Ulmann v. Sunset-McKee Company, 13983.

• Decision Date: 14 June 1955
• Docket Number: No. 13983.,13983.
• Parties: Oscar M. ULMANN, Administrator-with Will Annexed of the Estate of Oscar Ulmann, deceased, Appellant, v. SUNSET-McKEE COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

221 F.2d 128 (1955)

Oscar M. ULMANN, Administrator-with Will Annexed of the Estate of Oscar Ulmann, deceased, Appellant, v. SUNSET-McKEE COMPANY, a corporation, Appellee.

No. 13983.

United States Court of Appeals, Ninth Circuit.

March 30, 1955.

Rehearing Denied June 14, 1955.

James Wolf, Los Angeles, Cal., for appellant.

Philip S. Ehrlich, Albert A. Axelrod, Irving Rovens, San Francisco, Cal., for appellee.

Before STEPHENS, FEE, and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

This is a diversity case. Plaintiff-appellant, Oscar M. Ulmann, is a citizen of California as was the testator, Oscar Ulmann, whom Oscar M. represents as administrator-with-the-will annexed. The defendant-appellee, Sunset-McKee Company, is organized under the laws of the State of Delaware and does business in California. The amount in controversy is just over $3,000.

To make it clear which "Ulmann" is meant, the decedent, Oscar Ulmann, a former employee of the defendant company, is referred to as "Sr." and his administrator, Oscar M. Ulmann as "Jr.," although there is no evidence that the two so designated themselves.

Ulmann, Sr. was employed as a salesman for the company for 23 years. He left the active service of the company on February 28, 1951, and he died on April 28, 1952. It appears that he had worked for the company in a territory in Northern California, in or near San Francisco.

Through the years of active work, Ulmann, Sr., had no real written employment contract. Further, it is evident that the company had no general retirement plan of its own. Compensation, if any, after retirement seems to have been dependent on whatever bounty the company desired to grant at the time of the commencement of retirement. Generally, however, employees of the class of Ulmann, Sr., seem to have been paid or given something after they ceased their activity with the business.

There is evidence that Ulmann, Sr., in 1950, asked his superiors if they could do anything for him if he should retire. Conversations resulted in the exchange of the following letters:

"(Sunset-McKee Letterhead) "November 21, 1950 "Mr. Oscar Ulmann "252 Wildwood Avenue "Piedmont, California "Dear Oscar:

"You have expressed the desire to retire from active duty at some future date.

"Your request has been discussed at a recent meeting of our Sales Advisory Committee, and it was agreed by this committee that, upon retirement, we would send you $150.00 per month for a period of three years. This amount would be considered as a pension and your Blue Cross and Aetna Insurance would continue in full force. You would, however, under the terms of our arrangements with these Insurance companies, contribute your share as you have done while on active duty.

"We are glad that we are able to advise you of this arrangement.

"With kindest personal regards I remain —

"Very truly yours "Sunset-McKee Company "/s/ E. R. McKeag "General Sales Manager" "(Sunset-McKee Letterhead) "San Francisco, Feb. 16, 1951 "To: A. Wittman, Controller "Office: Oakland, Calif "Copy to: E. R. McKeag

"Please be advised that as of February 28th I am retiring from active service with the company and accepting the $150 per month retirement pay, as per letter of November 21, 1950.

"Will thank you to change my address on your records, for mailing of the above check and any other mail to read `11420 National Blvd., Los Angeles 64, Calif.\' Thanking you and all with the company for many past favors and with kindest regards to all, I am,

"Sincerely "/s/ Oscar Ulmann" "(Letterhead of Sunset-McKee) "February 21, 1951

"Dear Oscar:

"We have your letter of February 16, 1951 advising us that as of February 28, 1951 you are retiring from active service with the Company and are accepting the retirement offer contained in our letter of November 21, 1950.

"I am dropping you this note, Oscar, as Mr. McKeag is out of the city and will not return until March 5th. I am sure he will want to write you after he returns.

"In the meantime, we are advising our Accounting Department to put into effect the plan as outlined in our November 21st letter.

"I hope that when you are again in this vicinity you will drop around to see us.

"With kindest personal regards, I am,

"Cordially yours, "/s/Walter "Walter S. Arndt, Jr., "Assistant General Sales Manager "Mr. Oscar Ulmann "San Francisco, Calif. "cc: McKeag"

Ulmann, Sr., ceased active work for the company at the end of February, 1951. Thereafter, the company remitted $150 (less the specified deductions) to Ulmann, Sr., until the time of his death. Thereupon this controversy began. Ulmann, Jr., asserted the company should make the payments remaining to him as administrator-with-the-will annexed for the unexpired portion of three years. The company replied that the payments were pure gratuity, but that if the contract were binding, it was personal to the decedent and expired with his life.

The evidence before the trial court consisted of a stipulation of facts, the exchange of letters hereinabove set forth, and the testimony of E. R. McKeag, sales manager of Sunset-McKee. The stipulation relates that during the course of his employment, Ulmann, Sr., had "protected accounts" to whom he alone sold the products of his company. At the time of severance from active service, says the stipulation, the company advised Ulmann, Sr., he would receive the pension so long as he did not compete with Sunset-McKee. Such a promise on the part of Ulmann, Sr., perhaps is implied under California law anyway. In the light of the stipulation of facts the trial court was entitled to find the sum total of Ulmann's rights in both written and oral agreements between Ulmann, Sr., provided it was not shown that the letters were comprehensive and intended to supersede the oral understandings. Parties may have their obligations on the same subject matter partly in writing and partly oral, if they so intend. After the stipulation the defendant was in no position to limit plaintiff to the exchange of letters. Further, it can be said, on the whole, the parties attempted to give the court all pertinent facts for its appraisal. McKeag testified fully for the defendant as to negotiations and this was without objection by plaintiff.¹

The decision of this court necessarily involves a construction of the letters, consideration of the stipulation of the parties and the testimony of McKeag. In this the trial court has the usual presumptions of correctness.

The trial court concluded that Sunset-McKee made no binding obligation to Ulmann, Sr., but that if there were any obligation to pay Ulmann, Sr., it died with him. Plaintiff appealed.

Plaintiff asserted below and asserts here that there was an estoppel which forbade Sunset-McKee from denying consideration. Facts of estoppel which he said were present are: (1) that Ulmann, Sr., retired and took less pay than he could have received by staying on and working; and (2) that Ulmann, Sr., had agreed he would not compete with the company after leaving, a promise he kept.

Point (1) would have some validity if there had been some preceding basic employment contract. Point (2) need not be considered as a matter of estoppel in view of the determination the court makes that there actually was consideration for the undertaking to pay $150 per month for 36 months,² which consideration included either an express or implied obligation not to compete or not to shift, within his (Ulmann's) ability, these customers to others.

As previously indicated, Ulmann, Sr., had had no written contract...