Rowe v. Montgomery Ward & Co.

Levin, J.

(dissenting).

The lead and concurring opinions misstate the issue, and proceed on the basis of a mistaken assumption._

*677A

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

Section 32 of the first Restatement of Contracts stated that "a method is provided for determining the length of the engagement” — and, thus, a durational term — where a promises b to employ him, *678and b promises to serve a "as long as b is able to do the work.”2 (Emphasis added.)

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

The misstatement of the issue appears in the following sentence of the lead opinion:

The issue posed by this case is whether defendant employer’s oral statements and written policy statements directed at plaintiff may be interpreted to permit a promise implied in fact not to terminate except for cause.[4] [Emphasis added.]

A claim for wrongful discharge predicated on "oral statements directed at plaintiff” — e.g., "as long as I sold, I would have a job at Montgomery Ward” — seeks recovery on the basis of an express promise, not a promise implied in fact. A claim that is based on an employer’s "written policy *679statements” would, indeed, depend on an implied promise.

The signers of the lead opinion err in combining two inquiries:

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

—Did Montgomery Ward’s "written policy statements” "imply in fact” a promise not to terminate except for cause?

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

Rowe’s express contract claim for wrongful discharge does not depend at all on Montgomery Ward’s "written policy statements”5 or on terms left to inference. Rowe claimed, she testified, the person who hired her corroborated, and the jury found, that Montgomery Ward offered — subject to Rules of Personal Conduct that enumerated grounds for discharge6 — to employ her to sell appli*680anees at a stated compensation for as long as she was able to do the work, i.e., selling.7 Those terms *681were all express, none were implied.

Since the promise made to Rowe stated a durational term and required no performance of Rowe other than that she sell, then, absent a term inferred for the beneñt of the employer that she could be discharged for a cause not stated in the Rules of Personal Conduct, Rowe could be discharged only for nonperformance, i.e., failure to sell, or a cause stated in the Rules of Personal Conduct.8

When Montgomery Ward discharged Rowe it did not claim that she had ceased to be able to do the work, i.e., to sell. On the contrary, Rowe’s sales record was exemplary.9 The stated10 reason for discharging Rowe was that on one occasion she left *682the store without permission and failed to note on her time card that she had been absent. The question whether Rowe was properly discharged for cause in failing to punch out on her time card was submitted to the jury,11 and by its verdict12 the jury found that Rowe’s failure to punch out was not cause for discharge.13

*683C

Contracts with "as long as” durational terms are express contracts. The majority concludes that to maintain an action on an express "as long as” promise of employment, a promisee must establish an implied promise by the promisor not to discharge at will. The conclusion that a promisor may renege at will unless he impliedly promised not to renege at will is without support in the cases,14 and should be viewed by promisors generally — even those who may, in the short run, believe that today’s decision is to their advantage— as excessive.

The majority compounds the errors in misstating the issue (subpart A, p 677), and in proceeding to decision on the mistaken assumption that the promise made to Rowe did not state a durational term (subpart b, p 678), by donning the mantle of trier of fact.

On the basis of its subjective intuition that *684Montgomery Ward did not "in reality” agree to limit "managerial discretion” to discharge at will,15 the majority finds that there was not "mutual assent,” and that the "minds” of the parties did not meet.16

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

The lead opinion begins with a comment about Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), stating that there this Court "extended job security to non-unionized employees.”18

Toussaint did not, however, extend job security to nonunion employees. It simply ruled that promises of job security that had been extended — not by the courts, but rather by employers — were enforceable in a court of law. In Valentine v General American Credit, Inc, 420 Mich 256, 258; 362 NW2d 628 (1984), a unanimous Court said:

Toussaint makes employment contracts which provide that an employee will not be dismissed except for cause enforceable in the same manner as other contracts. It did not recognize employment as a fundamental right or create a new "special” right. [Emphasis added.]

Toussaint, thus, did not create entitlement to job *685security for nonunionized employees. It simply ruled that if an employer promises job security, a court of law will enforce that promise. Today, the court retreats from enforcement of a promise found on an adequate record to have been made to an employee.

Montgomery Ward, apparently responding to Toussaint, has required all persons newly hired since 1982 to "sign off” any claim of job security by acknowledging in writing that no promise of job security was made. Rowe was hired, however, before new employees were required to so sign, and refused to sign when asked to do so.19_

*686F

The majority also mischaracterizes the promise made to Rowe as one for "permanent” or "lifetime” employment.

A contract of employment is ordinarily deemed to be terminable at will if the parties do not agree on the duration of the employment, or agree on "permanent” or "lifetime” employment.

The signers of the lead opinion erroneously equate an "as long as” durational term with a "permanent employment” term.20 "As long as one can sell” is not "permanent” or "for life.”

Such a promise is not an "extraordinary”21 promise of "permanent” or "lifetime” employment but, rather, a not unusual promise of employment for as long as the employee is able to do the work.

Rowe did not allege that she was promised permanent22 employment. She claimed, rather, that she was promised employment for "as long as she sold” at the required rate. By its terms, such a *687promise is not for "permanent” or "lifetime” employment but, rather, for employment for a durational term coextensive with the time that the employee is able to do the work.

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

Rowe has not advocated the position dealt with by the majority adversely to other employee litigants who are not now before the Court, but whose cases are pending in this Court on applications filed by employers for leave to appeal from decisions of the Court of Appeals.

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

I would hold, contrary to the majority, that

—An offer by an employer to employ a person for stated compensation "as long as” the person "is able to do the work” — here to "sell” a sufficient amount of appliances to earn commissions at least equal to the weekly draw — defines clearly, specifically, and unambiguously the work to be done, the compensation to be paid, and a durational term of the contract, so that the trier of fact may find, upon acceptance of the offer, an express contract *688of employment was formed for as long as the employee is able to do the work.

—Since the contract provides a method for determining the length of the engagement, namely, the length of time the employee is able to do the work, the duration of the contract is determinable. The duration is therefore sufficiently definite, although it is uncertain how long the employee will be able to do the work and, thus, when the contract will terminate.

—The promise made by such an employer to the employee — to provide the employee with work at a stated compensation for as long as the employee is able to do the work — is express and not implied.23

—The "presumption” of employment at will is overcome by such an express promise for a determinable and, hence, a sufficiently definite term of employment.

—An offeror’s intention will be held to be what a reasonable person in the position of the other party would conclude the offer meant.

The correct inquiry in this case, therefore, is what a reasonable person in Rowe’s position would conclude the offer of a job for "as long as she sold” the requisite amount of appliances, subject to Rules of Personal Conduct that enumerated grounds for discharge, meant with regard to whether her employment was terminable at the will of Montgomery Ward or only for cause.

The focus therefore should be on what Rowe could reasonably have concluded the offer meant with regard to termination of employment, and not on whether Montgomery Ward actually in*689tended or meant to promise a contract providing termination only for cause.24

It is undisputed that Vernon Harry man, when he hired Rowe, made the promissory statements or "manifestations” that they both related at the trial, when they testified that she was told that as long as she sold she would have a job at Montgomery Ward, and that Rowe signed Rules of Personal Conduct enumerating grounds for discharge.25

Reasonable jurors could properly conclude on that basis that Montgomery Ward intended to provide employment not terminable at its will but only for cause, because that is what a reasonable woman in Rowe’s position might reasonably conclude Montgomery Ward meant by its promissory statements or manifestations.

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

—A durational term of an employment contract is not negated, as a matter of law, by evidence that the employee did not, when hired, inquire about, or "negotiate” for, job security, or by evidence that the employee was seeking a sales position rather than a "singular, executive job position[ ].”26_•

*690II

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

The question whether an "as long as” term is sufficiently certain to be enforceable has been considered by courts in a number of contexts. The author of one treatise on the law of contracts has summed up the pertinent case law as follows:

Where the contract by its terms provides that it is to terminate upon the happening of a stated event, or that performance is to continue until the happening of a stated event, it is not too indefinite for enforcement, even though it is impossible to tell when the event will happen. For example, if by the contract performance is to continue so long as the parties are engaged in a certain business, the contract is sufficiently definite as to duration to be enforceable. Similarly, where the agreement is to make weekly payments so long as the promisor conducts a certain business, or where a vessel is chartered to the government for one month and as much longer as it may be required by the war department. Also, where plaintiff's employment was to continue so long as workers trained by plaintiff were retained by the employer, the employment agreement was held sufficiently deñnite as to duration to constitute a contract, and was *691not terminable at the will of the employer. [Simpson, Contracts (2d ed), § 48, p 75.27 Emphasis added.]

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

A promises b to employ him for a stated compensation and b promises A to serve therefor as long as b is able to do the work, or as long as a specified business is carried on. These promises create contracts, as a method is provided for determining the length of the engagement. [1 Restatement Contracts, § 32, comment c, illustration 3, pp 41-42. Emphasis added.]__

*692That example is repeated in the Restatement of Contracts, Second.30

Employment contracts are generally oral. The illustrative contract set forth in §32 of the Restatement of Contracts is an employment contract. Nothing there suggests that such a contract must be in writing, or that the contract formed by the promissory exchange between a and b was in writing.

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

Samuel Williston, the reporter for, and Arthur Corbin, the special advisor to the Restatement of Contracts, are the authors of the leading multivolume treatises of the law of contracts31 — standard works in courts, universities, and law offices throughout the country.

The lead opinion relies on obiter dictum in a footnote that characterizes " ’as long as you do the *693job’ ” as expressing a "hope and non-contractual wish,”32 The opinion containing that characterization in obiter dictum was written and signed by one judge, and cites no authority.33

The author of the lead opinion in this case also wrote the lead opinion in the companion case of Dumas v Auto Club Ins Ass'n 437 Mich 521; 473 NW2d 652 (1991). There the Court considers the enforceability of a promise to pay a seven percent renewal commission to sales representatives for "as long as they were employed by the Auto Club,” or "forever,” or "always,” or "words to that effect.” (Emphasis added.) The signers of the lead opinion do not, as here, say that such a promise is unenforceable because it constitutes nothing more than an expression of a "hope and noncontractual *694wish.” They adopt, rather, three other modes of analysis.

Proceeding on the apparent premise that such a promise, if made, would be enforceable, the signers of the lead opinion in Dumas conclude that

—the one hundred thirty-nine sales representatives comprising Group a could not recover because the "as long as” promise there alleged was not "expressly” made, not because an "as long as” promise in an oral employment contract is not enforceable;

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

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

Courts generally regard "as long as” contracts as considerably more than expressions of a "hope and noncontractual wish,” but, rather, as expressing a durational term.

This Court, in Caplis v Monroe, 228 Mich 586, 588; 200 NW 123 (1924), held that an oral leasehold was for a term not exceeding one year, and, hence, not violative of the statute of frauds, on the basis of the tenant’s testimony that the landlord told him that " 'as long as I paid the rent that I could stay there until she sold the property. . . .’” This Court said:

The contract constituted a concise lease in plain *695terms of contingent but determinative duration. That is certain in law which can be made certain. The specified contingency might occur within the year and there was no understanding that it would not. [Id., p 594. Emphasis added.]

The United States Court of Appeals for the Sixth Circuit,34 the Supreme Court of Mississippi,35 a Colorado appeals court36 and a New York trial court37 have held that oral employment contracts for "as long as” the employee maintained his performance at a certain level,38 a business was operated at the named place,39 the plaintiff was a stockholder of the corporation,40 or the defendant employer "continued to employ workers trained, *696developed and gathered by plaintiff,”41 provided sufficiently definite durational terms.

The highest courts of Minnesota and Massachusetts dealt with nonfinite durational terms in written employment contracts. The Minnesota court held that the durational term was "sufficiently defined” where defendant agreed to employ the plaintiff during the time "the business of said corporation should be continued, not exceeding the term of the existence of said corporation . . . .”42 The Massachusetts court held that the durational term was not too indefinite where the employer agreed to employ the plaintiff "as long as” he faithfully and diligently performed the duties at the compensation fixed.43

The highest court of New York held that an oral agreement providing that the plaintiff was the exclusive distributor of pumpernickel bread "as long as” both the plaintiff and the defendant remained in business was not "interminable” because it would last at most only as long as the plaintiff and the defendant were both in business.44 The Supreme Court of California similarly held that an agreement providing the plaintiff with an exclusive selling agency "so long as” the plaintiff " 'shall perform the terms of [the] agreement’ ” was "sufficiently certain. ”45

In a case that may be seen as the mirror image of an exclusive distribution agreement, New York’s intermediate appellate court held that a sufficient durational term was provided, where the *697plaintiff and the defendant orally agreed that the plaintiff would receive a weekly check from the defendant "as long as” the plaintiff, a newspaper salesman or distributor, abstained from distributing another newspaper. The court found that the "duration of the contract was not unmeasured, as it would continue until plaintiff did an act, viz., resumed the sale of the Telegram.”46

The United States Supreme Court held that an oral agreement by a railroad to " 'put down the iron rails and maintain the switch for the plaintiff’s benefit for shipping purposes as long as he needed it’ ” was not within the local statute of frauds applicable to "an 'agreement . . . not to be performed within . . . one year . . . .’ ”47

The Supreme Judicial Court of Massachusetts found that a promise by the individual defendants to pay the plaintiff "$100 a month, so long as [the individual defendants] should be connected with the defendant corporation, if [the plaintiff] should succeed in having the [individual defendants] sell their shares to them,” "carried its own measure of time . . . even though it is impossible to predict precisely when the contingency will occur that will bring the contract to an end.”48

"As long as” durational terms have also been found to be sufficiently certain in requirements contracts.49 An agreement to furnish water to a *698hospital "as long as the State of Texas shall in good faith operate and maintain a hospital at the site” was found by the Supreme Court of Texas to provide a "certain and definite” term.50 The Supreme Court of Wisconsin found that an agreement to install telephones in plaintiff’s public buildings and to maintain them for "as long as” defendant should maintain and operate a telephone system in the city fixed "a time for its termination . . . .”51 Similarly worded requirements contracts were also found to provide adequate durational terms by the Supreme Court of Ohio52 *699and a Louisiana appellate court.53

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

The signers of the lead opinion state that "because of the difficulty in verifying oral promises, the statements must clearly permit a construction which supports the asserted meaning.”60

It is again relevant that the parties indisputably entered into a "contractual relationship.” The only dispute concerns the enforceability of a single term of that relationship, the "as long as” dura*700tional term. Montgomery Ward did not seek to refute Rowe’s and Harryman’s testimony that the "as long as” term was agreed to.

Nor do the signers of the lead opinion cite authority for their view that words used to express oral contract terms must, more so than the words used in a written contract, "clearly permit a construction which supports the asserted meaning.” The contract was oral in Caplis,61 and in a number of the cases decided in other jurisdictions where the courts found that an "as long as” term provided a sufficiently definite durational term.62

In all events, this Court, in Caplis, held that an oral lease for " 'as long as I paid the rent’ ” and " 'until [the landlord] sold the property’ ” constituted a concise agreement "in plain terms of contingent but determinative duration. That is certain in law which can be made certain.”63

To be sure, the formality of a writing may provide some additional assurance. In a case such as this, however, where there is no dispute concerning what was said, and where the words clearly would be sufficient to add an "as long as” durational term to the contract were it in writing, it cannot properly be said that the "as long as” term is not sufficient because it is oral.

Manifestly, if a collective bargaining agreement provided that the members of a labor union would be employed "as long as” John Engler is Governor, or Michael F. Cavanagh is Chief Justice, the durational term would be reasonably certain and the agreement enforceable.64 Such a durational *701term would not be less certain or less enforceable if it were expressed orally.

The emphasis in the concurring opinion on the absence of a durational term suggests recognition that where there is a durationál term the employee ordinarily cannot be discharged during the duration of the contract except for cause.65 To hold otherwise would vitiate an employment contract for "as long as the employee is able to do the work.”

The concurring opinion asserts that "it does not follow that a promise to continue employment until cause existed for termination must be inferred” from an "express statement of job security,” such as "for 'as long as I sold.’,,66 Toussaint contradicts this assertion.

Both of the contracts of employment considered in Toussaint were for "as long as” the employee did the job. Toussaint held that the trier of fact may find on the basis of an "as long as I do the job” promise of employment that the employment will continue until there is cause for termination.67

*702Rowe’s contract of employment was an "as long as I do the job” contract. Under Toussaint, the jury could properly be permitted to find that her contract was not terminable except for cause.

The author of the concurring opinion appears to acknowledge that "for 'as long as I sold’ ” is an "express statement of job security.”68 Nevertheless, it is asserted that "employment at will is the inferred term that the court supplies by construction” because "the parties have not supplied a durational term.”69 It is again relevant that "as long as I sold” supplies a durational term.

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

There is no suggestion in the cases there discussed that a term might properly be inferred permitting such a promisor to renege "at will,” or that the promisee must, as a predicate of recovery, establish an implied promise not to renege "at *703will.” On the contrary, if a renege-at-will term were implied, or a promise not to renege at will were a predicate of recovery, the plaintiffs in all the cases discussed in part ii-f would have lost instead of prevailing.

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

The author of the concurring opinion finds persuasive the analysis of the lead opinion on "the threshold issue of intent.”71 (Emphasis added.)

The concurring opinion cites Professor Perritt’s statement that an "informal promise” of employment security should not be "taken seriously by the law” unless the employee demonstrates that "both parties meant for their deal to be enforced.”72 The concurring opinion suggests that the lead opinion has adopted this position in stating that oral promises will be recognized where "cir*704cumstances suggest both parties intended to be bound.”73 (Emphasis added.)

The doctrinal thesis adopted by the majority appears to be that an employee seeking to enforce a contract of employment — in contrast with any other person who asserts that he entered into a contract with another person — has the burden of showing, with evidence other than the usual promissory "manifestations,” that the employer actually intended to be bound.

The general rule, however, as stated by Professors Calamari and Perillo, is that "a party’s intention will be held to be what a reasonable man in the position of the other party would conclude his manifestation to mean.”74

Professor Farnsworth similarly wrote that the prevailing view is that the standard is objective and not subjective. The "promisee” is not required to show that the "promisor” made the promissory statement "with the intention of assenting to an agreement. It is enough that the other party had reason to believe that the first party had that intention.”75 Farnsworth, Contracts, § 3.6, p 114. (Emphasis added.)_

*705Professor Farnsworth continued:

[T]he objective theory tends to hold the parties to linguistic usage that is accepted as normal, a matter of fact that arguably falls within the province of a jury.[76]

The signers of the lead opinion quote with approval from this Court’s opinion in Goldman v Century Ins Co, 354 Mich 528, 535; 93 NW2d 240 (1958).77 There, this Court adopted the objective standard for determining what constitutes a "meeting of the minds,” and rejected the subjective approach.78 Speaking through Justice Talbot Smith, the Court said:

*706We agree, also, that evidence of the unexpressed thoughts and understanding of the Goldmans was inadmissible to establish their intent. The Gold-mans assert that such denial "shatters the whole concept of a 'meeting of the minds.’ ” They read the figure of speech too literally. To say, as we do, that a contract requires a "meeting of the minds” is only a figurative way of saying there must be mutual assent. This we judge by an objective standard, looking to the expressed words of the parties and their visible acts. [Emphasis added.]

The signers of the lead and concurring opinions appear to have adopted the subjective view, requiring evidence that "both parties intended to be bound,”79 of "actual mental assent”80 by the employer, to constitute a "meeting of the minds.”81

*707The lead and concurring opinions, in requiring "objective” indications or "validations,”82 have in truth rejected, for oral contracts of employment, the general doctrine that "a party’s intention will be held to be what a reasonable man in the position of the other party would conclude his manifestation to mean.”

The majority, in effect, announces a new rule of law requiring corroboration or something akin, that an employer, acting through a subordinate such as Harryman,83 actually intended to provide job security.

The use of the quotations from Professor Perritt’s treatise on Employee Dismissal Law and Practice in the concurring opinion is misleading.84

*708When Professor Perritt states that there is little support in the cases for "forget[ting] about validation devices and [for] enforc[ing] employer promises of employment security merely upon proof that the employer made them,” he is referring to Professor Fried’s thesis that promises should be enforced on the basis of fairness without, regard to whether there is consideration.85

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

Professor Perritt’s true views become clear on reading the following:

The doctrine of additional consideration sometimes has led to the erroneous notion that a promise of employment tenure must be supported by its own consideration, separate from consideration for other promises in the employment agreement.[86]

*709Like the observations of Professor Perritt, Professor Epstein’s remarks, in a law review article quoted in the concurring opinion, are directed at a question not here presented.

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

Professor Epstein’s views are clarified in reading the following passage, which the majority should *710consider in assessing the issues presented in Dumas.

*709The rule of construction is normally chosen because it reflects the dominant practice in a given class of cases and because that practice is itself regarded as making good sense for the standard transactions it governs. It is of course freely waivable by a joint expression of contrary intention. When the law introduces a just-cause requirement, it flies in the face of ordinary understandings and thus rests upon an assumption that just-cause arrangements are in the broad run of cases either more frequent or desirable than the contract at will, though neither is the case. Where this rule of construction is used, therefore, contracting-out will have to take place in the very large number of cases where the parties desire to conform to the norm by entering into a contract at will. Furthermore, it may be difficult to waive the for-cause requirement in fact, even if waiver is formally allowable as a matter of law, because of high standards for “informed” waiver that cannot be met after the fact. By degrees, the original presumption against the contract at will could so gain in strength that a requirement that is waivable in theory could easily become conclusive in fact. [Epstein, In defense of the contract at will, 51 U Chi L R 947, 951-952 (1984). Emphasis added.]

*710The same problems can exist with modern employment contracts. Suppose that a worker has put in the effort to obtain for the firm a large contract on which he is to be paid a commission. If the firm dismisses him under an at-will contract before the sale is consummated and the commission is formally due, most courts will (rightly) imply a term of good faith that gives the employee the commission for the work done, unless the agreement explicitly provides otherwise. Thus in Coleman v Graybar Electric Co, Inc [195 F2d 374 (CA 5, 1952)], the plaintiff’s claim for compensation rested in part upon commissions that were paid annually based upon the sales record in the previous period. The court construed the contract to preclude the at-will norm: "We conclude that in this case the contract did not authorize the forfeiture of additional compensation provided in the plan of compensation if the services of the employee were terminated arbitrarily and without just cause.” [Epstein, In defense of the contract at will, 51 U Chi L R 947, 980 (1984).]

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

*711A

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

The analysis of the lead opinion suggests that if, instead of "stumbling” into the store one day, Rowe had answered a help-wanted advertisement Montgomery Ward was thén running, or if she had "inquired” about job security, a different result might be justified.

The record, indeed, does not indicate how the subject of job security arose during the preemployment interview. But somehow or other the subject came up. When Harryman was asked whether he had informed Rowe of the "reasons for which she may be terminated,” Harryman testified, "[t]heft or, you know, obviously, murder, or something like that; theft of any company properties, or so on.” Also, Rowe signed the Rules of Personal Conduct, which enumerated grounds for discharge.

Since the record provides at least an issue properly submissible to the jury regarding whether Rowe and Harryman discussed job security, it should not be of any importance whether Rowe "inquired” about job security before Harryman brought it up and described the current policy as he understood it.89

Yet, even if Rowe had "inquired” about job *712security, that would not satisfy the majority. With still another analysis, the signers of the lead opinion observe that in Toussaint, supra, the plaintiff was applying for a "singular, executive job position[ ],” while Rowe "was one of many departmental salespersons.” The lead opinion observes that Rowe’s application was for one of "several identical positions” and reasons that this circumstance "militates against the likelihood that the contract terms were negotiable and suggests that company policy was more likely to govern.”90

The record does not, however, indicate that there was a "company policy” contrary to Rowe’s and Harryman’s testimony. The Montgomery Ward manager who discharged Rowe testified that she would have had to rely, at the time she was hired, on what Harryman told her and what the Rules of Personal Conduct provided.

The lead opinion does not state or describe the "company policy” adverted to in the opinion. Thus, in addition to assessing, as trier of fact, the "likelihood that the contract terms were negotiable,” and finding that "company policy was more likely to govern,” the lead opinion appears to hypothesize or posit, without record support, an unstated and undescribed "company policy” that was neither consistent with Harryman’s statements to Rowe nor reflected in the Rules of Personal Conduct.

The lead opinion states that "[ujnlike Toussaint, plaintiff did not engage in preemployment negotiations regarding security.”91

Toussaint dealt with the consolidated appeals in *713Charles Toussaint’s action against Blue Cross & Blue Shield of Michigan, and Walter Ebling’s action against Masco Corporation. Both Toussaint and Ebling were employed in middle-management positions.

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

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

The effort to distinguish Toussaint on the basis of negotiations for job security does not bear analysis insofar as the case of Charles Toussaint is concerned.

The concurring opinion adverts to "the circumstances identified as objective indications of intent”93 said to be set forth in the lead opinion. I fail to see how any of these criteria provide "objective indications” of an employer’s actual intent to relinquish "managerial discretion” to discharge an employee at will. Be that as it may, the "circum*714stances identified as objective 'indications of intent” tend — objectively or subjectively viewed — to support Rowe.94

The author of the concurring opinion postulates still another rule of construction:

[W]hen considering whether a statement constitutes an offer, in the context of commercial contracts, courts construe a statement as nonpromis*715sory if it would expose the maker to the risk of being bound to perform beyond his means to perform.[95] [Emphasis added.]

This suggests that providing job security for commissioned salespersons for as long as they sell might have been beyond the means of Montgomery Ward. There is nothing in the record to support such a finding, and under the circumstance that commissioned salespersons are paid only when they sell, it is unlikely that this rule of construction has any application on this record.

In this connection, especially noteworthy are the decisions of the Supreme Courts of Texas and California, and of the Louisiana Court of Appeal,96 because in each of those cases the contracts — to provide water, pest control, or an exclusive selling agency — proved to be onerous during their long terms. The courts did not, however, relieve the contracting party of the "as long as” promise. Again, however, there is nothing to suggest that employing Rowe, on a straight commission basis, as long as she sold might be economically disadvantageous to Montgomery Ward.

VII

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

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

*716A

The first paragraph of part ii of the lead opinion reads:

Having concluded that the employer’s oral statements and the "Rules of Personal Conduct” did not form contracts for permanent employment, we must next decide whether the disciplinary guidelines promulgated by defendant gave rise to an employment contract providing termination only for just cause where defendant concurrently issued sign-off sheets containing an employment-at-will policy. We ñnd that plaintiff cannot maintain an action for breach of contract on the basis of the disciplinary guidelines because the last handbook which plaintiff received clearly set forth an employment-at-will policy.[97] [Emphasis added.]

The "last handbook” was issued in 1983.

While Rowe argued that the Rules of Personal Conduct, which she signed in August, 1976, when she was hired, were part of her express contract of employment and gave rise to reasonable expectations of termination only for cause, she did not assert that the procedure set forth in the 1983 manual or handbook — the sign-off sheet which she did not sign — gave rise to an implied promise of termination only for cause. Rowe did not assert that she could, in the words of the lead opinion, "maintain an action for breach of contract on the basis of the disciplinary guidelines” set forth in the 1983 handbook.

Rowe’s brief did not claim rights under the 1983 *717manual or handbook,98 but rather that it was not binding on her.99 During oral argument, Rowe *718stated her position that as a result of both the oral assurances creating the express-contract leg under Toussaint, and as a result of Rules of Personal Conduct, in light of this Court’s ruling in Toussaint and subsequent cases, a question was raised sufficient for presentation of the jury. The reference to the Rules of Personal Conduct, of course,. adverts to the Rules of Personal Conduct signed in 1976, and not the 1982 or 1983 manuals or handbooks.

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

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

*719Plaintiff relies upon an expression in Carmichael v Carmichael, 72 Mich 76 [40 NW 173 (1888)], to the effect that beneficiaries under contract to make a will were proper parties plaintiff, "as parties having vested interest in this real estate under the contract of their father and mother.” The question of vesting was not raised in the case, and the expression cannot be given the force of authority thereon. [Emphasis added.][101]

Stated otherwise, where the parties have not supplied a durational term, employment at will is the inferred term that the court supplies by construction. [Boyle, J., ante, p 664. Emphasis added.]

Otherwise stated, it [reliance or special consideration] is circumstantial evidence that the omitted durational term that the court would otherwise infer (employment at will) does not reflect the parties’ intent. [Id., p 665. Emphasis added.]

[C]ourts are much more reluctant to infer a durational term. [Id., p 667. Emphasis added.]

In most employment arrangements, the durational term is central to the agreement because it is inseparable from the threshold question whether a commitment could reasonably be understood to be a promise. [Id. Emphasis added.]

I agree with Justice Riley’s conclusion that there is an insufficient basis to overcome the presumption and supply an omitted durational term. In this context, the standard of performance is not sufficient to guide the Court on the central question of the parties’ intent regarding the duration of the employment relationship. [Id., pp 667-668. Emphasis added.]

It is just as true, however, that the party bearing the burden of overcoming the presumption of employment at will must convince the court either that it should supply an omitted term or that the circumstances are such that the jury should be permitted to so conclude. [Riley, J., ante, p 639. Emphasis added.]

Restatement Contracts, § 32, comment c, illustration 3, pp 41-42. Now, Restatement Contracts, 2d, § 33, comment d, illustration 5, p 94.

Learned Hand, Benjamin N. Cardozo, John W. Davis, Owen J. Roberts, Elihu Root, and others, were members of the Council of the Institute whose concurrence was required before a Restatement could be promulgated.

Riley, J., ante, p 636. The signers of the opinion conclude that "plaintiff’s allegations are insufficient to support her contention of a promise implied in fact limiting the defendant’s right to terminate her employment,” id. (emphasis added), and that "objective evidence [is] lacking to permit a reasonable juror to find that a reasonable promisee would interpret Harryman’s statements and actions as a promise of termination only for cause implied in fact.” Id., p 643.

Since Rowe was hired in 1976, before Montgomery Ward issued its 1982 and 1983 employee manuals or handbooks, the written policy statements there set forth have no bearing on the terms of her contract.

Rowe’s assertion that the Rules of Personal Conduct gave rise to legitimate expectations that she would not be discharged at will, suggests that she was seeking recovery on an implied promise not to terminate her employment except for cause. But the majority’s conclusion that no such promise can be inferred does not reach or decide the question whether the promise of employment at a stated compensation as long as she sold gave rise to an express employment contract when she accepted the offer. If, as the jury found, that promise and acceptance formed a contract, the resulting contract was express, not implied.

When Rowe was hired, she was given and signed a copy of the Rules of Personal Conduct. The full text of the Rules of Personal Conduct follow:

Rules of Personal Conduct

Everyone at Wards is working for the same Company goals. *680Your adherence to Company policies and high personal standards will help Wards and you achieve: Growth, Profit, Security, Successful career.

However, the following activities are extremely harmful to the success of our store, and anyone involved in them will be immediately dismissed:

• Theft

• Destruction or misappropriation of property

• Violation of accepted moral standards

• Manipulating, altering or falsifying Company records (including employment application)

• Dishonesty of any kind

You should be familiar with Wards rules and regulations and all of the procedures governing you and your job.

We are confident you will always conduct yourself according to the rules of good conduct.

I have read and agree to the above statements. My trainer has explained the Company policies and rules governing the store and my job. I understand what is expected of me as an employee.

/s/ Mary Rowe_ Aug. 9,1976

(Employee’s name) (Date)

(Trainer’s name) (Date)

This sheet becomes a permanent part of the employee’s file.

Rowe was hired in 1976 to sell sewing machines at a store in Grand Rapids. Later she was transferred to major appliances. Rowe received a straight nine percent commission for the sale of sewing machines and six percent for the sale of major appliances.

When Rowe was hired, she was interviewed by Vernon Harryman, the manager of the appliance department. Rowe testified that Harry-man explained the requirements of the job and said, "as long as I sold, I would have a job at Montgomery Ward.” Harryman testified that he informed Rowe that if she did riot make the amount of her draw against commission for two consecutive months, she would be reviewed and that such failure would be grounds for dismissal.

Harryman testified that commissioned salespersons were different *681from hourly employees: "[GJenerally, as long as they generated sales and were honest, why, they had a job at Wards, and that’s the way we used to hire our people.” He said that Rowe would have to sell approximately $2,000 of sewing machines a week to make her draw, and that was the number one thing, condition of employment, and that, if she failed to generate such sales for two months, her employment would be subject to termination.

The Rules of Personal Conduct, insofar as they enumerated grounds for discharge, were part of the express contract asserted by Rowe.

In deciding whether Rowe was properly discharged for cause, the jury was not, however, limited to an inquiry whether she had violated the particularized grounds of discharge set forth in the Rules of Personal Conduct. Rowe acknowledged that an employee may ordinarily be discharged for cause without regard to whether such a term is expressed at the time of hiring. But, if such a term is not expressed, it is the employer who will later seek to establish by implication a term that he may discharge for cause although the employee otherwise has duly performed the work.

Insofar as Montgomery Ward sought to justify Rowe’s discharge on the basis of a cause not stated in the Rules of Personal Conduct, it was Montgomery Ward who sought to establish by implication a term —i.e., that Rowe could be discharged for any "cause,” not only cause stated in the Rules of Personal Conduct — rather than Rowe who was seeking, as the signers of the lead opinion erroneously declare, to infer a promise that her employment could not be terminated except for cause.

Rowe frequently set sales records and won prizes for her sales efforts.

But see n 19.

The signers of the lead opinion misstate Rowe’s position when they suggest that she asserted she could "only be dismissed for failure to obtain her quota . . . .” Riley, J., ante, p 644. She acknowledged that she could be dismissed for cause. See ns 8 and 65.

Rowe commenced this action against Montgomery Ward in May, 1984, claiming breach of contract and wrongful discharge. The jury returned a verdict of $86,500 for Rowe. The majority does not find that, contrary to the jury’s verdict, there was cause for dismissal.

It does not appear that Rowe had any disciplinary record, even in the form of a warning or a reprimand during her nearly eight years with Montgomery Ward.

Rowe was scheduled to work between 1:00 p.m. and 9:00 p.m. on a Saturday in March, 1984. At about 2:00 p.m., a Montgomery Ward "loss prevention officer” observed Rowe leave through an unauthorized exit. Upon checking her time card, he observed that she had not punched out. Rowe returned about 6:00 p.m. Rowe made no notation on her time card of her extended absence from the store.

Rowe testified that another salesperson, Marie Morris, asked Rowe to switch shifts with her so that Morris could visit a terminally ill friend in the hospital. Rowe agreed, but added that she might have to attend to a personal matter on Saturday afternoon and had even considered taking all day Saturday off. Rowe also testified that the commissioned employees switched their shifts back and forth from time to time. Rowe had attempted on the previous evening to reach her supervisor to tell him of the switch, but he did not work on Friday and did not come in on Saturday. Morris confirmed Rowe’s testimony about trading shifts in general, and specifically with respect to the trade that occurred that Saturday.

Rowe testified that she was familiar with the staffing needs of the department, and that she did not leave the store without assuring herself that there was an adequate number of persons staffing the major appliance department. Another employee confirmed her testimony.

Harryman testified that while all employees were required to punch in and out, these policies frequently changed. He indicated that they really had little application to commission salespersons. He said, "The number one thing was to work, attain those draw figures. It was sales. Sales covered a multitude of sins. That was our favorite slogan at Wards.” He said that Rowe was the best commission salesperson he had ever worked with.

When Rowe returned to work, a security guard was waiting for her *683and escorted her to the office of the store manager. Rowe was told that she had violated a company policy. She responded that she honestly did not know which policy they were talking about. When Rowe was told that she had left the store without punching her time card and had cost the company money, she responded that she worked on commission and had more sales than anyone that day. Rowe added that she was sorry that she did not punch out while gone, and would do so in the future.

Rowe said that she was asked to sign "another paper” and that she should "read it over and write down what happened and sign it.” Rowe refused. The manager was then called in and said that he had no choice but to dismiss Rowe. When she responded that he would be losing the best salesperson he had, he responded, "Yes, I know,” and then said something to the effect that he had no choice.

Rowe testified that she had left on that Saturday afternoon to assist her elderly and ailing father with housekeeping chores in preparing her parents’ home for the return of her mother, who had been away for a number of months.

See part ii-f, n 34 ff, and accompanying text.

Riley, J., ante, p 631.

Id., pp 640, 643, 644.

Calamari & Perillo, Contracts (3d ed), § 2-2, p 27. See part m, n 74 ff.

Riley, J., ante, p 631.

In 1982 or 1983, a number of years after Rowe was hired, she was asked to sign a writing stating that her employment was at will, and refused to do so. The majority does not posit its disposition of this appeal on the basis that, although she did not expressly agree thereto, she was bound by the statements in the employee manuals distributed after she was hired.

Sometime after August 1982, Montgomery Ward issued an "Employee Guide” that included an introductory letter from the company president and ceo, as well as other introductory materials suggesting that the manual was directed to new employees. A slightly different version of the manual, also directed to new employees, was issued in May, 1983.

Each version of the manual had a final "tear-out” or "cut-out” page which was labeled "Employee Sign-off Sheet,” which the employee was asked to sign and return to the immediate supervisor or personnel representative for inclusion within the personnel file of the employee. The sign-off sheet stated that employment at Montgomery Ward was at will.

Rowe testified that she refused to sign this sign-off sheet when it was presented to her. The back of the document contains the inscription: "Read & do not wish to sign. 5-20-82 [/s/] Mary Rowe.” Rowe testified that she said she would not sign the form, and she "didn’t really think it was right to come along in 1983 and ask me to sign a new employee handbook.”

According to Rowe, the following conversation occurred between her and a person in the personnel department:

A. I took it back to the office and I handed the book to them and I said, "I’m sorry, but I cannot, in truth, sign this,” and I handed her the book.

Q. [Mr. Spruit]: And this was Ms. Foster?

A. Yes.

Q. And what did she say?

*686A. She said, "You have to sign it.” I said, "I beg your pardon. This is a free country and I really don’t feel, — if you feel in your heart that it’s not right to sign, I’m not going to sign it,” and she said, "If you don’t sign it, you don’t have a job.” So this went on, I think, for almost a week, back and forth, "Sign the book,” "No, I don’t feel I can sign it. I’m not a new employee. It just isn’t right.” So finally, she said, "All right. If you don’t sign the book, will you at least acknowledge that you got it?” and I said, "Yes, I will do that,” and so on a sheet of paper, I wrote "refused to sign” and initialed it or signed it, that part of it.

Consequently, the court stated that any orally grounded contractual obligation for permanent employment "must be based on more than an expression of an optimistic hope of a long relationship.” [Riley, J., ante, p 640. Emphasis added.]

Bullock v Automobile Club of Michigan, 432 Mich 472, 517; 444 NW2d 114 (1989) (Griffin, J.), quoted by Riley, J., ante, pp 640-641.

The signers of the lead opinion appear to state that the correct inquiry is whether "there was mutual assent on a provision for permanent employment.” Riley, J., ante, p 643 (emphasis added), see n 81, for the full text.

It is the employer, rather, who might seek to rely on a term "implied in fact,” namely, that the employer may, although he did not expressly reserve the right to do so, terminate the employment— at least for cause, the employer would prefer at will — even though he expressly promised the employee employment for as long as the employee is able to do the work.

The correct inquiry is, thus, not whether the "circumstances suggest both parties intended to be bound” (Riley, J., ante, p 636), or whether the employer has "in reality agreed to limit managerial discretion” (id, p 631) to discharge at will. (Emphasis added.)

Harryman, the manager of the appliance department, hired Rowe and corroborated her testimony. See n 7.

Id., p 643.

The author of this treatise also recognized:

In the case of employment contracts without fixed duration it seems to be universally held that only an employment at will is created. [Id., p 74.]

Requirement of Certainty in the Terms of an Offer.

An offer must be so definite in its terms, or require such definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain.

Comment:

a. Inasmuch as the law of contracts deals only with duties defined by the expressions of the parties, the rule stated in the Section is one of necessity as well as of law. The law cannot subject a person to a contractual duty or give another a contractual right unless the character thereof is fixed by the agreement of the parties. A statement by a that he will pay b what a chooses is no promise. A promise by a to give b employment is not wholly illusory, but if neither the character of the employment nor the compensation therefor is stated, the promise is so indefinite that the law cannot enforce it, even if consideration is given for it. [1 Restatement Contracts, § 32, p 40. Emphasis added.]

See n 28 for the § 32 black letter statement of the rule.

A offers to employ b for a stated compensation as long as b is able to do specified work, or as long as a specified business is carried on, and b accepts the terms offered. The length of the engagement is sufficiently definite for the formation of a contract. [1 Restatement Contracts, 2d, § 33, comment d, illustration 5, p 94]

Williston on Contracts and Corbin on Contracts.

Carpenter v American Excelsior Co, 650 F Supp 933, 936, n 6 (ED Mich, 1987).

A panel of the United States Court of Appeals for the Sixth Circuit commented on Carpenter as follows:

Here the district judge, as trier of fact, was faced with a specific promise coupled with a performance standard. Unlike Carpenter, Diggs did not sign an "employment-at-will” clause. [Diggs IV v Pepsi-Cola Metropolitan Bottling Co, Inc, 861 F2d 914, 918 (CA 6, 1988).]

Rowe did not, when hired, agree in writing or orally that her employment was at will. When she was later asked to sign such a writing, she refused. This case also presents "a specific promise coupled with a performance standard.” The evidence showed that Rowe was hired with the understanding that she would have a job at Montgomery Ward as long as she generated sufficient sales to cover her weekly draw.

The judge, in a subsequent opinion denying summary judgment, may have recharacterized Carpenter when he said that in Carpenter the employee had signed an application for employment acknowledging that the employee served at the will or pleasure of the company, and that in such a case a finding of a just-cause contract, sought to be predicated on policies and procedures enumerated in employee handbooks and elsewhere, was precluded. Ross v State Farm Ins Co, 676 F Supp 781 (ED Mich, 1987).

A panel of the United States Court of Appeals for the Sixth Circuit held that an oral promise to retain an employee as district sales manager " 'as long as his performance was maintained at a certain level’ ” was enforceable. (Emphasis added.) Diggs IV, n 32 supra, p 916.

The Supreme Court of Mississippi held that the term of duration of an oral employment contract for "so long as the business was operated at the named place” is not "so indefinite” as to render the contract invalid "as a method is provided therein for determining the length of the engagement.” Thorne v True-Hixon Lumber Co, 167 Miss 266, 273; 148 So 388 (1933), relying on 1 Restatement Contracts, § 32, comment c, illustration 3, pp 41-42.

The Colorado Court of Appeals ruled that where the plaintiff had entered into a written contract of employment to manage a camera supply business that he had sold, taking back ten percent of the capital stock of the purchaser, he could, consistent with the parol evidence rule and the one-year statute of frauds, maintain an action for breach of an oral durational term of the written employment contract. The oral term was "allegedly for as long as” (emphasis added) the plaintiff was a stockholder of the corporation which bought the business. Buechner v Rouse, 538 P2d 117, 118 (Colo App, 1975).

A New York trial court held that an oral employment contract whereby the defendant agreed to employ the plaintiff as manager "so long a time as” the defendant " 'continued to employ workers, trained, developed and gathered by plaintiff,’ ” "fixed an objective limit to the life of the contract — the date when the employment of the skilled workers should cease” to he in the employ of the defendant. Deucht v Storper, 44 NYS2d 350, 351 (NYC, 1943). (Emphasis added.)

See n 34.

See n 35.

See n 36.

See n 37.

McMullan v Dickinson Co, 60 Minn 156,157; 62 NW 120 (1895).

Kirkley v F H Roberts Co, 268 Mass 246, 251; 167 NE 289 (1929). (Emphasis added.)

Ehrenworth v Stuhmer & Co, 229 NY 210, 220; 128 NE 108 (1920).

Long Beach Drug Co v United Drug Co, 13 Cal 2d 158, 165-166; 88 P2d 698 (1939). (Emphasis added.)

Rague v New York Evening Journal Publishing Co, 164 AD 126, 126-127; 149 NYS 668 (1914). (Emphasis added.)

Warner v Texas & Pacific R Co, 164 US 418, 434-435; 17 S Ct 147; 41 L Ed 495 (1896). (Emphasis added.)

Phelps v Shawprint, Inc, 328 Mass 352, 353-355; 103 NE2d 687 (1952). (Emphasis added.) The report is silent whether the agreement was oral or written.

Courts have held to be enforceable oral agreements for the sale of existing scrap and such as would accumulate during the course of building a dam, no definite time or quantity of material being indicated (Mason-Walsh-Atkinson-Kier Co v Stubblefield, 99 F2d 735 [CA 9, 1938]), and for the cutting, sawing, and hauling of lumber from a *698specific tract of land for a specific consideration, where the contract ■ was silent with regard to duration. W P Brown & Sons Lumber Co v Rattray, 238 Ala 406; 192 So 851 (1939).

Big Spring v Texas Bd of Control, 404 SW2d 810, 815 (Tex, 1966).

City of Superior v Douglas Co Telephone Co, 141 Wis 363, 371; 122 NW 1023 (1909).

The court quoted with approval the following statement:

"The duration of a contract may be made dependent upon the expiration of a period of time, or upon the completion of a given undertaking, or the happening of some event, all of which in turn may be certain or uncertain as to the date when the undertaking may be completed, or the event may happen. This uncertainty, however, does not render the contract terminable at will.” [Robson v Mississippi River Logging Co, 43 F 364, 370 (ND Iowa, 1890).]

In another case, the defendant agreed, under a written contract, to "furnish plaintiff steam 'while in the building occupied and used by them as a steam laundry ....’” The Wisconsin Supreme Court held that the term "while” clearly expressed duration, and thus the terms of the contract "indicate[d] that the time of the contract [was] dependent upon the event of use and occupancy of the building by plaintiff as a laundry.” Accordingly, the contract was not void for indefiniteness with regard to time. American Steam Laundry Co v Riverside Printing Co, 171 Wis 644, 647; 177 NW 852 (1920).

The Ohio Supreme Court ruled that a written requirements contract calling for performance "so long as” the plaintiff should own fifteen shares of stock of the defendant company, or "so long as” the plaintiff should continue in the business of selling gasoline, oil, and grease, provided "an ascertainable fact or event by which the duration of the term of [the] contract can be determined . . . .” Fuchs v *699United Motor Stage Co, Inc, 135 Ohio St 509, 512; 21 NE2d 669 (1939). (Emphasis added.)

The Louisiana Court of Appeal found that a contract to provide "pest control and repair services with guarantees for the lifetime of the treated structure so long as the customer paid a specified annual renewal fee” was for a "definite and ascertainable period.’’ State v Orkin Exterminating Co, Inc, 528 So 2d 198, 199, 201 (La App, 1988). (Emphasis added.)

Riley, J., ante, p 644.

Id.

Id., p 645.

Id., p 643.

Id., p 642.

Id., p 643.

Id., p 641.

Discussed in part ii-f, text preceding n 34.

See ns 34-37, 44 and the accompanying text.

Caplis, supra, pp 588, 590, 594.

See Don King Productions, Inc v Douglas, 742 F Supp 741, 763 (SD NY, 1990). The contract provided that it should run for three years plus " 'the entire period [Douglas is] world champion and a *701period of two years following the date on which [Douglas] thereafter cease[s] . 1 . to be so recognized as world champion.’ ”

The court held that the contract was of the type that provides for termination or cancellation upon the occurrence of a specified event, and that it was enforceable.

Rowe does not claim that she could not be discharged for cause. She recognizes that, having signed the Rules of Personal Conduct, she could be discharged on a ground there stated. She also conceded that all the reasonable grounds for discharge under a contract providing termination only for cause need not be particularized.

An exception for cause would ordinarily be implied in fact for the benefit of the employer. There may, however, be a case where it would not be appropriate to infer an exception permitting the employer to discharge for cause other than that the employee is no longer able to do the work.

Boyle, J., ante, p 664.

This Court there said:

*702Both Toussaint and Ebling inquired regarding job security when they were hired. Toussaint testified that he was told he would be with the company "as long as I did my job.” Ebling testified that he was told that if he was "doing the job” he would not be discharged. Toussaint’s testimony, like Ebling’s, made submissible to the jury whether there was an agreement for a contract of employment terminable only for cause. [Toussaint, supra, p 597. Emphasis added.]

Boyle, J., ante, p 664. (Emphasis in original.)

Id.

See n 34 ff, and the accompanying text.

Drawing on the facts of Toussaint and Ebling, the lead opinion sets forth a list of some of the circumstances that are of assistance in determining the threshold issue of intent.

4 Among the circumstances identified as objective indications of intent are the clarity, specificity, and lack of ambiguity of oral statements; whether there were specific negotiations for job security; the nature of the position; and whether, if policy statements are relied on, they support or undercut a reasonable belief that a promise of job security was being extended.

[Boyle, J., ante, pp 663-664.]

Perritt, Employee Dismissal Law & Practice (2d ed), § 4.2, p 176. Professor Perritt’s statement is discussed in part iii-b.

See Boyle, J., ante, pp 665-666; Riley, J., ante, p 636.

Calamari & Perillo, Contracts (3d ed), § 2-2, p 27.

Judge Jerome Frank . . . put it, "The objectivists transferred from the field of torts that stubborn anti-subjectivist 'the reasonable man.’ ” According to the objectivists, a party’s mental assent was not necessary to make a contract. If his actions, judged by a standard of reasonableness, manifested an intention to agree, the real but unexpressed state of his mind was irrelevant. As an analyst from the field of torts might view it, that party had by his fault induced the other to believe that there was a contract.

By the end of the nineteenth century, the objective theory had become ascendant and courts generally accept it today. True, a party may still avoid liability by showing that he did not even intend to engage in the actions by which he appeared to manifest his assent, for example, if he was falsely told that a writing had no legal effect or was compelled to sign by such force that he was a “mere mechanical instrument.” But as long as he intended to engage in those actions, there is no further *705requirement that he must have done so with the intention of assenting to an agreement. It is enough that the other party had reason to believe that the ñrst party had that intention. [Farnsworth, supra, pp 113-114. Emphasis added.]

Id., p 116. (Emphasis added.)

Bernie and Leon Goldman conducted a coal business in Detroit. A fire damaged the coalyard bins, fences, and gates, and the roofs of out buildings in the coalyard, but there was no damage to the one-story or two-story buildings described in the fire insurance policies. The Goldman brothers insisted that they intended to insure everything flammable on the premises.

Professors Calamari and Perillo summarized the debate concerning what constitutes a "meeting of the minds,” and particularly concerning the differing approaches of the subjectivists and the objectivists:

In the previous section it is stated that mutual assent is a prerequisite to the formation of the contract. However, over the years a debate has raged as to whether the assent of the parties should be actual mental assent so that there is a ’’meeting of the minds” or whether assent should be determined solely from objective manifestations of intent — namely what a party says and does rather than what he subjectively intends or believes or assumes. Thus under the objective theory the mental assent and intent of the parties is irrelevant. However, even under the objective theory the acts manifesting assent must be done either intentionally or negligently. For at least a century the objective theory of contracts has been dominant.

Another portion of the credo of the objectivists is that objec*706tive manifestations of intent of the party should be viewed from the vantage point of a reasonable man in the position of the other party. The phrase "in the position of the other party” means that the other party is charged not only with the knowledge of a reasonable man but also with what he knows or should know because of his superior knowledge. . . . [Id., § 2-2, p 26. Emphasis added.]

Riley, J., ante, p 636. (Emphasis added.)

See Calamari & Perillo, n 78.

In deciding whether there was mutual assent to a just-cause provision, we use an objective test, "looking to the expressed words of the parties and their visible acts.” [Riley, J., ante, p 640. Emphasis added.]

In short, no objective evidence exists that their minds met on the subject of continued employment. [Id., p 643. Emphasis added.]

Upon viewing the

surrounding circumstances of this case ... to determine if there was mutual assent on a provision for permanent employment, or if the statements were noncontractual expressions of "optimistic hope of a long relationship,” we find the oral statements insufficient to rise to the level of an agreement providing termination only for just cause. [Id., p 643. Emphasis added.]

*707[Tjhere is less chance that the parties desired or intended the result prayed for where, as here, conduct and oral statements are claimed to create a promise of job security implied in fact. [Id., p 644. Emphasis added.]

Consequently, we find no evidence from which reasonable minds could find that there was mutual assent on a term of employment terminable only for cause. [Id., p 646. Emphasis added.]

"[W]e find objective evidence lacking.” Id., p 643. "[N]o objective evidence exists.” Id. "[Objective support for the oral representations.” Id., p 644. "[Objective support was lacking.” Id.

But, as acknowledged in Darlington v General Electric, 350 Pa Super 183, 200; 504 A2d 306 (1986), quoted with approval in the concurring opinion, the " 'sufficient additional consideration’ ” validation device "may be nothing more than a legal fiction . . . .”

Montgomery Ward did not assert or seek to establish, at trial or on appeal, that Harryman did not have authority to promise Rowe employment as long as she was able to sell, or to enter into a contract of employment with her on that basis.

The statement first quoted, Boyle, J., ante, p 663, that the " 'employment-at-will rule reflected a policy judgment’ ” is footnoted with a reference to §§ 4.12-4.17 of the same work. Section 4.12 contains the second statement quoted in the concurring opinion, id., p 666.

See n 7 of Professor Perritt’s work, pp 197-198, which is the sole citation in support of the second statement quoted in Justice Boyle’s opinion, p 666. "C. Fried, Contract as Promise 39 (1981) (enforcement of promises on the basis of fairness).”

Perritt, id., § 4.16, pp 207-208.

Professor Perritt continues:

A majority view of contract doctrine is to the contrary:

" 'A single and undivided consideration may be bargained for and given as the agreed equivalent of one promise or of two promises or of many promises.’ Thus there is no analytical reason why an employee’s promise to render services, or his actual rendition of services over time, may not support an employer’s promise both to pay a particular wage (for example) and to refrain from arbitrary dismissal.”

*709Thus, it is important to recognize that the issue regarding consideration in an employment contract is whether the entire package of promises made by one party is supported by consideration. Each discrete promise need not be supported by separate consideration. [Id. Emphasis added.]

This becomes clear if one reads in context the words quoted from Professor Epstein’s article:

Riley, J., ante, p 643.

The only record evidence concerning "company policy” was Harryman’s testimony, tending to support Rowe’s assertion that she was promised that she would have a job as long as she sold, "that’s the way we used to hire our people.”

Riley, J., ante, p 643.

Id.

I acknowledge that the opinion in Toussaint, supra, p 612, states that Ebling and Toussaint "negotiated specifically regarding job security with the persons who interviewed and hired them.” It would have been more precise to have said Ebling "negotiated” and Toussaint "inquired” about job security.

Boyle, J., ante, p 663, n 4.

Clarity, specificity, and lack of ambiguity of oral statements. The statement "as long as I sold, I would have a job at Montgomery Ward” is terse, but surely clear, specific, and unambiguous. As in Caplis, supra, p 594 (part ii-f, preceding, n 34), the oral terms were "plain terms of contingent but determinative duration. That is certain in law which can be made certain.” (Emphasis added.)

Harryman testified that he described what constituted "selling.” He said that sales persons were generally expected to generate roughly $2,000 a week or more in sales. Clearly, the question what constituted "selling” was not left at large. The contract was clear, specific, and unambiguous insofar as what constituted "selling.”

Nor was there ambiguity or an absence of clarity or specificity regarding the grounds for termination. In addition to Harryman’s spelling out the work performance expected of Rowe — selling sufficient merchandise to make her weekly draw — the Rules of Personal Conduct provided that she would be immediately dismissed for "[t]heft, [destruction or misappropriation of property, [violation of accepted moral standards, [mjanipulating, altering or falsifying Company records (including employment application), or [dishonesty of any kind.”

The terms of the contract of employment were, thus, clear and specific, and there was no ambiguity.

Whether there were specifíc negotiations for job security. While the record does not indicate whether it was Rowe or Harryman who brought up the question of job security, the question of job security was discussed and the subject of a writing, the Rules of Personal Conduct signed by Rowe.

Whether, if policy statements are relied on, they support or undercut a reasonable belief that a promise of job security was being extended. The Rules of Personal Conduct signed by Rowe spoke of "[gjrowth, [pjrofit, [s]ecurity,” and "Successful career” (emphasis added) and stated that theft and other dishonesty could result in immediate dismissal. The Rules of Personal Conduct tended to reinforce the oral promise of job security.

Boyle, J., ante, p 667.

See ns 50, 45, and 53.

Riley, J., ante, p 646.

While Rowe’s brief did not claim rights under the 1983 manual or handbook, she did assert that the 1982 handbook provided a separate basis for her "objective expectancy that she would not be terminated except for cause”:

It is Plaintiff’s contention that the 1982 handbook is a reiteration of the "for cause” policy first established by Mr. Harryman’s statement and the 1976 personal rules of conduct. This means that there are three separate bases for Ms. Rowe’s objective expectancy that she would not be terminated except for cause, i.e., the oral statements, the 1976 Personal Rules of Conduct (Exhibit 2), and the 1982 handbook (Exhibit 10).

The mere assertion that the 1982 handbook provided one of three separate bases for Rowe’s "objective expectancy” without any supporting argument or advocacy whatsoever did not raise the issue dealt with in part ii, and does not provide an appropriate basis for a pronouncement by this Court on an issue pending in a separate application for leave to appeal in this Court where there is adversary briefing.

The court rules require that a brief contain a "statement of questions involved . . . .” MCR 7.212(C); MCR 7.306(A). Neither Rowe’s application for leave to appeal nor her brief on appeal in this Court stated as a question presented for review (MCR 7.302[A][l][b]) or involved whether the jury’s verdict in her favor could be sustained solely on the basis of the 1982 handbook.

It is well established that this Court will not ordinarily review questions not separately stated in the statement of the questions presented for review or where leave to appeal has been granted in the statement of questions involved. See 7A Callaghan’s Michigan Pleading & Practice (2d ed), § 57.24, p 305.

Plaintiff readily admits that Defendant published new handbooks in 1983. She denies that it was intended that she be bound by the new employment terms specifically addressed to "new employees.” The jury was shown the 1983 handbook and defendant argued that the "at will” language contained therein was to apply to all employees, including Plaintiff. The Court of Appeals in Langeland v Bronson Methodist Hosp, 178 Mich App 612; 444 NW2d 146 [1989], lv den 433 Mich [915] (1989), addressed the issue of conflicting language in a policy manual. In Langeland, supra, the manual contained both "at-will” and "just cause” language. The Court, citing Dalton v Herbruck Egg Sales Corp, 164 Mich App 543; 417 NW2d 496 (1987) stated that a jury question exists when the stated termination policies of an employer contain expressions of both "at-will” and "just cause” employment.

While Rowe did refer to Court of Appeals decisions, Langeland and *718Dalton, that address the issue dealt with in part n of the lead opinion, it is clear from the foregoing that Rowe was not seeking to predicate a right of recovery on the basis of the 1983 manual or handbook, but rather stated an alternative reason for finding that the 1983 manual or handbook did not apply to her.

Rowe’s brief also asserted that, assuming the "at-will” language in the 1983 handbook applied to her, which she denied, Montgomery Ward did not provide her with reasonable notice of its "attempted unilateral change to an 'at-will’ policy.” This argument was prompted by this Court’s decision in In re Certified Question, Bankey v Storer Broadcasting Co, 432 Mich 438; 443 NW2d 112 (1989), decided after the decision by the Court of Appeals in the instant case.

Rowe observed that in Certiñed Question, this Court said that " 'reasonable notice of the change must be uniformly given to the affected employees.’” It is apparent that Rowe was concerned that this Court might extend the concept set forth in Certiñed Question, permitting unilateral change of a policy manual, to a unilateral change of an express contract.

See Preston v Claridge Hotel & Casino, 231 NJ Super 81; 555 A2d 12 (1989), where, on the facts, the court found a disclaimer in a revised employee handbook to be ineffective. See also McDonald v Mobil Coal Producing, Inc, 789 P2d 866 (Wyo, 1990).

In Hett v Duffy, 346 Mich 456, 461-462; 78 NW2d 284 (1956), this Court said:

It is true that the plaintiff has not raised the question here and has not cross-appealed. Under the circumstances, anything this Court might now say on the question of law as to presumption of due care would not be controlling of decision. On the contrary, our conclusion here that plaintiff’s decedent was guilty of contributory negligence as a matter of law controls the outcome, and any discussion of the issue of presumption of due care would merely be obiter dicta.

"Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, are, however illuminating, but obiter dicta and lack the force of an adjudication.” People v Case (syllabus), 220 Mich 379 [190 NW 289 (1922)].

See, also, Robinson v Gordon Oil Co, 266 Mich 65, 71 [253 NW 218 (1934)]. [Emphasis added.]

Rowe v. Montgomery Ward & Co.

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