Cleasby v. Leo A. Daly Co., 84-357

• Citation: 376 N.W.2d 312,221 Neb. 254
• Decision Date: 15 November 1985
• Docket Number: No. 84-357,84-357
• Parties: Richard L. CLEASBY, Appellant and Cross-Appellee, v. LEO A. DALY COMPANY, Appellee and Cross-Appellant.
• Court: Supreme Court of Nebraska

Page 312

376 N.W.2d 312

221 Neb. 254

Richard L. CLEASBY, Appellant and Cross-Appellee, v. LEO A. DALY COMPANY, Appellee and Cross-Appellant.

No. 84-357.

Supreme Court of Nebraska.

Nov. 15, 1985.

Syllabus by the Court

1. Contracts. Three tests are appropriately applied to determine if a transaction has been completely integrated: (1)

Was the written contract complete; did it include the whole or only a part of the transaction? (2) Does the evidence outside the writing vary or controvert the written terms? (3) Was the writing intended to cover the whole transaction, as shown by the conduct and language of the parties and the surrounding circumstances?

2. Courts: Contracts. The court, not the jury, decides as a preliminary matter the extent to which a transaction is embodied in the writing.

3. Employer and Employee: Termination of Employment. The refusal of an employer to allow an employee to perform the duties required of him by his employment amounts to his dismissal from such employment.

4. Directed Verdict. A motion for a directed verdict must, for the purpose of decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

5. Directed Verdict. Where the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the court to decide the question as a matter of law rather than to submit it to a jury for determination.

6. Employer and Employee: Contracts. In a personal service contract there is an implied condition that the employee will be able to perform at the time stipulated for performance.

7. Contracts. Where, after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.

David J. Lanphier and Robert M. Gonderinger of McGill, Koley, Parsonage & Lanphier, P.C., Omaha, for appellant.

Martin A. Cannon of Matthews & Cannon, Omaha, P.C., for appellee.

KRIVOSHA, C.J., WHITE, and HASTINGS, JJ., and CHEUVRONT, District Judge, and COLWELL, District Judge, Retired.

COLWELL, District Judge, Retired.

This is a damage suit for breach of a contract for overseas personal services brought by Richard L. Cleasby against his employer, Leo A. Daly Company (Daly). A jury awarded Cleasby $5,346; he appeals. Daly cross-appeals, claiming as error the denial of its motion for directed verdict.

Daly is an international architectural consulting firm based in Omaha, Nebraska. In 1981 the Saudi Arabian National Guard contracted with a French firm, Dumez, to design and build a new city for about 40,000 personnel and related families, costing $972 million. Saudi Consulting House (SCH), a governmental agency having an architectural license available only to citizens, contracted with the National Guard to supervise construction and design. SCH contracted with Daly, as an associate, to perform those duties, with Daly as the major performer; SCH and the National Guard reserved some controls, and, generally, their wishes were respected. Daly was required to provide for approval a list of all permanent personnel and their job assignments, which included Cleasby. Approval of replacements was also required. Except for vacation time, all assigned personnel were required to be working full time at the jobsite. Temporary absences were approved informally.

In April 1981 Daly solicited Cleasby's services as project manager--Cleasby had an established work background in the field of personnel management--he accepted the offer contained in a four-page letter dated May 15, 1981. The first page provides:

This letter is a confirmation of our understanding with you in regard to your joining the staff of LEO A. DALY and being assigned to the National Guard Housing Project at Khashm-Al-An near Riyadh, Saudi Arabia. This specific assignment is for a two-year period, but it is hoped that by mutual agreement between you and our firm that your association with us will be extended either in Riyadh or in another location.

Our office in Riyadh is known as SAUDI CONSULTING HOUSE--LEO A. DALY (SCH/LAD), A PROFESSIONAL ASSOCIATION. This is an association between LEO A. DALY and SAUDI CONSULTING HOUSE, a consulting engineering organization owned by the Saudi Arabian government. For purposes of administration all of our personnel assigned to Saudi Arabia are accountable to the General Manager for Leo A. Daly affairs in Saudi Arabia, Mr. Roy L. Follmuth.

The position offered to you is for Project Manager. The work schedule will be 48 hours per week.

                 Salary
                The compensation for this position is as follows
                                            per annum
                                            (effect. 29 Aug
                Salary           US$54,000  '81)
                                            per annum
                                            (payable upon
                k Completion                completion of
                Bonus of 15% of             24 months
                Total Salary         8,100  employment)
                                 ---------
                  Total          US$62,100  per annum
                

Following page 1 are general benefits and requirements including automatic banking of paychecks, free living accommodations, paid travel and shipment of personal property, paid stateside storage of household goods, insurance and medical benefits including evacuation to and treatment in London for major illness, furnished auto, profit-sharing plan, income tax benefits (foreign), immigration procedures, and a physical examination requirement. Also included:

Vacation and Rest and Recreation (R & R)

Regarding vacation and recreation leave (R & R), after 12 months we provide four weeks leave, together with a round-trip economy air fare to the point of origin; R & R leave of one week together with round-trip air fare to London (or equivalent) following 6 and 18 months on the job....

Force Majeure

We must, of necessity, reserve the right to interrupt or discontinue overseas assignments upon the occurrence of unforeseen or unexpected conditions such as termination of the Client's project, war, incurrection [sic], and the like.

In directing its overseas promotional efforts, LEO A. DALY is careful to consider the implications of work performance in foreign locations. Conditions affecting admission, language, customs, accommodation, travel, food, health, and personal safety are among the factors regularly evaluated.

The 2-year term began August 29, 1981. It is noted that the written contract provided employment for Cleasby on the staff of Daly as well as a special assignment overseas, and the evidence shows that Daly honored the staff employment.

For technical reasons Cleasby signed the contract after arrival in Saudi Arabia, backdating it to May 16, 1981, as instructed. Prior to August 29 Cleasby acquainted himself with the project and his duties, including a trip to Saudi Arabia. Cleasby described his duties as the supervisor of all construction inspectors and technicians, on behalf of the National Guard, to ensure contract compliance. Daly had about 35 persons on the job. All parties agree that the project manager was a key position imposing much responsibility for the day-to-day operation and success of the entire project and Daly's performance of its agreement with SCH. The job required personal performance.

Cleasby performed his assigned duties without reported incident or complaint until April 9, 1982, when he took R and R to Greece, where he suffered a gastrointestinal ailment. This was followed by treatment in London, England, until May 28, 1982, when he was returned to Omaha, Nebraska. His recovery was not completed until July 6, 1982, when Dr. Joseph Holthaus released him to return to his duties.

When Cleasby left on R and R, his duties were temporarily assumed by a Daly employee, Errol Dierks. Due to Cleasby's illness, Daly hurriedly dispatched an Omaha employee, Scott Rynearson, to temporarily assume the project manager duties. Since he was one of the original planners, he had a full understanding of the project. Upon the further-delayed recovery, Rynearson's satisfactory performance, and the need for an onsite manager, arrangements were made with SCH to approve Rynearson as the permanent project manager, which, after some delay, was finalized on August 16, 1982.

About June 28, 1982, Cleasby conferred with his immediate superior, Vice President Robert Ramsey, concerning his job status. Ramsey told him that he was discharged and that he would not be returning to Saudi Arabia, giving as reasons that he had been away a long time, everybody was extremely pleased with Rynearson's performance, and it would be inappropriate to replace Rynearson. On July 6, 1982, Cleasby conferred with John Free, senior vice president, who told him that he was not discharged but that he would not be returned to his job and that they would find a place for him in their organization. On July 16, 1982, there was a further discussion with both Ramsey and Free; he was again told that he would not be returned to Saudi Arabia, the previous reasons were again discussed, and, in addition, administrative and personnel problems and unsatisfactory job performance were suggested as other reasons. Particularly, Cleasby was told that his return required the approval and consent of Dr. Nassif, resident manager of SCH, who would not be available for consultation until about September 15, 1982. There was some evidence that a request had been made for a visa permitting Cleasby to return to Saudi Arabia.

There were no further business contacts with Daly. Cleasby's overseas salary was restored, but...