ‘would remain avail- might not mean that have the defendant thereby his duties were im- during need services pliedly shown that this consti- change top critical of a tutes a sufficient definiteness management. However, as District *4 satisfy terms to the contract re- noted, according Court own quirement. While a contract to con- testimony, plaintiff was to leave free existing employment tinue an rela- any at time whether defendant needed tionship require would not the same him or could not not. Defendant have degree certainty of as a con- new required plaintiff an em- to remain as strangers, tract between ployee. ‘special continuation here was on agree with the District We assignment’ any unrelated to activ- Judge employ of that no valid contract ity employer of either for of a fixed and term definite ployee. ninety days came into between existence ****** 22,1959, defendant “Finally, jury the verdict of the jury prop and that of the verdict must be set aside the further erly set aside. completely reason that the evidence respect With assertion fails mutuality to establish the interroga- that defendant answered necessary which is also to the estab tory improperly and thus evi- concealed lishment of a valid contract of em dence, Court, believe, Trial we ployment. In Meadows v. Radio In interrogatory susceptible dustries, (7th 222 F.2d 347 Cir. meanings in- two and that defendant’s 1955), by plaintiff an action though terpretation, plaintiff, not that of employment contract, breach was nevertheless reasonable. trial court directed a verdict for judgment District Court judgment defendant and entered is against affirmed. plaintiff. affirming In court, the decision of the trial Affirmed. Court of for- the Seventh Circuit, Judge Lindley speaking, Judge SCHNACKENBERG, Circuit said, p. 348: (dissenting). “ present case, ‘In the court, prior appeal a care- In the before this ful examination of the (1) record dis- a we held that if closes that there employment was not with defendant slightest embracing bit of evidence a fixed and definite term agreed ninety-day ending ever that he would continue discharge in the (2) if was with- his any specified just defendant for purpose time. out and for cause right words, In depriving right other he had a him of to exercise terminate purchase option, his his stock defendant promise per- damages time and (stipulated did not would be liable length $34,000) thereby. to be occasioned form for Therefore, time. the contract 208. At we held question pre- first under the law the genuine sented of material fact. a issue remand, jury, by special

On inter- rogatory, question determined plaintiff, favor of returned $34,000. The determination of of fact the issues was for the and the court below jury’s province invaded the exclusive questions. factual decide the The evi- dence not does warrant such invasion. Taking light in the most evidence favorable obvious sought deprive plaintiff defendant very purchase option stock lucrative shortly right before his thereto was to mature.

I would remand this case the district court with directions that it vacate its granting order defendant’s motion for judgment notwithstanding *5 verdict, reinstate the verdict of the in favor judgment and enter thereon. CONNOLLY, Bernice K. as the Adminis- trator of the Estate of Robert F. Con- nolly, deceased, Plaintiff-Appellee, WABASH COMPANY, RAILROAD a Weiland, Close, Charles H. corporation, Missouri Gordon R. Defendant- Appellant. Chicago, 111., Lord, Brook, Bissell & Chicago, 111., counsel, appellant. No. Joseph McGuire, Chicago, 111., T. Fran-

United States Court of Boyle, Perz, Chicago, 111., cis A. Frank M. Seventh Circuit. counsel, appellee. March DUFFY, Before SCHNACKENBERG Rehearing April 5, Denied CASTLE, Judges. Circuit Judge. SCHNACKENBERG, Circuit Company, Wabash Missouri Railroad corporation, defendant, appeals from three orders of the district court entered Connolly, in favor of Bernice K. adminis- Connolly, trator of the estate of Robert F. overruling deceased, (1) to wit: order defendant’s motion for directed