Gollberg v. Bramson Publishing Co.

685 F.2d 218
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 16, 1982
DocketNo. 81-1727
StatusPublished
Cited by1 cases

This text of 685 F.2d 218 (Gollberg v. Bramson Publishing Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gollberg v. Bramson Publishing Co., 685 F.2d 218 (7th Cir. 1982).

Opinion

MARKEY, Chief Judge.

Appeal from a final judgment for Gollberg and against Bramson Publishing Company (Bramson) in an action for breach of employment contract. We reverse.

BACKGROUND

On January 3, 1978, Bramson, publisher of a monthly business publication, hired Gollberg as an advertising space sales representative pursuant to a written contract of employment signed in Bloomfield Hills, Michigan. Paragraph 2 of that contract states:

2. The terms of this agreement shall be from January 3, 1978, for a period of one year, and shall continue from year to year, thereafter, unless terminated pursuant to paragraph 8, infra.

Paragraph 8 states:

8. This agreement shall be terminable immediately upon the date of mailing of written notice by either party to the other, addressed by registered mail, return receipt requested, to the last known business address of the respective parties, or upon the death of Sales Representative.

Approximately six months later, on June 16, 1978, Bramson notified Gollberg verbally, and then on June 19, 1978 in writing, that his employment with the company was terminated.

On June 23, 1978, Gollberg wrote Bramson, requesting that no withholding tax be taken from his final cheek and stating:

As we discussed today by phone, I would like to amend our contract dated January 3, 1978, to permit my termination to be effective immediately, provided separation compensation in the amount of $4,833.33 (less any costs for insurance) is paid to me. This favor by you is really appreciated.

On March 27, 1979, Gollberg brought a breach of contract action against Bramson in the district court for the Northern District of Illinois, asserting that Bramson had no right under the employment contract to terminate his employment in June of 1978. Gollberg maintained that the first phrase of paragraph 2 of the contract — “The terms of this agreement shall be from January 3, 1978, for a period of one year,” — was not modified by the “unless terminated” language of the last phrase of paragraph 2 and was a guarantee of employment with Bramson for one year.

Bramson moved for summary judgment on the grounds that no material issue of fact was in dispute and that Brekken v. Reader’s Digest Special Products, Inc., 353 F.2d 505 (7th Cir. 1965), was controlling. In Brekken, this court construed an employment contract containing nearly identical clauses as “terminable at will” and affirmed summary judgment on similar facts. Id. at 506.

The pertinent paragraphs from the contract in Brekken are:

This agreement shall be effective from the date of execution and shall remain in effect for a period of twelve months and will be automatically renewed for twelvemonth terms unless sooner terminated.
This agreement may be terminated by either party upon written notice or by Manager’s death.

Id.

A district court judge denied Bramson’s motion, finding:

the provision in question subject to two reasonable interpretations, and ... ambiguous. Extrinsic evidence may properly be considered to determine the meaning the parties intended at the time of the contract. Burland, Reiss, Murphy & Mosher, Inc. v. Schmidt, 78 Mich.App. 670, 261 N.W.2d 540 (1977). Since disputed issues of fact exist as to this intended meaning, defendant’s motion shall be, [226]*226and the same hereby is, denied. Lucie v. Kleen-Leen, Inc., 499 F.2d 220 (1977).

The judge who denied Bramson’s motion recused himself, the case was reassigned, and a trial ensued. At the close of Gollberg’s evidence, Bramson moved for a verdict pursuant to Fed.R.Civ.P. 41(b),1 arguing that “the evidence has established in any light that the contract by its very terms was terminable at will” and “that there was no expression of any contrary intent by the testimony of Mr. Gollberg as to the termination provision.” The district court denied the motion, finding that there was “relevant evidence sufficient to present a prima facie case on the issue of liability and damages.”

At the end of trial, the judge entered findings of fact and conclusions of law. Making no findings related to evidence of intent concerning terminability, the judge concluded as a matter of law “[t]hat the employment in this cause was for an initial one-year period and was thereafter terminable at will,” and that Gollberg was terminated in violation of the contract. Judgment was entered for Gollberg in the amount of $19,950.43 plus interest from December 15, 1978 and costs of suit.

ISSUE

Did the district court err, as a matter of law, in concluding after trial that Gollberg’s employment was for an initial one-year period and was only thereafter terminable at will?

OPINION

The first district court judge allowed the case to go to trial,2 for reception of extrinsic evidence “to determine the meaning the parties intended at the time of the contract.” We have carefully reviewed the trial transcript and have determined, first, that the relevant testimony contains no inconsistency regarding the intent of the parties on terminability of the contract. There were only two witnesses at trial, Gollberg and Thomas R. Bramson (T. R. Bramson), Bramson’s president. Both testified that Gollberg expressed no intent respecting terminability, at least at any time before being notified of his termination.3 Letters in evidence from Gollberg to Bramson after that notification make no mention of any intent respecting terminability.

Absent an expressed intent, and where, as here, there were no negotiations respecting terminability, a court should look within the four corners of the contract, and to the facts and circumstances surrounding the making, performing, and terminating of the contract, including actions of the parties and the prevailing practice, if any, in the [227]*227industry. Henry v. J. B. Publishing Co., 54 Mich.App. 409, 221 N.W.2d 174 (1974); Michigan Crown Fender Co. v. Welch, 211 Mich. 148, 178 N.W. 684 (1920).

Taking the last first, the uncontradicted testimony of T. R. Bramson established that there was and is an industry-wide policy under which publishers’ employment of advertising space sales representatives is on a “terminable at will” basis.4 Gollberg produced no evidence tending to refute existence of the industry policy. He merely attempts by argument to moderate the effect of Bramson’s evidence, noting that Bramson’s president was unable to recall having seen an employment contract with language identical to that of paragraph 2.5 Existence of an industry policy does not, however, require that its expression be in identical language in all contracts.

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Bluebook (online)
685 F.2d 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gollberg-v-bramson-publishing-co-ca7-1982.