Bussard v. College of St. Thomas, Inc.

• Decision Date: 28 July 1972
• Docket Number: No. 43281,43281
• Citation: 200 N.W.2d 155,294 Minn. 215
• Parties: , 115 L.R.R.M. (BNA) 4586 Reverend Paul BUSSARD, Appellant, v. COLLEGE OF SAINT THOMAS, INC., d.b.a. the Catholic Digest, Respondent.
• Court: Minnesota Supreme Court

Page 155

200 N.W.2d 155

294 Minn. 215, 115 L.R.R.M. (BNA) 4586

Reverend Paul BUSSARD, Appellant, v. COLLEGE OF SAINT THOMAS, INC., d.b.a. the Catholic Digest, Respondent.

No. 43281.

Supreme Court of Minnesota.

July 28, 1972.

Rehearing Denied Sept. 13, 1972.

Syllabus by the Court

1. A contract for permanent employment is not terminable at the will of the employer where the employee in effect purchases the permanent employment by furnishing a valuable consideration other than his customary daily services or otherwise giving up more than one normally gives up when he agrees to take on a new employment.

2. The statute of frauds does not bar an oral contract for permanent employment.

3. The parol evidence rule does not bar proof of an oral contract for permanent employment under the unique circumstance of this case.

4. a. A party's arguably vague deposition testimony that does not plainly disavow a claimed oral agreement does not preclude him under the 'party preclusion rule' from proving the alleged oral agreement.

b. The fact that parties to an oral contract of employment do not state a definite period does not compel a summary determination that they did not agree that the employee could continue his employment for as long as he wished.

5. An employee who establishes that his employer agreed to employ him for as long as the employee wished and not to discharge him without cause may recover damages for breach of such an agreement, but may not obtain specific performance of the agreement.

James R. McClure, St. Paul, David L. Graven, Minneapolis, for appellant.

Moore, Costello & Hart and A. Patrick Leighton, St. Paul, for respondent.

Heard before KNUTSON, C.J., and ROGOSHESKE, PETERSON, and KELLY, JJ.

PETERSON, Justice.

Plaintiff, the Reverend Paul Bussard, brought this action against defendant, the College of St. Thomas, seeking alternative forms of relief for breach of an alleged oral condition to a gift made under written contract, and appeals from summary judgment in favor of defendant. Plaintiff mainly contends: First, that the trial court improperly held that the parol evidence rule would prevent him from introducing evidence of the oral condition, and, second, that he made a sufficient showing, by affidavits, documents, and deposition testimony, of the alleged oral condition to create a genuine issue of material fact. The nature of these contentions requires a factual recital of some detail.

Plaintiff, along with two other Catholic clergymen, Reverend Louis A. Gales and a Reverend Jennings, founded the Catholic Digest Magazine (hereafter Digest) in 1936 as a private profit-making corporation. From the outset, plaintiff took an active role in its operation and acted as publisher and editor of the Digest. Initially plaintiff owned 25 percent of the stock; Father Jennings, 10 percent; and Father Gales, 65 percent. Plaintiff later acquired Father Jennings' interest.

In the mid-1950's Father Gales indicated to plaintiff that he would like to sell his interest and devote the proceeds to other projects in which he had a personal interest. Plaintiff and Father Gales accordingly entered into a written agreement providing that plaintiff should act for both parties in attempting to sell the Digest; and during the ensuing 8 years or so plaintiff negotiated with a number of different parties in attempting to sell the Digest. Although these negotiations were unsuccessful for lack of a satisfactory offer, the negotiating parties were always in agreement that, if the Digest were sold, the purchaser would continue plaintiff on as its publisher.

In mid-1963 plaintiff almost reached agreement with Meredith Publishing Co. of Des Moines, Iowa. A professional audit completed in July 1963 valued the Digest as $1.5 million. Meredith proposed to buy the Digest and operate it as a subsidiary corporation with plaintiff remaining as publisher. Before plaintiff and Meredith could reach a final agreement, however, they learned that plaintiff's superior, Archbishop Leo Binz, wanted the Digest to be placed on a nonprofit basis. Meredith then abandoned its plans to acquire the Digest and operate it as a subsidiary.

In November 1963 plaintiff wrote a letter to the Right Reverend Monsignor James P. Shannon, then president of St. Thomas, suggesting the possibility of the college owning the Digest, and a month later, through his agent, suggested to Archbishop Binz a plan whereby Meredith would purchase the Digest stock and donate it to St. Thomas in return for St. Thomas granting the Digest printing contract to Meredith.

On January 6 and 7, 1964, plaintiff met with lawyers for Meredith to discuss ways of effecting the transition of the Digest from a profit to a nonprofit corporation. As a result of these discussions plaintiff agreed to submit a detailed proposal to Meredith. He proposed that Meredith would agree to finance the transfer of the Digest stock to St. Thomas, which would operate the Digest on a nonprofit basis, and that St. Thomas would agree to a 15-year printing contract with Meredith and, in addition, would agree to retain plaintiff as publisher, in charge of all editing and management of the Digest for the same 15-year period.

On January 21, 1964, the Right Reverend Monsignor Patrick J. Ryan, who acted as plaintiff's agent, met with Archbishop Binz, Monsignor Shannon, and the Right Reverend Monsignor Terrence J. Murphy. At this meeting the Archbishop indicated that any final plan would have to meet with his personal approval as well as that of the Board of Trustees of the College of St. Thomas. Monsignor Ryan indicated to the Archbishop that the printing contract with Meredith would continue only until St. Thomas had repaid a contemplated loan of $1 million from Meredith for the purchase of the Digest stock. He indicated that plaintiff and probably Father Gales would be willing to donate to the college that portion of their Digest stock which exceeded the amount of that loan, so that the printing contract to Meredith would be of shorter duration than the previously proposed 15-year period. A memorandum which Monsignor Ryan prepared following the meeting stated:

'The Archbishop paid high compliment to Father Bussard because of his dedication to the work of the Catholic Digest and for his abiding interest in the College of St. Thomas. He also pointed out Father Bussard's demonstrated ability and experience as a publisher and indicated that in his judgment the College of St. Thomas would require the services of Father Bussard in the capacity of the publisher for several years to assure the continued excellence of the magazine. Monsignor Shannon indicated his complete agreement with this statement and Monsignor Ryan assured the group that such an arrangement would meet with the approval of Father Bussard. His Excellency also raised certain questions as to what staff members are protected in their jobs.'

The parties concluded the meeting with an understanding that the Digest owners would continue to negotiate with Meredith to clarify several elements of the proposal and that the Archbishop would discuss with Father Gales a reduction in his share of the Meredith loan in the same proportion as plaintiff would reduce his share. Upon receiving this memorandum, plaintiff reviewed it and raised no objection concerning it.

In March 1964 plaintiff, Monsignor Shannon, representatives of Meredith, and several others met to discuss the proposal in detail, and all parties present accepted plaintiff's condition that he remain as publisher for the full term of the Meredith loan. The transaction was never completed, due to a disagreement between St. Thomas and Meredith over an issue of whether certain Digest-owned real estate would be used as security for the contemplated loan.

Thereafter, plaintiff conducted negotiations directly with St. Thomas which resulted in an agreement, dated May 30, 1964, whereby plaintiff agreed to give part of his stock, valued at $350,000, to the college as part of an arrangement whereby the college agreed to purchase the balance of plaintiff's stock for $175,000 with interest to be paid over a 10-year period.

Plaintiff contends that in negotiations leading up to the May 30, 1964, agreement, defendant college orally assented to a stipulation that the gift would be conditioned upon plaintiff's remaining as publisher of the Digest.

At his deposition plaintiff in these words acknowledged that he had never in his oral negotiations with the college itself explicitly stated that his gift was to be conditioned upon his continuing as publisher:

'Q. * * * As I understand it these conversations relative to your continuing as publisher were never discussed in terms of I am making this transfer based upon your assurances that I can stay as publisher?

'A. Except they were--except for this, that there was always a negative unexpressed thing in my mind that if I would have been discontinued as publisher I would not have made the transfer. Under any other conditions I would have done anything except to transfer the company to the college or to any other company and not remain--not have my authority as publisher remain because I knew how to do it and they didn't.

'Q. This is something that existed in your own mind, Father?

'A. Yes. This is something in my own mind, it is an unexpressed negative argument but it is as true today as it was then.'

The inexplicit character of his answer to this vital point was explained by plaintiff in his further testimony that he had seen no reason to do otherwise since 'everyone assured me without my asking that I would be continued as publisher' and 'always I got the big promise that I would be so I had no reason to express it.' Testimony of others tended to confirm that explanation.

On May 21, 1964, Monsignor Shannon presented the proposed acquisition to the college's board of trustees for approval. A summary of his remarks to the board included this statement: 'The...