Johnson v. Green Bay Packers

• Decision Date: 07 February 1956
• Citation: 272 Wis. 149,74 N.W.2d 784
• Parties: Clyde JOHNSON, Respondent, v. The GREEN BAY PACKERS, Inc., a Wis. corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 784

74 N.W.2d 784

272 Wis. 149

Clyde JOHNSON, Respondent, v. The GREEN BAY PACKERS, Inc., a Wis. corporation, Appellant.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Rehearing Denied April 3, 1956.

Welsh, Trowbridge, Wilmer & Bills, Green Bay, for appellant.

Kaftan, Kaftan & Kaftan, Green Bay, for respondent.

CURRIE, Justice.

The following issues are raised on this appeal:

(1) Whether reformation may be decreed to delete a provision in a contract, where such provision was left in the contract with the consent of the aggrieved party, even though such consent was obtained in reliance upon a contemporaneous oral promise which was not kept;

(2) Whether the judgment in behalf of Johnson can be affirmed on the ground set forth in plaintiff's second cause of action, i. e., that the trial court should have enforced the contract as written giving effect to the written portion over the conflicting printed paragraph 6;

(3) Whether the trial court erred in holding that the burden of proving discharge for cause was upon the defendant;

(4) Whether plaintiff's causes of action are barred because of his failure to submit the dispute for arbitration to the commissioner of the league.

Without dispute, it appears from the facts found by the trial court that, when Johnson in the summer of 1948 received back his copy of the contract of employment, he at once discovered that paragraph 6 thereof had not been deleted as agreed between the parties, and that he immediately called the matter to Lambeau's attention. Lambeau then explained to Johnson that paragraph 6 had not been deleted because the league commissioner did not like contracts with parts crossed out, but assured Johnson that the original agreement for a 'season' contract for the years 1948 and 1949 would be lived up to. Upon such verbal assurance from Lambeau, Johnson did not renew his request that paragraph 6 be deleted but entered into employment with such paragraph still in the contract.

In Touchett v. EZ Paintr Corp., 1953, 263 Wis. 626, at page 630, 58 N.W.2d 448, 450, 59 N.W.2d 433, this court had before it a cause of action for reformation of contract, and in its opinion stated:

'There is a further rule of law that the court will not insert a provision in a contract which was omitted with the consent of the parties asking for reformation, although such consent was given in reliance on an oral promise of the other party that the omission would not make any difference.'

We consider the above quoted principle to be equally applicable to the facts in the instant case. The fact that here we are concerned with the failure to delete a clause necessary to conform the written contract to the prior verbal understanding of the parties, while in the Touchett case the written contract failed to include a paragraph covering a matter previously agreed upon by the parties in parol, we deem to be of no significance. In both situations the aggrieved party accepted the contract as written and entered into performance thereof upon the oral promise of the other party that the failure of the contract to read as agreed would not make any difference. We, therefore, conclude that it was error for the trial court to have decreed reformation of the contract by ordering the deletion of paragraph 6.

Counsel for Johnson urge that, even if the contract be not reformed so as to delete paragraph 6 thereof, the written provisions indorsed on the back of plaintiff's copy of the contract by Lambeau, being in direct conflict with the printed provisions of paragraph 6, must prevail over such printed provisions. In other words, it is urged that the trial court should have reached the same result by a proper interpretation of the contract as written.

The second cause of action, including its prayer of relief stated in the plaintiff's complaint, properly raised such issue in the trial court. Under the provisions of sec. 274.12(2), Stats. plaintiff is entitled to raise this issue on appeal without the necessity of filing any motion for review. Oelke v. Earle, 1956, 271 Wis. 479, 74 N.W.2d 336. This is because the point raised by plaintiff supports the judgment appealed from.

We deem that the point under consideration is ruled in plaintiff's favor by the case of Tollefson v. Green Bay Packers, Inc., 1950, 256 Wis. 318, 41 N.W.2d 201. Such case involved an action to recover damages for breach of contract of employment by Tollefson, a professional football player, against the same defendant as in the instant case. Most of the provisions of the contract were in printed form, as in the instant case, and Lambeau, manager of the Packers, wrote in longhand in paragraph 1, which covered the matter of Tollefson's compensation, 'minimum $3,600 for season'. Paragraph 7, one of the printed clauses of the agreement, provided that the contract might be terminated any time by the Packers giving notice in writing within 48 hours after the date of the last game in which Tollefson had participated. This court interpreted such words to mean that, unless discharged for cause, Tollefson was entitled to the full sum of $3,600 whether he participated in the games played by the Packers or not. In its opinion, this court stated, 256 Wis. at page 322, 41 N.W.2d at page 203:

'Unquestionably, absent the minimum clause, under the provisions of paragraph 7 of the contract, the defendant might have released plaintiff at any time, with or without cause. Although it was not definitely known when the contract was made how many practice games would be played, the amount stated in the minimum clause appears to have been determined from the fact that it would at least approximately compensate plaintiff for the games scheduled and planned to be played. If plaintiff had been permitted to perform fully he would have been entitled to the precise amount stated in the minimum clause. This and the mere fact that it was inserted would indicate that it was intended that it should serve some purpose. It is our view that its terms are inconsistent with the provisions of paragraph 7 of the contract. There is applicable the rule:

"Where written provisions are inconsistent with printed provisions (of a contract), an interpretation is preferred which gives effect to the written provisions.' Restatement, 1 Contracts, p. 328, sec. 236(e). See also Williston on Contracts [(rev. ed.), p. 3281], sec. 1143; Atlanta Terra Cotta Co. v. Goetzler, 150 Wis. 19, 136 N.W. 188.' (Emphasis supplied).

Lambeau in the instant case testified on his adverse examination that if the provision contained in paragraph 6 of the printed form of the contract were deleted then the contract would have constituted that which is known 'in the trade' as a 'season contract'. This corroborates Johnson's testimony that it was verbally agreed between him and Lambeau that he was to have a 'season' contract for both years 1948 and 1949 under which the Packers would have no right to terminate the same except for cause, and that the notation placed on the back of Johnson's copy of the contract in longhand by Lambeau, and initialled by him, were in order to comply with Johnson's request that he have a 'season' contract for such two years. As we view it, the only material difference in the facts of the Tollefson case and the one at bar is that the governing provision written in longhand in the former was written on the face of Tollefson's contract, while in the instant case it was written on the...