305 N.Y. 48 (1953)

Nate L. Crabtree, Respondent,
v.
Elizabeth Arden Sales Corporation, Appellant.

Court of Appeals of the State of New York.
Submitted November 25, 1952.
Decided January 21, 1953.

Crabtree v. Elizabeth Arden Sales Corp., 279 App. Div. 992, affirmed.

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 23, 1952, affirming, by a divided court, a judgment of the Supreme Court in favor of plaintiff, entered in New York County upon a decision of the court at a Trial Term (RABIN, J.), without a jury.

J. Howard Carter, John R. Schoemer, Jr., John J. Macchia and Arthur W. Knapp, Jr., for appellant.

I.

There is no written memorandum of plaintiff's alleged contract of employment sufficient to satisfy the Statute of Frauds. (Carter, Macy Co. v. Matthews, 220 App. Div. 679; Brauer v. Oceanic Steam Navigation Co., 178 N. Y. 339; Friedman & Co. v. Newman, 255N. Y. 340; Standard Oil Co. v. Koch, 260 N. Y. 150; United Press v. New York Press Co., 164 N. Y. 406; Culotta v. Banana Sales Corp., 142 Misc. 149; Watson v. Gugino, 204 N. Y. 535; Martin v. New York Life Ins. Co., 148 N. Y. 117; Miller v. Burlington Mills Ribbon Corp., 304 N. Y. 600; Mesibov, Glinert & Levy v. Cohen Bros. Mfg. Co., 245 N. Y. 305.)

II.

The court below adopted an erroneous measure of damages. (Toplitz v. Ullman, 2 Misc. 130; Griffin v. Oklahoma Nat. Gas Corp., 132 Kan. 843.)

Frank A. Fritz, Frank H. Platt, George Q. Slocum and Anthony T. Antinozzi for respondent.

I.

Plaintiff's employment was for a definite term and did not constitute an employment at will. (Braxton v. Mendelson, 233 N. Y. 122; Ferguson v. De Witt, 230 App. Div. 778; Fellows v. Fairbanks Co., 205 App. Div. 271; Aerated Products Co. v. Godfrey, 290 N. Y. 92; Matter of Aurelio [Cohen] 291 N. Y. 176; Drivas v. Lekas, 292 N. Y. 204; Gressing v. Musical Instrument Sales Co., 222 N. Y. 215; Mason v. New York Produce Exch., 127 App. Div. 282; Breakey v. Lake Placid Co., 271 App. Div. 586.)

II.

The contract of employment is evidenced by writings which together constitute a sufficient memorandum in compliance with the Statute of Frauds. (Marks v. Cowdin, 226 N. Y. 138; Spiegel v. Lowenstein, 162 App. Div. 443; Raubitschek v. Blank, 80 N. Y. 478; Webster v. Zielly, 52 Barb. 482; General Overseas Corp. v. Republic Pictures Int. Corp., 74 F. Supp. 698; Baxter v. Lustberg, 205 App. Div. 673; Doughty v. Manhattan Brass Co., 101 N. Y. 644; Coe v. Tough, 116 N. Y. 273; Delaware Mills v. Carpenter Bros., 200 App. Div. 324; Atlas Shoe Co. v. Lewis, 202 App. Div. 244.)

III.

Plaintiff exercised reasonable care to mitigate damages. There was no abandonment of the employment or waiver of defendant's breach. (Whitmarsh v. Littlefield, 46 Hun 418; Colloraff v. Hickson, Inc., 159 N. Y. S. 177; Milage v. Woodward, 186 N. Y. 252; Howard v. Daly, 61 N. Y. 362; Bassett v. French, 10 Misc. 672; Fuchs v. Koerner, 107 N. Y. 529; Briscoe v. Litt, 19 Misc. 5; McClelland v. Climax Hosiery Mills, 252 N. Y. 347; Toplitz v. Ullman, 2 Misc. 130; Richardson v. Hartmann, 68 Hun 9.)

IV.

Plaintiff is entitled prima facie to the amount of the unpaid salary for the unexpired term of the contract. (Karas v. H. R. Laboratories, 271 App. Div. 530, 297 N. Y. 494; Hollwedel v. Duffy-Mott Co., 263 N. Y. 95; Milage v. Woodward, 186 N. Y. 252; Sinclair v. Positype Corp. of America, 237 App. Div. 525; Howard v. Daly, 61 N. Y. 362; Van Wyck v. Mannino, 256 App. Div. 256; Preager v. Unity Shoemakers Corp., 257 App. Div. 632.)

FULD, J.

In September of 1947, Nate Crabtree entered into preliminary negotiations with Elizabeth Arden Sales Corporation, manufacturers and sellers of cosmetics, looking toward his employment as sales manager. Interviewed on September 26th, by Robert P. Johns, executive vice-president and general manager of the corporation, who had apprised him of the possible opening, Crabtree requested a three-year contract at $25,000 a year. Explaining that he would be giving up a secure well-paying job to take a position in an entirely new field of endeavor — which he believed would take him some years to master — he insisted upon an agreement for a definite term. And he repeated his desire for a contract for three years to Miss Elizabeth Arden, the corporation's president. When Miss Arden finally indicated that she was prepared to offer a two-year contract, based on an annual salary of $20,000 for the first six months, $25,000 for the second six months and $30,000 for the second year, plus expenses of $5,000 a year for each of those years, Crabtree replied that that offer was "interesting". Miss Arden thereupon had her personal secretary make this memorandum on a telephone order blank that happened to be at hand:

"EMPLOYMENT AGREEMENT WITH

NATE CRABTREE               Date Sept 26-1947

At 681 — 5th Ave             6: PM

                 * * *

Begin                             20000.

6 months                        25000.

6 "                                 30000.

                5000. — per year

                     Expense money

            [2 years to make good]

Arrangement with

  Mr Crabtree

By Miss Arden

Present Miss Arden

           Mr John

           Mr Crabtree

           Miss OLeary"

A few days later, Crabtree 'phoned Mr. Johns and telegraphed Miss Arden; he accepted the "invitation to join the Arden organization", and Miss Arden wired back her "welcome". When he reported for work, a "pay-roll change" card was made up and initialed by Mr. Johns, and then forwarded to the payroll department. Reciting that it was prepared on September 30, 1947, and was to be effective as of October 22d, it specified the names of the parties, Crabtree's "Job Classification" and, in addition, contained the notation that "This employee is to be paid as follows:

"First six months of employment           $20,000. per annum

Next six months of employment             25,000.   "        "

After one year of employment                30,000.   "        "

                                   Approved by RPJ [initialed]"

After six months of employment, Crabtree received the scheduled increase from $20,000 to $25,000, but the further specified increase at the end of the year was not paid. Both Mr. Johns and the comptroller of the corporation, Mr. Carstens, told Crabtree that they would attempt to straighten out the matter with Miss Arden, and, with that in mind, the comptroller prepared another "pay-roll change" card, to which his signature is appended, noting that there was to be a "Salary increase" from $25,000 to $30,000 a year, "per contractual arrangements with Miss Arden". The latter, however, refused to approve the increase and, after further fruitless discussion, plaintiff left defendant's employ and commenced this action for breach of contract.

At the ensuing trial, defendant denied the existence of any agreement to employ plaintiff for two years, and further contended that, even if one had been made, the statute of frauds barred its enforcement. The trial court found against defendant on both issues and awarded plaintiff damages of about $14,000, and the Appellate Division, two justices dissenting, affirmed. Since the contract relied upon was not to be performed within a year, the primary question for decision is whether there was a memorandum of its terms, subscribed by defendant, to satisfy the statute of frauds (Personal Property Law, § 31).^[1]

Each of the two payroll cards — the one initialed by defendant's general manager, the other signed by its comptroller — unquestionably constitutes a memorandum under the statute. That they were not prepared or signed with the intention of evidencing the contract, or that they came into existence subsequent to its execution, is of no consequence (see Marks v. Cowdin, 226 N.Y. 138, 145; Spiegel v. Lowenstein, 162 App. Div. 443, 448-449; see, also, Restatement, Contracts, §§ 209, 210, 214); it is enough, to meet the statute's demands, that they were signed with intent to authenticate the information contained therein and that such information does evidence the terms of the contract. (See Marks v. Cowdin, supra, 226 N.Y. 138; BaylesStrong, 185 N.Y. 582, affg. 104 App. Div. 153; Spiegel v. Lowenstein, supra, 162 App. Div. 443, 448; see, also, 2 Corbin on Contracts [1951], pp. 732-733, 763-764; 2 Williston on Contracts [Rev. ed., 1936], pp. 1682-1683.) Those two writings contain all of the essential terms of the contract — the parties to it, the position that plaintiff was to assume, the salary that he was to receive — except that relating to the duration of plaintiff's employment. Accordingly, we must consider whether that item, the length of the contract, may be supplied by reference to the earlier unsigned office memorandum, and, if so, whether its notation, "2 years to make good", sufficiently designates a period of employment.

The statute of frauds does not require the "memorandum to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject matter and occasion". (Marks v. Cowdin, supra, 226 N.Y. 138, 145; see, also, 2 Williston, op. cit., p. 1671; Restatement, Contracts, § 208, subd. [a].) Where each of the separate writings has been subscribed by the party to be charged, little if any difficulty is encountered. (See, e.g., Marks v. Cowdin, supra, 226 N.Y. 138, 144-145.) Where, however, some writings have been signed, and others have not — as in the case before us — there is basic disagreement as to what constitutes a sufficient connection permitting the unsigned papers to be considered as part of the statutory memorandum. The courts of some jurisdictions insist that there be a reference, of varying degrees of specificity, in the signed writing to that unsigned, and, if there is no such reference, they refuse to permit consideration of the latter in determining whether the memorandum satisfies the statute. (See, e.g., Osborn v. Phelps, 19 Conn. 63; Hewitt Grain & Provision Co. v. Spear, 222 Mich. 608.) That conclusion is based upon a construction of the statute which requires that the connection between the writings and defendant's acknowledgment of the one not subscribed, appear from examination of the papers alone, without the aid of parol evidence. The other position — which has gained increasing support over the years — is that a sufficient connection between the papers is established simply by a reference in them to the same subject matter or transaction. (See, e.g., Frost v. Alward, 176 Cal. 691; Lerned v. Wannemacher, 91 Mass. 412.) The statute is not pressed "to the extreme of a literal and rigid logic" (Marks v. Cowdin, supra, 226 N.Y. 138, 144), and oral testimony is admitted to show the connection between the documents and to establish the acquiescence, of the party to be charged, to the contents of the one unsigned. (See Beckwith v. Talbot, 95 U. S. 289; Oliver v. Hunting, 44 Ch. D. 205, 208-209; see, also, 2 Corbin, op. cit., §§ 512-518; cf. Restatement, Contracts, § 208, subd. [b], par. [iii].)

The view last expressed impresses us as the more sound, and, indeed — although several of our cases appear to have gone the other way (see, e.g., Newbery v. Wall, 65 N.Y. 484; Wilson v. Lewiston Mill Co., 150 N.Y. 314) — this court has on a number of occasions approved the rule, and we now definitively adopt it, permitting the signed and unsigned writings to be read together, provided that they clearly refer to the same subject matter or transaction. (See, e.g., Peabody v. Speyers, 56 N.Y. 230; Raubitschek v. Blank, 80 N.Y. 478; Peck v. Vandemark, 99 N.Y. 29; Coe v. Tough, 116 N.Y. 273; Delaware Mills v. Carpenter Bros., 235 N.Y. 537, affg. 200 App. Div. 324.)

The language of the statute — "Every agreement is void, unless some note or memorandum thereof be in writing, and subscribed by the party to be charged" (Personal Property Law, § 31) — does not impose the requirement that the signed acknowledgment of the contract must appear from the writings alone, unaided by oral testimony. The danger of fraud and perjury, generally attendant upon the admission of parol evidence, is at a minimum in a case such as this. None of the terms of the contract are supplied by parol. All of them must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed. Parol evidence — to portray the circumstances surrounding the making of the memorandum — serves only to connect the separate documents and to show that there was assent, by the party to be charged, to the contents of the one unsigned. If that testimony does not convincingly connect the papers, or does not show assent to the unsigned paper, it is within the province of the judge to conclude, as a matter of law, that the statute has not been satisfied. True, the possibility still remains that, by fraud or perjury, an agreement never in fact made may occasionally be enforced under the subject matter or transaction test. It is better to run that risk, though, than to deny enforcement to all agreements, merely because the signed document made no specific mention of the unsigned writing. As the United States Supreme Court declared, in sanctioning the admission of parol evidence to establish the connection between the signed and unsigned writings. "There may be cases in which it would be a violation of reason and common sense to ignore a reference which derives its significance from such [parol] proof. If there is ground for any doubt in the matter, the general rule should be enforced. But where there is no ground for doubt, its enforcement would aid, instead of discouraging, fraud." (Beckwith v. Talbot, supra, 95 U. S. 289, 292; see, also, Raubitschek v. Blank, supra, 80 N.Y. 478; Freeland v. Ritz, 154 Mass. 257, 259; Gall v. Brashier, 169 F.2d 704, 708-709; 2 Corbin, op. cit., § 512, and cases there cited.)

Turning to the writings in the case before us — the unsigned office memo, the payroll change form initialed by the general manager Johns, and the paper signed by the comptroller Carstens — it is apparent, and most patently, that all three refer on their face to the same transaction. The parties, the position to be filled by plaintiff, the salary to be paid him, are all identically set forth; it is hardly possible that such detailed information could refer to another or a different agreement. Even more, the card signed by Carstens notes that it was prepared for the purpose of a "Salary increase per contractual arrangements with Miss Arden". That certainly constitutes a reference of sorts to a more comprehensive "arrangement," and parol is permissible to furnish the explanation.

The corroborative evidence of defendant's assent to the contents of the unsigned office memorandum is also convincing. Prepared by defendant's agent, Miss Arden's personal secretary, there is little likelihood that that paper was fraudulently manufactured or that defendant had not assented to its contents. Furthermore, the evidence as to the conduct of the parties at the time it was prepared persuasively demonstrates defendant's assent to its terms. Under such circumstances, the courts below were fully justified in finding that the three papers constituted the "memorandum" of their agreement within the meaning of the statute.

Nor can there be any doubt that the memorandum contains all of the essential terms of the contract. (See N. E. D. Holding Co. v. McKinley, 246 N.Y. 40; Friedman & Co. v. Newman, 255 N.Y. 340.) Only one term, the length of the employment, is in dispute. The September 26th office memorandum contains the notation, "2 years to make good". What purpose, other than to denote the length of the contract term, such a notation could have, is hard to imagine. Without it, the employment would be at will (see Martin v. New York Life Ins. Co., 148 N.Y. 117, 121), and its inclusion may not be treated as meaningless or purposeless. Quite obviously, as the courts below decided, the phrase signifies that the parties agreed to a term, a certain and definite term, of two years, after which, if plaintiff did not "make good", he would be subject to discharge. And examination of other parts of the memorandum supports that construction. Throughout the writings, a scale of wages, increasing plaintiff's salary periodically, is set out; that type of arrangement is hardly consistent with the hypothesis that the employment was meant to be at will. The most that may be argued from defendant's standpoint is that "2 years to make good", is a cryptic and ambiguous statement. But, in such a case, parol evidence is admissible to explain its meaning. (See Martocci v. Greater New York Brewery, 301 N.Y. 57, 63; Marks v. Cowdin, supra, 226 N.Y. 138, 143-144; 2 Williston, op. cit., § 576; 2 Corbin, op. cit., § 527.) Having in mind the relations of the parties, the course of the negotiations and plaintiff's insistence upon security of employment, the purpose of the phrase — or so the trier of the facts was warranted in finding — was to grant plaintiff the tenure he desired.

The judgment should be affirmed, with costs.

LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FROESSEL, JJ., concur.

Judgment affirmed.

[1] While our opinion is limited to treatment of that question, we have, of course, considered the other points argued.

ALASKA DEMOCRATIC PARTY and Greg Wakefield, Appellants, v. Kathleen RICE, Appellee.

No. S-6638.

Supreme Court of Alaska.

April 4, 1997.

Joe P. Josephson, Anchorage, for Appellant Alaska Democratic Party.

Paul Stockier, Anchorage, for Appellant Greg Wakefield.

Thomas A Ballantine, Anchorage, for Appellee.

Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

OPINION

RABINOWITZ, Justice.

I. INTRODUCTION

Kathleen Rice (Rice) contended that Greg Wakefield, in his capacity as chair-elect of the Alaska Democratic Party (Party), offered her a two-year position as executive director of the Party. When the job failed to materialize, Rice sued on the alleged oral contract. She was awarded damages after a jury trial. The Party and Wakefield now appeal. We affirm.

II. FACTS AND PROCEEDINGS

Rice worked for the Party in one capacity or another from approximately 1987 to 1991. In 1991, she was fired from her position as executive director by Rhonda Roberts, the then current chair of the Party. In 1991, Rice began working for the Maryland Democratic Party. While she was in Maryland, Greg Wakefield contacted her regarding his potential candidacy for the Party chair and the possibility of Rice serving as his executive director.

In May 1992, Wakefield was in fact elected to chair the Party. His term was set to begin the following February. Rice claims that sometime during the summer after Wakefield had been elected, he “confirmed his decision” to hire her as executive director on the following specific terms: “$36,000.00 a year for at least two years and an additional two years if ... Wakefield is re-elected; and approximately $4,000.00 a year in fringe benefits.”

In August 1992, Nathan Landau, the chair of the Maryland Democratic Party, resigned and asked Rice to come work for him in his new capacity as co-finance chair of the Gore vice-presidential campaign. She accepted this offer. Rice asserts that later, in either September or October, she accepted Wake-field’s offer to work for the Party in Alaska. In November, Rice moved to Alaska, resigning her position with Landau, which she claims “could have continued indefinitely ... at a pay scale the same as that offered by Wakefield.” No written contract was entered into between Rice and Wakefield or between Rice and the Party.

In a closed-door meeting on February 5, 1993, the executive committee of the Party advised Wakefield that he could not hire Rice as executive director. Rice alleges that even after this meeting, Wakefield continued to assure her that she had the job. However, on February 15, Wakefield informed her that she could not have the job. Rice filed suit.

On cross-motions for summary judgment, the superior court dismissed all counts except those based on the theories of promissory estoppel and misrepresentation. After a trial by jury, Rice was awarded $28,864 in damages on her promissory estoppel claim and $1,558 in damages on her misrepresentation claim. The superior court denied the Party’s and Wakefield’s motions for directed verdicts and judgment N.O.V. This appeal followed.

III.DISCUSSION

A. The Superior Court Did Not Err in Denying the Party’s Motion for Summary Judgment on Rice’s Promissory

Estoppel Claim.1

The question of whether the doctrine of promissory estoppel can be invoked to enforce an oral contract that falls within the Statute of Frauds presents a question of first impression. In order to resolve this question, the policy concerns behind both the Statute of Frauds and the doctrine of promissory estoppel must be examined. The purpose of the Statute of Frauds is to prevent fraud by requiring that certain categories of contracts be reduced to writing. However, “it is not intended as an escape route for persons seeking to avoid obligations undertaken by or imposed upon them.” Eavenson v. Lewis Means, Inc., 105 N.M. 161, 730 P.2d 464, 465 (1986), overruled on other grounds by Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 916 P.2d 822 (1996).

In its ruling on cross summary judgment motions in this case, the superior court addressed some of the conflicting case law on this question and ultimately concluded that as between the Statute of Frauds and promissory estoppel, the latter would prevail. It based this conclusion, in large part, on section 139 of the Restatement (Second) of Contracts which provides that

[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise....

Restatement (Second) of Contracts § 139 (1981) (emphasis added). Section 139(2) then goes on to enumerate factors to consider in making the determination of “whether injustice can be avoided only by enforcement of the promise.” Id.

In reaching its decision on this issue, the superior court reasoned:

The Restatement test referenced herein provides an appropriate balance between the competing considerations supporting strict enforcement of the Statute, on the one hand, and prevention of a miscarriage of justice, on the other. Plaintiffs burden in overriding the Statute is to establish the promise’s existence by clear and convincing evidence. This heightened burden, along with the other criteria imposed by Section 139, insure that the polices which gave rise to the Statute of Frauds will not, in fact, be nullified by application of the Restatement exception.

(Emphasis added.) Commentators have noted that “there is no question that many courts are now prepared to use promissory estoppel to overcome the requirements of the statute of frauds.” 2 Arthur L. Corbin, Cor-bin on Contracts § 281A (1950 & Supp.1996). We join those states which endorse the Restatement approach in employment disputes such as this one.2

Concerning the applicability of section 139,3 the requisites for a claim must be met, as the jury reasonably found they were here. The Party and Wakefield reasonably could have expected to induce Rice’s action by their promise. Rice did in fact resign from her job, move from Maryland, and lose money as a result of her reliance on the Party and Wakefield, which amounted to a substantial worsening of her position. In addition, her reliance on the oral representations was reasonable.

Nonetheless, the promise is only enforceable where injustice can only be avoided by enforcement of the promise. The following circumstances are relevant to this inquiry:

a) the availability and adequacy of other remedies, particularly cancellation and restitution;

b) the definite and substantial character of the action or forbearance in relation to the remedy sought;

e) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;

d) the reasonableness of the action or forbearance;

e) the extent to which the action or forbearance was foreseeable by the promisor.

Restatement (Second) of Contracts § 139(2) (emphasis added). In the context of this factual record, the jury could reasonably find that Rice would be a victim of injustice without an award of damages, considering her induced resignation, her move from Maryland, and her loss of money and position.

The Statute of Frauds represents a traditional contract principle that is largely formalistic and does not generally concern substantive rights. The extent to which a reliance exception would undermine this principle is minimal and the rights that it would protect are significant. The need to satisfy the clear and convincing proof standard with respect to the subsection 139(2)(c) factor also reassures us that promissory estoppel will not render the statute of frauds superfluous in the employment context. Accordingly, we affirm the superior court’s treatment of this issue and adopt section 139 as the law of this jurisdiction.4

B. The Superior Court Did Not Commit an Error By Not Incorporating the Phrase “Definite and Substantial” into Jury Instruction Number 12.5

In regard to Rice’s section 139 claim, one aspect of Jury Instruction 12 directed the jury to decide whether Rice “took action in reliance upon the promise.... ” The Party and Wakefield claim that section 139 of the Restatement (Second) of Contracts requires more than that “action” be taken; they contend that the action must be of a “definite and substantial” character. As such, they argue that “instruction 12 omitted a crucial component of the section 139 factors.”

The Restatement lists “the definite and substantial character of the action or forbearance in relation to the remedy sought” as a significant “circumstance[]” to consider when applying the doctrine of promissory estoppel. Restatement (Second) of Contracts § 139. The Party and Wakefield are wrong to characterize this language as creating a “requirement[].” Further, the “definite and substantial” language was given to the jury in Instruction 13.6.

When read as a whole, the instructions clearly direct the jury to consider the definite and substantial character of Rice’s action before concluding that an injustice could be avoided only by enforcing the promise. As such, the instructions are compatible with the Restatement, and it was not error to omit this modifier from the text of Instruction 12.

C. The Evidentiary Record Supports the Jury’s Verdict

1. Agency

The Party argues that Wakefield, as chair-elect, had neither implied nor apparent authority to contract on behalf of the party. Consequently, they conclude that “the Party is not vicariously liable to Rice under the law of agency.” The jury, after being properly instructed on the law of agency, apparently concluded that Wakefield was acting as an agent for the Party when he allegedly offered Rice the job.

The superior court declined to reverse the jury’s implied determination of this issue. In denying the Party’s motion for a judgment N.O.V. on this issue, the superior court concluded that it would have been reasonable for the jury to find that Wakefield had implied authority, apparent authority, or both. In this respect, the superior court observed that “[t]he Party elected Greg Wakefield as its new Chair. In so doing, the Party arguably cloaked Wakefield with apparent authority to conduct business on behalf of his incoming administration.” The superior court also concluded, after discussing the Party Plan and comments allegedly made by Party officials, that the “evidence provides a sufficient basis for a finding of the Chair’s implied general authority to make hiring decisions regarding executive personnel.” 7

In addition to its more general complaints on this topic, the Party specifically claims that “even if Wakefield, as chair-elect, had the implied or apparent authority to hire someone, he lacked the authority to hire Rice at all, and most especially for a set term employment contract of two or more years, as opposed to an employment contract at will.” The superior court properly refuted both branches of this argument. In response to the first branch, the superior court concluded that “[b]ecause the evidence supported a finding of general authority, there was no need to adduce evidence of a specific intention to authorize Rice’s hiring in particular.” With respect to whether Wakefield had the authority to hire someone for a term of years, the superior court held that since the question had not been raised at trial or on motion for directed verdict, it was accordingly waived.8

The question of whether Wake-field had implied or apparent authority to retain an executive director during the term of his chairmanship was properly submitted to the jury for resolution.9

2. Misrepresentation

The Party and Wakefield do not, in this appeal, dispute the fact that the jury instructions covering Rice’s misrepresentation claim accurately set forth the correct legal standards. The only legal contention that they raise with this claim is that since at the time that the alleged representations were made ‘Wakefield was a volunteer, not speaking in his business or professional capacity,” his representations cannot provide a basis for recovery. This argument is derived from the text of subsection 552(1) of the Restatement (Second) of Torts (1977). That section would allow recovery against “[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information.... ” Id.

The Party and Wakefield argue that this language constitutes a “prerequisite for claiming negligent misrepresentation.” However, the comment to Subsection 552(1) explains that it is designed primarily to distinguish cases where “the information is given purely gratuitously....” That is not this case. Wakefield had a significant stake in Rice’s acceptance of his alleged offer; he apparently wanted her to serve as his executive director. Despite the fact that his term had not yet commenced when the representations were made, they were clearly made in the course of the business of running a political party. As such, even if the Restatement (Second) of Torts does create a prerequisite, that prerequisite was functionally met in this case.

The remainder of the Party’s and Wakefield’s arguments under this heading essentially amount to claims that the jury’s verdict is not compatible with the evidence that was introduced at trial.10 First, they claim that “there was insufficient evidence of reasonable and justifiable reliance by Rice.” Since Wakefield was chairman-elect of the Party, and since, according to Rice’s testimony, he offered her a job on certain and specific terms, the jury was well within the bounds of reason to conclude that her reliance was justifiable and reasonable under the circumstances.

The Party’s only other claim is that the requirements of section 161 of the Restatement (Second) of Contracts were not met by the evidence. Even assuming that section 161 has application to this claim, which is founded primarily in tort, a reasonable jury could have found that its requirements were met. More specifically, the jury could have concluded, based upon the evidence in this case, that Wakefield knew “that disclosure of the [executive committee’s veto power was] necessary to prevent some previous assertion from being fraudulent or material.” Restatement (Second) of Contracts § 161(a) (1981).

The comment to section 161 states that “one is expected to disclose ... such facts as he ... has reason to know will influence the other in determining his course of action.” Id. Since Wakefield could certainly be expected to know that disclosure of the fact that he did not actually have the authority to offer Rice a job would influence her actions, the facts alleged here satisfy section 161.

Both legal and factual support for the jury’s verdict on the misrepresentation claim are found in this record. The Party’s and Wakefield’s arguments to the contrary are without merit.

D. The Damage Amount Was Not Excessive in Light of the Evidence.

1. Section 139 claim

According to the special verdict form, Rice was awarded $28,864.00 in damages for lost earnings and benefits on her section 139 claim. The salary that Rice claims to have been offered was $36,000.00 per year plus $4,200.00 in employee benefits. The Party and Wakefield do not seem to dispute the fact that the $28,864.00 amount is a fair measure of Rice’s lost wages based upon the salary figures she alleges. The gist of their argument on the promissory estoppel claim is rather that the full “benefit of the bargain [was] not necessary to avoid injustice.”

As discussed in section III.A., supra, a proven section 139 claim has the effect of rendering the oral contract, which would have been invalid under the Statute of Frauds, legally enforceable on the terms established by Rice. The superior court correctly instructed the jury as to the proper method of calculating damages.11

Further, since this jury was specifically instructed not to find for Rice on this claim unless “[i]njustice can be avoided only be enforcement of the promise,” it can be inferred that the jury concluded that the damages award was “necessary to avoid injustice.” This question was properly reserved for the jury, and there is nothing unreasonable or outrageous about their award. The Party’s and Wakefield’s contentions to the contrary are without merit.

2. Misrepresentation

The special verdict forms indicate that the jury awarded Rice $1,558.00 on her misrepresentation claim. This amount represents what Rice claims to have spent on moving expenses. As a result of this award, the Party and Wakefield complain that “under the judgment, [Rice] gets both her travel costs ... and damages calculated with reference to the terms of the promise,” giving her more than she would have received even if the alleged contract had been honored.

This argument would have been valid if the superior court had actually awarded this damage item to Rice. It did not. The final judgment order reduced the total award of the jury, which would have been $30,422.00 with the misrepresentation award, to the $28,864.00 amount that represents only lost wages and benefits.12 Consequently, we reject the Party and Wakefield’s contention that the damage award is excessive on this ground.

IV. CONCLUSION

We AFFIRM the judgment of the superior court.

1

This is a pure question of law which this court reviews de novo. Langdon v. Champion, 745 P.2d 1371 (Alaska 1987).

2

See McIntosh v. Murphy, 52 Haw. 29, 469 P.2d 177 (1970); Eavenson v. Lewis Means, Inc., 105 N.M. 161, 730 P.2d 464 (1986), overruled by Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 916 P.2d 822, 828 (1996) (recasting elements of promissory estoppel), and Glasscock v. Wilson Constructors, Inc., 627 F.2d 1065 (10th Cir.1980).

Numerous decisions have rejected the Restatement approach both implicitly and explicitly. See, e.g., Venable v. Hickerson, Phelps, Kirtley & Assoc., Inc., 903 S.W.2d 659 (Mo.App.1995), Greaves v. Medical Imaging Sys., Inc., 124 Wash.2d 389, 879 P.2d 276 (1994), Collins v. Allied Pharmacy Management, Inc., 871 S.W.2d 929 (Tex.App.1994), Dickens v. Quincy College Corp., 245 Ill.App.3d 1055, 185 Ill.Dec. 822, 615 N.E.2d 381 (1993), Stearns v. Emery-Waterhouse Co., 596 A.2d 72 (Me.1991), Sales Serv., Inc. v. Daewoo Int’l (America) Corp., 770 S.W.2d 453 (Mo.App.1989), Whiteco Indus., Inc. v. Kopani, 514 N.E.2d 840 (Ind.App.1987), Cunnison v. Richardson Greenshields Securities, Inc., 107 A.D.2d 50, 485 N.Y.S.2d 272 (N.Y.App.Div.1985), Moran v. NAV Servs., 189 Ga.App. 825, 377 S.E.2d 909 (1989), Munoz v. Kaiser Steel Corp., 156 Cal.App.3d 965, 203 Cal.Rptr. 345 (1984).

3

In reviewing a jury's determination, this court views the evidence in the light most favorable to the judgment. It does not "weigh the evidence or judge the credibility of the witnesses," but instead, "determine[s] whether there is room for diversity of opinion among reasonable people. If so, the question is one for the jury.” Levar v. Elkins, 604 P.2d 602, 604 (Alaska 1980).

In denying the Party’s and Wakefield’s motions for judgment N.O.V., the superior court stated in part:

Rice, however, testified that Caroline Covington had told her that the Chair makes the decision regarding employment of executive directors. Rice claimed Wakefield told her it was his decision who to hire. He allegedly said that if everyone was mad, he and Kathleen would work together through May and then both quit, suggesting again that the decision would be his, notwithstanding opposition. Plaintiff said that when John Pugh was chair, he had communicated that it was within his discretion to fire executive director Bob Speed. And the Party Plan did not give the executive committee authority over such hiring decisions. This was sufficient evidence for the jury to decide that Rice relied on Wakefield’s implicit promise that the executive committee could not derail his selection for executive or finance director. While the Party focuses on the reasonableness of Rice’s reliance, that is only one factor for the jury to evaluate in deciding whether injustice could be avoided only by enforcing the contract.

Our review of the record persuades us that there is ample evidence supporting the superior court’s analysis.

4

The Party and Wakefield present further arguments as to why they should prevail on the promissory estoppel claim. They argue first that "[t]here was no substantial change of position, no reliance, and no foreseeability of reliance.” And second, that " '[t]he interests of justice’ do not require enforcement of the alleged ‘promise.’ ”

These arguments were not included in the points on appeal submitted at filing, nor were they presented anywhere in the body of the opening brief; they are only argued in the reply brief. As such, they will not be considered by this court. Alaska Rule of Appellate Procedure 204(e). See also Swick v. Seward School Bd., 379 P.2d 97 (Alaska 1963). The arguments are, in any event, without merit. They involve issues that were appropriately resolved against the Party and Wakefield by the jury.

Wakefield further claims that the terms of the contract cannot be enforced against him personally. Rice, however, argues that “Wakefield has waived this argument by his conduct at trial." Indeed, it does not appear, based upon the record, that he raised this defense until his motion for judgment N.O.V. Further, as the superior court properly held, the entire judgment N.O.V. motion was improper since Wakefield had failed to move for a directed verdict at the close of the evidence. As a result, this court regards the defense as having never been raised at trial and accordingly waived for purposes of appellate review.

5

The question here is essentially whether or not the jury instruction is an accurate statement of the law. This court reviews questions of law de novo. Langdon v. Champion, 745 P.2d 1371 (Alaska 1987).

6

Instruction 13 reads in full as follows:

In determining whether injustice can be avoided only by enforcement of a promise, you may consider, among others, the following circumstances:

(a) the definite and substantial character of the plaintiff's action in relation to the remedy sought;

(b) the extent to which plaintiff's action corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;

(c) the reasonableness of plaintiff's action;

(d)the extent to which plaintiff’s action was foreseeable by the promisor.

7

In regard to these issues the superior court correctly reasoned:

Plaintiff relied on the fact that the Party Plan did not indicate any intent to endow the executive committee with authority to override the Chair. As noted previously, moreover, Rice testified to comments purportedly made by Caroline Covington and John Pugh which suggested an intention on the part of Party officials to vest complete discretion over hiring decisions in the Chair. Additionally, John Alexander, an executive committee member at the time Wakefield offered Rice the position, testified that he understood Wakefield to have the unfettered authority to hire a finance director.

This evidence provides a sufficient basis for a finding of the Chair’s implied general authority to make hiring decisions regarding executive personnel. Because the evidence supported a finding of general authority, there was no need to adduce evidence of a specific intention to authorize Rice’s hiring in particular. Similarly, if an installed Chair could make a binding job offer, the jury could reasonably find that the Party contemplated that a Chair-elect could do the same, so long as the employment was not to be effective prior to the time that the Chair actually assumed the office.

The jury was also instructed that the party could be found vicariously liable based on apparent authority. Apparent authority entails conduct of the principal by which third parties are given reason to believe that the agent is authorized to act on the principal’s behalf. 3 Am.Jur.2d Agency sec. 78. “Unless the evidence allows but one inference, the question of apparent authority is one of fact for the jury.” Jackson v. Power, 743 P.2d 1376 (Alaska 1987); City of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128 (Alaska 1983).

The Party elected Greg Wakefield as its new Chair. In so doing, the Party arguably cloaked Wakefield with apparent authority to conduct business on behalf of his incoming administration. Wakefield was allowed to speak for the Party in certain respects. He did radio commentary as the Party’s spokesman at the November general election. He organized fund raisers. And he travelled to various meetings in his capacity as Chair-elect.

Wakefield's actions, moreover, corresponded to those of Rhonda Roberts, when she was Chair-elect. Ricef testified that during Roberts' pre-installation phase, she (Roberts) called the Party office on occasion requesting assistance. Rice responded to these requests. As discussed previously, the Party also promulgated its Party Plan, which placed no limitations on the Chair (or Chair-elect)'s prerogative to make employment decisions. Thus, there was an historical context within which Rice could have construed the Party’s position on Wake-field’s hiring authority. There was sufficient evidence for the jury to find that Rice understood from Party conduct that Wakefield was authorized to hire personnel for the finance director position.

8

The Party now contends that it did, in fact, raise this question when moving for directed verdict. In support of this proposition, it offers only the following transcript excerpt:

We don't think there’s a showing of an implied or apparent agency at all in the — on this record. So, we would ask for directed verdict for [the previously listed] reasons.

This is not adequate. The Party apparently never mentioned anything about the term of employment as it related to agency. As such, the argument has been effectively waived.

9

"Unless the evidence allows but one inference, the question of apparent authority is one of fact for the jury.” Jackson v. Power, 743 P.2d 1376, 1382 (Alaska 1987) (citations omitted).

10

This court will not disturb a jury's verdict unless the evidence, considered in the light most favorable to the verdict, is so clearly to the contrary that "reasonable persons could not differ in their judgment.” Diamond v. Wagstaff, 873 P.2d 1286, 1290 (Alaska 1994).

11

In regard to the section 139 claim, the superior court instructed the jury in part as follows:

If you decide in favor of the plaintiff, you must then decide how much money, if any, will fairly compensate her. I will list for you the items of loss claimed by the plaintiff. You may not assume because I list an item of loss or explain how to measure a particular loss that you are required to make an award for that loss. For each item of loss you must decide that it is more likely than not true that:

1. The plaintiff had such a loss or is reasonably probable to have such a loss in the future, and

2. The loss was legally caused by the conduct of one or both defendants that forms the basis for your verdict.

If both of these things are more likely than not true, you must then decide how much money will fairly compensate the plaintiff for that item of loss. If you do not conclude that both of these things are more likely than not true for a particular item of loss, you may not make an award for that loss.

As explained in Instruction 12, the items of claimed loss on the promissory estoppel claim are either

1. Lost earnings of $36,000 per year and employment benefits of $4,200 per year for two years, minus earnings actually received and to be received from plaintiff's bill collector's job; or

2. Relocation damages in the amount of $1,558.

The item of claimed loss on the misrepresentation claim is

1. Relocation damages in the amount of $1,558.

To award plaintiff damages, if any, on her claim for lost earnings and benefits, you must calculate the total amount of earnings and employment benefits that plaintiff would have received during her employment with the Party-

From the amount just calculated you must then subtract:

(a) the amount of salary and the value of any benefits that plaintiff has received or will receive from her bill collecting job during the period in which she expected to be employed by the Party;

(b) the amount of payments, if any, given her by the Party that would not have been made, had she been hired as Finance Director; and

(c) the amount of salary and value of any benefits that plaintiff could have earned in mitigation. Mitigation is described hereafter.

12

In its jury instructions on the misrepresentation claim, the superior court explicitly noted its intention to "make any adjustments that may be necessary to insure that there is no double recovery.”