Dow v. Shoe Corporation of America, 12840.
| Decision Date | 21 April 1960 |
| Docket Number | No. 12840.,12840. |
| Citation | 276 F.2d 165 |
| Parties | John DOW, Plaintiff-Appellant, v. SHOE CORPORATION OF AMERICA et al., Defendants, Mid-States Shoe Company, a Wisconsin corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Bernard E. Wall, Bloomington, Ill., Roger H. Little, Urbana, Ill., Wall & Ulbrich, Bloomington, Ill., for appellant.
Lyle W. Allen, Peoria, Ill., Clarence W. Heyl, William J. Voelker, Jr., Peoria, Ill., Heyl, Royster & Voelker, Peoria, Ill., of counsel, for appellees.
Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and JUERGENS, District Judge.
John Dow, plaintiff, a shoe manufacturer's salesman, in count III of his amended complaint, sued Mid-States Shoe Company, a Wisconsin corporation, and others not now before the court, for breach of an alleged oral contract for plaintiff's lifetime employment. On motion of Mid-States, herein also called defendant, the district court ordered a dismissal of the amended complaint1 at plaintiff's costs, for failure to state a cause of action, and this appeal followed.
Substantively the law of Wisconsin governs this case.
Count III alleges that on January 10, 1935, at Milwaukee, Wisconsin, during plaintiff's prior employment as a salesman for defendant's predecessor, Walter Booth Shoe Company, the latter agreed to employ plaintiff as salesman for life at a six percent commission. Three alternative allegations of the terms of this alleged agreement are also stated in count III.
This count also avers that this contract was entered into on behalf of defendant's predecessor, by and through its duly authorized agent and employee Harold Leiser, its then sales manager, acting within the scope of his employment, or, in the alternative, purporting to act within said scope, which contract was ratified and affirmed by the predecessor and was thereafter assumed or ratified and affirmed by defendant.
It is alleged that plaintiff from January 10, 1935 to September 30, 1957, duly performed his duties under said employment contract and remains ready, willing and able to perform such agreement, but that on or about the latter date defendant wrongfully refused to employ him for the remainder of the period thereunder.
1. Contending that the agreement sued on is void under the statute of frauds, defendant quotes from the Wisconsin statute, sec. 241.02, ch. 241, Wis.Stat.1955:
However, we are mindful of the fact that, when the contract involved in this case was made, the...
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Hodge v. Evans Financial Corp.
...650, 239 S.E.2d 118 (1977) (lifetime employment); Rua v. Bowyer Smokeless Coal Co., 84 W.Va. 47, 99 S.E. 213 (1919); Dow v. Shoe Corp. of Am., 276 F.2d 165 (7th Cir.1960) (Wisconsin law) (permanent or lifetime employment).2 In Easter v. Kass-Berger, Inc., 121 A.2d 868, 871 (D.C.1956), for e......
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Hodge v. Evans Financial Corp.
...239 S.E.2d 118 (1977) (lifetime employment); Rua v. Bowyer Smokeless Coal Co., 84 W.Va. 47, 99 S.E. 213 (1919); Dow v. Shoe Corp. of America, 276 F.2d 165 (7th Cir.1960) (Wisconsin law) (lifetime employment).3 In Easter v. Kass-Berger, Inc., 121 A.2d 868, 870 (D.C.Mun.App.1956), for example......
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Batiste v. Burke
...us. Objection to raising a defense by motion may be waived if the non-movant responds to the merits of the motion. Dow v. Shoe Corp. of America, 276 F.2d 165 (7th Cir.1960). We, therefore, consider Burke's defense to have been properly before us.2 This was properly done by the authority of ......
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Halsell v. Kimberly-Clark Corp., LR-76-C-208.
...of the parties to the contract might die within the period of one year from the inception of the contract. See Dow v. Shoe Corporation of America, 276 F.2d 165 (6th Cir. 1960), an Illinois case in which Wisconsin substantive law was applied and interpreted. See also Nelson v. Farmers Mutual......