CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

[36] Solicitor General Bork argued the cause for petitioner. With him on the briefs were Assistant Attorney General Hills, Deputy Solicitor General Friedman, Edmund W. Kitch, William L. Patton, Robert E. Kopp, Eloise E. Davies, and David M. Cohen.

John R. Thompson argued the cause for respondent city of New York. With him on the briefs were Adrian P. Burke, Gary Mailman, and Alexander Gigante, Jr.^[1]

[37] MR. JUSTICE WHITE delivered the opinion of the Court.

This case poses certain questions concerning the proper construction of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U. S. C. § 1251 et seq. (1970 ed., Supp III) (1972 Act), which provide a comprehensive program for controlling and abating water pollution. Section 2 of the 1972 Act, 86 Stat. 833, in adding Title II, §§ 201-212, to the Federal Water Pollution Control Act, 62 Stat. 1155, 33 U. S. C. §§ 1281-1292 (1970 ed., Supp. III),^[2] makes available federal financial [38] assistance in the amount of 75% of the cost of municipal sewers and sewage treatment works. Under § 207, there is "authorized to be appropriated" for these purposes [39] "not to exceed" $5 billion for fiscal year 1973, "not to exceed" $6 billion for fiscal year 1974, and "not to exceed" $7 billion for fiscal year 1975. Section 205 (a) directs that "[s]ums authorized to be appropriated pursuant to [§ 207]" for fiscal year 1973 be allotted "not later than 30 days after October 18, 1972." The "[s]ums authorized" for the later fiscal years 1974 and 1975 "shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized . . . ." From these allotted sums, § 201 (g) (1) authorizes the Administrator "to make grants to any . . . municipality . . . for the construction of publicly owned treatment works . . . ," pursuant to plans and specifications as required by § 203 and meeting the other requirements of the Act, including those of § 204. Section 203 (a) specifies that the Administrator's approval of plans for a project "shall be deemed a contractual obligation of the United States for the payment of its proportional contribution to such project."^[3]

[40] The water pollution bill that became the 1972 Act was passed by Congress on October 4, 1972, but was vetoed by the President on October 17. Congress promptly overrode the veto. Thereupon the President, by letter dated November 22, 1972,^[4] directed the Administrator "not [to] allot among the States the maximum amounts provided by section 207" and, instead, to allot "[n]o more than $2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974 . . . ."^[5] On December 8, the Administrator announced by regulation^[6] that in accordance with the President's letter he was allotting for fiscal years 1973 and 1974 "sums not to exceed $2 billion and $3 billion, respectively."

This litigation, brought by the city of New York and similarly situated municipalities in the State of New York, followed immediately.^[7] The complaint sought judgment against the Administrator of the Environmental Protection Agency declaring that he was obligated to allot to the States the full amounts authorized by § 207 for fiscal years 1973 and 1974, as well as an order directing him to make those allotments. In May 1973, the District Court denied the Administrator's motion to dismiss and granted the cities' motion for summary judgment. The Court of Appeals affirmed, holding that "the Act requires the Administrator to allot the full sums authorized to be appropriated [41] in § 207." 161 U. S. App. D. C. 114, 131, 494 F. 2d 1033, 1050 (1974).

Because of the differing views with respect to the proper construction of the Act between the federal courts in the District of Columbia in this case and those of the Fourth Circuit in Train v. Campaign Clean Water, post, p. 136, we granted certiorari in both cases, 416 U. S. 969 (1974), and heard them together. The sole issue^[8] before us is whether the 1972 Act permits the Administrator to allot to the States under § 205 (a) less than the entire amounts authorized to be appropriated by § 207. We hold that the Act does not permit such action and affirm the Court of Appeals.^[9]

[42] Section 205 (a) provides that the "[s]ums authorized to be appropriated pursuant to [§ 207] . . . shall be allotted by the Administrator." Section 207 authorizes the appropriation of "not to exceed" specified amounts for each of three fiscal years. The dispute in this case turns principally on the meaning of the foregoing language from the indicated sections of the Act.

The Administrator contends that § 205 (a) directs the allotment of only "sums"—not "all sums"—authorized by § 207 to be appropriated and that the sums that must be allotted are merely sums that do not exceed the [43] amounts specified in § 207 for each of the three fiscal years. In other words, it is argued that there is a maximum, but no minimum, no the amounts that must be allotted under § 205 (a). This is necessarily the case, he insists, because the legislation, after initially passing the House and Senate in somewhat different form, was amended in Conference and the changes, which were adopted by both Houses, were intended to provide wide discretion in the Executive to control the rate of spending under the Act.

The changes relied on by the Administrator, the so-called Harsha amendments, were two. First, § 205 of the House and Senate bills as they passed those Houses and went to Conference, directed that there be allotted "all sums" authorized to be appropriated by § 207.^[10] The word "all" was struck in Conference. Second, § 207 of the House bill authorized the appropriation of specific amounts for the three fiscal years. The Conference Committee inserted the qualifying words "not to exceed" before each of the sums so specified.

The Administrator's arguments based on the statutory language and its legislative history are unpersuasive. Section 207 authorized appropriation of "not to exceed" a specified sum for each of the three fiscal years. If the States failed to submit projects sufficient to require obligation, and hence the appropriation, of the entire amounts authorized, or if the Administrator, exercising whatever authority the Act might have given him to deny grants, refused to obligate these total amounts, § 207 would obviously permit appropriation of the lesser amounts. But if, for example, the full amount provided for 1973 was obligated by the Administrator in the course of [44] approving plans and making grants for municipal contracts, § 207 plainly "authorized" the appropriation of the entire $5 billion. If a sum of money is "authorized" to be appropriated in the future by § 207, then § 205 (a) directs that an amount equal to that sum be allotted. Section 207 speaks of sums authorized to be appropriated, not of sums that are required to be appropriated; and as far as § 205 (a)'s requirement to allot is concerned, we see no difference between the $2 billion the President directed to be allotted for fiscal year 1973 and the $3 billion he ordered withheld. The latter sum is as much authorized to be appropriated by § 207 as is the former. Both must be allotted.

It is insisted that this reading of the Act fails to give any effect to the Conference Committee's changes in the bill. But, as already indicated, the "not to exceed" qualifying language of § 207 has meaning of its own, quite apart from § 205 (a), and reflects the realistic possibility that approved applications for grants from funds already allotted would not total the maximum amount authorized to be appropriated. Surely there is nothing inconsistent between authorizing "not to exceed" $5 billion for 1973 and requiring the full allotment of the $5 billion among the States. Indeed, if the entire amount authorized is ever to be appropriated, there must be approved municipal projects in that amount, and grants for those projects may only be made from allotted funds.

As for striking the word "all" from § 205, if Congress intended to confer any discretion on the Executive to withhold funds from this program at the allotment stage, it chose quite inadequate means to do so. It appears to us that the word "sums" has no different meaning and can be ascribed no different function in the context of § 205 than would the words "all sums." It is said that [45] the changes were made to give the Executive the discretionary control over the outlay of funds for Title II programs at either stage of the process. But legislative intention, without more, is not legislation. Without something in addition to what is now before us, we cannot accept the addition of the few words to § 207 and the deletion of the one word from § 205 (a) as altering the entire complexion and thrust of the Act. As conceived and passed in both Houses, the legislation was intended to provide a firm commitment of substantial sums within a relatively limited period of time in an effort to achieve an early solution of what was deemed an urgent problem.^[11] We cannot believe that Congress at the last [46] minute scuttled the entire effort by providing the Executive with the seemingly limitless power to withhold funds from allotment and obligation. Yet such was the Government's position in the lower courts—combined with the argument that the discretion conferred is unreviewable.

The Administrator has now had second thoughts. He does not now claim that the Harsha amendments should be given such far-reaching effect. In this Court, he views §§ 205 (a) and 207 as merely conferring discretion on the Administrator as to the timing of expenditures, not as to the ultimate amounts to be allotted and obligated. He asserts that although he may limit initial allotments in the three specified years, "the power to allot continues" and must be exercised, "until the full $18 billion has [47] been exhausted."^[12] Brief for Petitioner 13; Tr. of Oral Arg. 16-17. It is true that this represents a major modification of the Administrator's legal posture,^[13] but our conclusion that § 205 (a) requires the allotment of sums equal to the total amounts authorized to be appropriated under § 207 is not affected. In the first place, under § 205 (a) the Administrator's power to allot extends only to "sums" that are authorized to be appropriated under § 207. If he later has power to allot, and must allot, the balance of the $18 billion not initially allotted in the specified years, it is only because these additional amounts are "sums" authorized by § 207 to be appropriated. But if they are "sums" within the meaning of § 205 (a), then that section requires that they be allotted by November 17, 1972, in the case of 1973 funds, and for 1974 and 1975 "not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized."^[14] The November 22 letter of the President and the Administrator's consequent withholding of authorized funds cannot be squared with the statute.

Second, even assuming an intention on the part of [48] Congress, in the hope of forestalling a veto, to imply a power of some sort in the Executive to control outlays under the Act, there is nothing in the legislative history of the Act indicating that such discretion arguably granted was to be exercised at the allotment stage rather than or in addition to the obligation phase of the process. On the contrary, as we view the legislative history, the indications are that the power to control, such as it was, was to be exercised at the point where funds were obligated and not in connection with the threshold function of allotting funds to the States.^[15] The Court of Appeals carefully examined the legislative history in this respect and arrived at the same conclusion, as have most of the other courts that have dealt with the issue.^[16] We thus [49] reject the suggestion that the conclusion we have arrived at is inconsistent with the legislative history of §§ 205 (a) and 207.

Accordingly, the judgment of the Court of Appeals is affirmed.

So ordered.

MR. JUSTICE DOUGLAS concurs in the result.

[1] Briefs of amici curiae were filed by Evelle J. Younger, Attorney General, pro se, Robert H. O'Brien, Senior Assistant Attorney General, and Nicholas C. Yost, Deputy Attorney General, for the Attorney General of California; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman and Charles Alpert, Assistant Attorneys General, for the State of Michigan; by Warren Spannaus, Attorney General, Byron E. Starns, Deputy Attorney General, Peter W. Sipkins, Solicitor General, and Eldon G. Kaul, Special Assistant Attorney General, for the State of Minnesota; by William F. Hyland, Attorney General, pro se, Stephen Skillman, Assistant Attorney General, and John M. Van Dalen, Deputy Attorney General, for the Attorney General of New Jersey; by William J. Brown, Attorney General, and Richard P. Fahey and David E. Northrop, Assistant Attorneys General, for the State of Ohio; by John L. Hill, Attorney General, Larry F. York, First Assistant Attorney General, and Philip K. Maxwell, Assistant Attorney General of Texas, Robert W. Warren, Attorney General, and Theodore L. Priebe, Assistant Attorney General of Wisconsin, John C. Danforth, Attorney General, and Robert M. Lindholm, Assistant Attorney General of Missouri, Larry Derryberry, Attorney General, and Paul C. Duncan, Assistant Attorney General of Oklahoma, and Vern Miller, Attorney General, and Curt T. Schneider, Assistant Attorney General of Kansas, for the States of Texas, Wisconsin, Missouri, Oklahoma, and Kansas; by Andrew P. Miller, Attorney General, Gerald L. Baliles, Deputy Attorney General, and James E. Ryan, Jr., Assistant Attorney General, for the Commonwealth of Virginia; by Slade Gorton, Attorney General, Charles B. Roe, Jr., Senior Assistant Attorney General, and Martin J. Durkan and James B. McCabe, Special Assistant Attorneys General of Washington, and Israel Packel, Attorney General, and James R. Adams, Deputy Attorney General of Pennsylvania, for the State of Washington and the Commonwealth of Pennsylvania; and by Fletcher N. Baldwin, Jr., for the Center for Governmental Responsibility.

[2] The provisions of Title II, as added by the 1972 Amendments chiefly involved in this case are, in pertinent part, as follows:

Section 205 (a), 33 U. S. C. § 1285 (a) (1970 ed., Supp. III):

"Sums authorized to be appropriated pursuant to section 1287 of this title for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January 1st immediately preceding the beginning of the fiscal year for which authorized, except that the allotment for fiscal year 1973 shall be made not later than 30 days after October 18, 1972. . . ."

Section 207, 33 U. S. C. § 1287 (1970 ed., Supp. III):

"There is authorized to be appropriated to carry out this subchapter. . . for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000, and for the fiscal year ending June 30, 1975, not to exceed $7,000,000,000."

Section 203, 33 U. S. C. § 1283 (1970 ed., Supp. III):

"(a) Each applicant for a grant shall submit to the Administrator for his approval, plans, specifications, and estimates for each proposed project for the construction of treatment works for which a grant is applied for [sic] under section 1281 (g) (1) of this title from funds allotted to the State under section 1285 of this title and which otherwise meets the requirements of this chapter. The Administrator shall act upon such plans, specifications, and estimates as soon as practicable after the same have been submitted, and his approval of any such plans, specifications, and estimates shall be deemed a contractual obligation of the United States for the payment of its proportional contribution to such project.

"(b) The Administrator shall, from time to time as the work progresses, make payments to the recipient of a grant for costs of construction incurred on a project. These payments shall at no time exceed the Federal share of the cost of construction incurred to the date of the voucher covering such payment plus the Federal share of the value of the materials which have been stockpiled in the vicinity of such construction in conformity to plans and specifications for the project.

"(c) After completion of a project and approval of the final voucher by the Administrator, he shall pay out of the appropriate sums the unpaid balance of the Federal share payable on account of such project."

[3] The Act thus established a funding method differing in important respects from the normal system of program approval and authorization of appropriation followed by separate annual appropriation acts. Under that approach, it is not until the actual appropriation that the Government funds can be deemed firmly committed. Under the contract-authority scheme incorporated in the legislation before us now, there are authorizations for future appropriations but also initial and continuing authority in the Executive Branch contractually to commit funds of the United States up to the amount of the authorization. The expectation is that appropriations will be automatically forthcoming to meet these contractual commitments. This mechanism considerably reduces whatever discretion Congress might have exercised in the course of making annual appropriations. The issue in this case is the extent of the authority of the Executive to control expenditures for a program that Congress has funded in the manner and under the circumstances present here.

[4] Letter from President Nixon to William D. Ruckelshaus, Administrator, Environmental Protection Agency, Nov. 22, 1972, App. 15-16.

[5] Although the allotment for fiscal year 1975 is not directly at issue in this case, on January 15, 1974, the Administrator allotted $4 billion out of the $7 billion authorized for allotment for that fiscal year. Brief for Petitioner 6.

[6] 37 Fed. Reg. 26282 (1972).

[7] The District Court ordered the action to proceed as a class action under Fed. Rules Civ. Proc. 23 (b) (1) and (2) and also allowed the city of Detroit to intervene as a plaintiff.

[8] The petition for a writ of certiorari also presented the question whether a suit to compel the allotment of the sums in issue here is barred by the doctrine of sovereign immunity, but that issue was not briefed and apparently has been abandoned. The Administrator concedes that, if § 205 (a) requires allotment of the full amounts authorized by § 207, then "allotment is a ministerial act and the district courts have jurisdiction to order that it be done." Brief for Petitioner 14.

[9] On July 12, 1974, while this case was pending in this Court the Congressional Budget and Impoundment Control Act of 1974, Pub. L. 93-344, 88 Stat. 297, 31 U. S. C. § 1301 et seq. (1970 ed., Supp. IV), became effective. Title X of that Act imposes certain requirements on the President in postponing or withholding the use of authorized funds. If he determines that certain budget authority will not be required to carry out a particular program and is of the view that such authority should be rescinded, he must submit a special message to Congress explaining the basis therefor. For the rescission to be effective, Congress must approve it within 45 days. Should the President desire to withhold or delay the obligation or expenditure of budget authority, he must submit a similar special message to Congress. His recommendation may be rejected by either House adopting a resolution disapproving the proposed deferral.

These provisions do not render this case moot or make its decision unnecessary, for § 1001, note following 31 U. S. C. § 1401 (1970 ed., Supp. IV), provides that:

"Nothing contained in this Act, or in any amendments made by this Act, shall be construed as—

.....

"(3) affecting in any way the claims or defenses of any party to litigation concerning any impoundment."

The Act would thus not appear to affect cases such as this one, pending on the date of enactment of the statute. The Solicitor General, on behalf of the Administrator, has submitted a supplemental brief to this effect. The city of New York agrees that the case has not been mooted by the Impoundment Act and no contrary views have been filed.

Although asserting on the foregoing ground and on other grounds that the Impoundment Act has no application here, the Executive Branch included among the deferrals of budget authority reported to Congress pursuant to the new Act:

"Grants for waste treatment plant construction ($9 billion). Release of all these funds would be highly inflationary, particularly in view of the rapid rise in non-Federal spending for pollution control. Some of the funds now deferred will be allotted on or prior to February 1, 1975."

In connection with that submission, the President asserted that the Act "applies only to determinations to withhold budget authority which have been made since the law was approved," but nevertheless thought it appropriate to include in the report actions which were concluded before the effective date of the Act. 120 Cong. Rec. S17195 (Sept. 23, 1974). Other than as they bear on the possible mootness in the litigation before us, no issues as to the reach or coverage of the Impoundment Act are before us.

[10] Section 205 as it appeared in the Senate bill directed the Administrator to "allocate" rather than to "allot." The difference appears to be without significance.

[11] The Act declares that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," § 101 (a) (1), 33 U. S. C. § 1251 (a) (1) (1970 ed., Supp. III). Congress intended also to apply to publicly owned sewage treatment works "the best practicable waste treatment technology over the life of the works consistent with the purposes of this subchapter." § 201 (g) (2) (A), 33 U. S. C. § 1281 (g) (2) (A) (1970 ed., Supp. III). See § 301 (b) (1) (B), 33 U. S. C. § 1311 (b) (1) (B) (1970 ed., Supp. III). The congressional determination to commit $18 billion during the fiscal year 1973-1975 is reflected in the following remarks of Senator Muskie, the Chairman of the Senate Subcommittee concerned with the legislation and the manager of the bill on the Senate floor:

"[T]hose who say that raising the amounts of money called for in this legislation may require higher taxes, or that spending this much money may contribute to inflation simply do not understand the language of this crisis.

"The conferees spent hours and days studying the problem of financing the cleanup effort required by this new legislation. The members agreed in the end that a total of $18 billion had to be committed by the Federal Government in 75-percent grants to municipalities during fiscal years 1973-75. That is a great deal of money; but that is how much it will cost to begin to achieve the requirements set forth in the legislation.

.....

". . . [T]here were two strong imperatives which worked together to convince the members of the conference that this much money was needed: first, the conviction that only a national commitment of this magnitude would produce the necessary technology; and second, the knowledge that a Federal commitment of $18 billion in 75-percent grants to the municipalities was the minimum amount needed to finance the construction of waste treatment facilities which will meet the standards imposed by this legislation.

.....

"Mr. President, to achieve the deadlines we are talking about in this bill we are going to need the strongest kind of evidence of the Federal Government's commitment to pick up its share of the load. We cannot back down, with any credibility, from the kind of investment in waste treatment facilities that is called for by this bill. And the conferees are convinced that the level of investment that is authorized is the minimum dose of medicine that will solve the problems we face." 118 Cong. Rec. 33693-33694 (1972).

Both Houses rejected authorization-appropriation funding in favor of the contract-authority system, which was deemed to involve a more binding and reliable commitment of funds. See 117 Cong. Rec. 38799, 38846-38853 (1971); 118 Cong. Rec. 10751-10761 (1972). Congressman Harsha, the House floor manager of the bill, explained the preference for the contract-authority approach and indicated that it was essential for orderly and continuous planning. Id., at 10757-10758.

[12] The Administrator goes on to argue that under his present view of the Act, there is little if any difference between discretion to withhold allotments and discretion to refuse to obligate, for under either approach the full amounts authorized will eventually be available for obligation. The city of New York contends otherwise. Our view of the Act makes it unnecessary to reach the question.

[13] The Administrator now indicates that the Act is presently being administered in accordance with his view of the Act asserted here. Brief for Petitioner 13.

[14] Under § 205 (b), any funds allotted to a State that remain unobligated at the end of a one-year period after the close of the fiscal year for which funds are authorized become available for reallotment by the Administrator in accordance with a formula to be determined by the Administrator. These provisions for reallotment, as well as the reallotment formula, plainly apply only to funds that have already been allotted.

[15] Senator Muskie, who was the senior majority conferee from the Senate, gave his view of the meaning of the Harsha amendments on the floor of the Senate:

"Under the amendments proposed by Congressman William Harsha and others, the authorizations for obligational authority are `not to exceed' $18 billion over the next 3 years. Also, `all' sums authorized to be obligated need not be committed, though they must be allocated. These two provisions were suggested to give the Administration some flexibility concerning the obligation of construction grant funds." 118 Cong. Rec. 33694 (1972).

He repeated his views in the course of Senate proceedings to override the President's veto. Id., at 36871. Nothing was said in the Senate challenging the Senator's view that executive discretion did not extend to allotments.

In the House, the power to make allotments under § 205 was not mentioned in terms. The impact of the Harsha amendments was repeatedly explained by reference to discretion to obligate or to expend. Typical was Representative Harsha's remarks that the amendments were intended to "emphasize the President's flexibility to control the rate of spending . . . ," and that "the pacing item" in the expenditure of funds was the Administrator's power to approve plans, specifications, and estimates. Id., at 33754. See also id., at 33693, 33704, 33715-33716, 33754-33755, 36873-36874, 37056-37060.

[16] 161 U. S. App. D. C. 114, 494 F. 2d 1033 (1974), aff'g 358 F. Supp. 669 (DC 1973). Other District Courts have reached this same result: Ohio ex rel. Brown v. Administrator, EPA, Nos. C. 73-1061 & C. 74-104 (ND Ohio June 26, 1974); Maine v. Fri, Civ. No. 14-51 (Me. June 21, 1974); Florida v. Train, Civ. No. 73-156 (ND Fla. Feb. 25, 1974); Texas v. Ruckelshaus, No. A-73-CA-38 (WD Tex. Oct. 2, 1973); Martin-Trigona v. Ruckelshaus, No. 72-C-3044 (ND Ill. June 29, 1973); Minnesota v. EPA, No. 4-73, Civ. 133 (Minn. June 25, 1974). The only District Court case in which the issue was actively litigated and which held to the contrary was Brown v. Ruckelshaus, 364 F. Supp. 258 (CD Cal. 1973).

Page 105

        [56 Cal.App.4th 113] Marjorie A. Seapy, Claremont, for Plaintiff and Appellant.

        Roberts and Morgan, and Arthur K. Cunningham, Riverside, for Defendants and Respondents.

[56 Cal.App.4th 114]

OPINION

        McDANIEL, Associate Justice. ^*

        John Lowe (Plaintiff) was seriously injured when struck on the left side of his face by a foul ball while attending a professional baseball

Page 106

        The Quakes, at their home games, feature a mascot who goes by the name of "Tremor." He is a caricature of a dinosaur, standing seven feet tall with a tail which protrudes out from the costume. Tremor was performing his antics in the stands just along the left field foul line. Tremor was behind plaintiff and had been touching him with his (Tremor's) tail. Plaintiff was thereby distracted and turned toward Tremor. In the next moment, just as plaintiff returned his attention to the playing field, he was struck by a foul ball before he could react to it.

        Very serious injuries resulted from the impact. As a result, the underlying action was commenced against the California League of Professional Baseball and Valley Baseball Club, Inc., which does business as the Quakes (defendants). The case was resolved in the trial court by summary judgment entered in favor of defendants.

        Defendants were able to persuade the trial court, under the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696), that defendants owed no duty to plaintiff, as a spectator, to protect him from foul balls. Such rationalization was faulty. Under Knight, defendants had a duty not to increase the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume. As a result, a triable issue of fact remained, namely whether the Quakes' mascot cavorting in the stands and distracting plaintiff's attention, while the game was in progress, constituted a breach of that duty, i.e., constituted negligence in the form of increasing the inherent risk to plaintiff of being struck by a foul ball.

        Thus, the trial court improperly granted the motion for summary judgment and it must be reversed accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

        In the action, filed after his injury, plaintiff's complaint was styled in a single count, a refreshing example of clear and concise pleading. The key [56 Cal.App.4th 115] charging allegations were contained in two paragraphs: "5. On said date and some time after the stated time and after the seventh inning, 'Tremor' the Quake's mascot, came up into the stadium in the area where plaintiff and his group were seated. Tremor was accompanied by an usher as he performed antics and entertained the crowd. Tremor is a person who wears a dinosaur costume with a long protruding tail. As John Lowe sat in his assigned seat, he was facing forward and looking toward the playing field when suddenly, and without warning or his consent, his right shoulder was touched by the tail of Tremor's costume. As he turned to his right to see who, or what, was touching him, baseball play had resumed and a batted ball, believed to be a foul ball, hit the plaintiff on the left side of his face breaking multiple facial bones. [p] 6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

        After an unsuccessful demurrer, defendants noticed a motion for summary judgment. ¹

        The notice contained no recitation of the grounds for the motion. However, as required by statute, defendants filed a separate statement of undisputed facts. Without the accompanying tabulation here of evidence for such statement of facts, they included: "1. On July 26, 1994, at approximately 7:05 p.m., plaintiff was in attendance at a baseball game between the Rancho Cucamonga Quakes and the San Bernardino Spirit at the Epicenter baseball facility and was seated in an area of

Page 107

        [56 Cal.App.4th 116] As evidentiary support for their motion, defendants filed the declaration of Joseph M. Gagliardi, president of the California League of Professional Baseball. Such declaration pointed out that seven of the ten teams in the California League have mascots. Among other things, the Gagliardi declaration stated, "[m]ost of the mascots have taken on a specific caricature such as Disney/Warner Brothers animations for each team. They are personable in their duties and responsibilities and try to make as much contact with the public to keep fan interest active. Fans have become accustomed to having the mascots entertain them. The mascots perform their routines nightly on the playing field and in the public seating area. [p] While the clubs encourage the mascots' interaction, especially with the young children so that they are comfortable at a ballpark game situation, the mascots' activities include keeping the fans informed, generating fan participation in promotions/advertisements, and helping with crowd control. Greeting the customer is an essential part of the ball club's public relations efforts." Defendants also filed extended excerpts of plaintiff's deposition, supported by the authenticating declaration of James L. Price, counsel for plaintiff. These deposition excerpts provide an insight into how plaintiff was injured:

        "Q ... Where was the mascot at the time that the foul ball was hit?

        "A Directly behind me.

. . . . .

        "Q How long had the mascot been directly behind you at the time you were hit?

        "A I would say probably two minutes.

        "Q Was the mascot standing in the same place for that long?

        "A He was moving around back and forth. But whatever he was doing, he was doing it directly behind my seat.

        "Q So he was at the row or in the row behind your row?

        "A Our row of seats backed up to an aisle. He was standing in the aisle directly behind my seat.

. . . . .

        "Q And at the time that you were hit, the mascot was standing behind your row of seats in the aisle?

        [56 Cal.App.4th 117] "A Yes.

        "Q Did any part of the mascot's costume or person touch you before you were hit?

        "A Yes.

        "Q And what or how were you touched by this mascot?

        "A With his tail.

        "Q When did that occur in relationship to when you were hit by the ball?

        "A Well, during that approximate two-minute span he was doing his act. And I felt this bam, bam, bam, on the back of my head and shoulders, and I turned around to see what he was doing....

        "Q You felt something on your shoulders?

        "A Right.

        "Q How do you know it was the tail that tapped you on the shoulder?

        "A I turned around and looked.

. . . . .

        "Q And when you turned around and looked, what did you see?

        "A Well, I noticed that he was doing his antics to the crowd that was in the immediate area. And I saw that as he was turning his body, his tail was hitting me.

Page 108

        "Q Is that something that you actually saw or is that something that you assumed that the tail was hitting you?

        "A No, I saw the tail.

. . . . .

        [p] "I could see the stump of the tail hitting me....

. . . . .

        "Q All right. Were you annoyed by the mascot's tail tapping you on the shoulder?

        [56 Cal.App.4th 118] "A Initially, no, but as it continued, it was a little bothersome.

. . . . .

        "Q Where were you looking at the moment the ball was hit?

        "A I had just turned my head towards the field as the ball arrived.

        "Q And in terms of timing, was it almost instantaneous that you turned your head to the field and got hit?

        "A Yes.

. . . . .

        "Q Where were you looking immediately before you turned your head toward the field?

        "A Up at Tremor.

. . . . .

        "Q And at that time you were looking at Tremor immediately before turning your head back to the field and getting hit, was the reason that you were looking at Tremor that his tail had just tapped you on the shoulder again and you turned around and looked?

        "A Yes.

. . . . .

        "Q Were you eating or drinking anything at that time?

        "A I was not eating anything, there was no drink in my hand...."

        Plaintiff filed opposition to the motion for summary judgment. Such opposition included a response to defendants' undisputed statement of facts. As to defendants' statement No. 2, namely that "plaintiff was struck by a foul ball by the Quakes mascot, Tremor, who was entertaining in the area where plaintiff was seated," plaintiff disputed it. In direct response, plaintiff declared, "[p]laintiff's complaint is mis-stated [sic ]. Plaintiff was touched by the mascot, Tremor, without warning or consent, after baseball play resumed. Plaintiff was hit in the face by a foul ball as he turned to see who or what was touching him in the area of his right shoulder. As he turned his head [56 Cal.App.4th 119] back, a batted baseball hit the left side of the plaintiff's face breaking multiple facial bones. Paragraph five of plaintiff's complaint."

        As to defendants' statement No. 12, namely that "[t]he mascots have become an intrical [sic ] part of the game (per declaration of Joseph Gagliardi)," plaintiff disputed it. In direct response, plaintiff declared, "[t]he statement of Joe Gagliardi is a conclusion of a non-expert. It is also unintelligible since there is no such word as 'intrical' in Webster's Abriged [sic ] Dictionary. According to the Press Enterprise article page 2, EXHIBIT 'D[,'] mascots are needed to make money ... but are not essential to the baseball game. Admission number 4, Mr. Lowe's Request For Admissions, Set One, both defendants admit the game can be played without the mascot being there. [ ]EXHIBIT 'E[.'] A mascot is a marketing tool, not an integral part of the game of baseball. [ ]Deposition of Mark Monninger [Tremor] page 15, Lines 4 through 14. EXHIBIT 'F[.']"

        Otherwise, plaintiff objected to the declaration of Joseph Gagliardi, particularly that " '[t]he mascots have become an intrical [sic] part of the game.' " The objection noted further that "[t]his is hearsay without any applicable exception. In addition, non-experts, such as Mr. Gagliardi, are required to state facts rather than conclusions, Chatman v. Alameda County Flood Control [etc.] Dist[.] (1986) 183 Cal.App.3d 424, 228 Cal.Rptr. 257, 260. Plaintiff asks that Mr. Gagliardi's conclusions not be allowed into evidence. 2. Objection is made as to the [undated] article from the Riverside Press Enterprise newspaper. This is hearsay in that defendants are attempting to use this article to prove a matter here in dispute. This too is hearsay without any applicable exception. Plaintiff asks that the newspaper article not be allowed into evidence, or, in the alternative,

Page 109

        In the points and authorities filed in opposition to the motion, it was stated that "[f]or a period of at least two minutes, Tremor whacked the back of Mr. Lowe's head; back and shoulder with the tail portion of the Tremor costume. Finally, after being touched repeatedly in an annoying and unprivileged manner, Mr. Lowe turned around and saw that he was indeed being touched at that moment by the tail of the Tremor costume. As Mr. Lowe turned his face back toward the field, he was not aware that the game had again resumed and he was hit in the face by a line drive foul ball. The foul ball fractured numerous facial bones and caused dental injuries."

        Otherwise, the points and authorities observed, "[t]he California Supreme Court has stated (in the context of injuries to participants) that a defendant generally has no duty to eliminate, or protect a plaintiff from risks inherent [56 Cal.App.4th 120] to the sport itself, but has only a duty not to increase those risks, Knight [,] supra[,] [sic ] at pages 315 and 316[, 11 Cal.Rptr.2d 2, 834 P.2d 696]. A mascot is not integral to the sport of baseball, as is required by Knight [,] supra[,] [sic ]. The unsupported statement of Mr. Gagliardi is nothing more than a self-serving statement of a party defendant. What a mascot is, according to the deposition of Mark Monninger [Tremor] at page 14, lines 10 through 25, see EXHIBIT 'A' page number 1, is a marketing tool or simply entertainment. Mark Monninger states in his deposition that he was sick two days during the 1994 season. The baseball game went on without him there[,] page 15[,] lines 4 through 15. Defendants['] Admission number 4 is that the game can be played without Tremor being present. They further [a]dmit in Admission number 10 that Tremor could entertain without even going into the stands, EXHIBIT 'B[.'] If that safety practice had been in place during 1994, Mr. Lowe would not have been interfered with and injured by the foul ball."

        Further, within the parameters of the motion for summary judgment, plaintiff pointed out that "defendants have not addressed the issues raised in paragraph Six of Mr. Lowe's Complaint." That paragraph, earlier quoted, alleged, "6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

        Defendants replied to plaintiff's opposition. Such reply contained no evidentiary filings; it consisted only of additional points and authorities. The thrust of the filings was to argue that mascots have long been an "integral" part of large publicly attended sporting events.

        With these filings before it, the trial court entertained oral argument of defendants' motion. At the outset, the court announced its tentative ruling. "The Defendant's [sic ] Motion for Summary Judgment is granted. There are no triable issues of material fact. Plaintiff's claim is barred by the doctrine of primary assumption of the risk. Where a spectator at a ball game has chosen not to sit in a screened area, that person assumes the risk of being hit by a foul ball. I think it falls within the case of Neinstein versus Los Angeles Dodgers, Inc. [(1986)], located at 185 Cal.App.3d 176[, 229 Cal.Rptr. 612]." Despite extended argument by counsel for plaintiff, the tentative order above noted became the final order of the court.

        A minute order was issued which indicated that the motion was granted, there being "no triable issue of material facts." Thereafter, a written judgment of dismissal, reflecting the minute order, was signed and entered. It [56 Cal.App.4th 121] recited that "[s]aid dismissal is premised upon the court's finding that there is no triable issue as to material fact, and that the moving parties are entitled to a judgment as a matter of law." This appeal followed.

        In pursuing his appeal, plaintiff, challenging to the propriety of the summary judgment, assigned as trial court error: (1) its

Page 110

        In responding to the appeal, defendants rely on a collection of cases which are readily distinguishable on their facts from those facts in this record and hence, because they are wholly inapposite, require no further discussion or analysis.

        We turn then to a consideration of the rationale relied on by plaintiff. In so doing, we are reminded that it is a summary judgment which is here for review. Such review is independent of that in the trial court but mirrors exactly the scenario followed there. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674.) That scenario is guided by precise statutory prescriptions set forth in section 437c of the Code of Civil Procedure. Of key significance are subdivisions (o)(2) and (c).

        Subdivision (o)(2) provides in pertinent part, "[a] defendant ... has met his or her burden of showing that [the plaintiff's] cause of action has no merit if that party has shown ... that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to ... a defense thereto."

        Subdivision (c) provides that, "[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Italics added.)

        [56 Cal.App.4th 122] Under this prescription, the first step is an analysis of the pleadings, i.e., the complaint and answer, including any affirmative defenses that may be contained therein. "The pleadings define the issues to be considered on a motion for summary judgment." (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252, 38 Cal.Rptr.2d 65.)

        The next step in the analysis calls for an evaluation of the moving defendant's effort to meet the burden of showing that plaintiff's cause of action has no merit or that there is a complete defense to it. This showing can also rely on filings by plaintiff in opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743, 750-751, 41 Cal.Rptr.2d 719.) In any event, once a prima facie showing is made and hence that the "burden" has been met, it shifts to the plaintiff to show that a triable issue of material fact exists within the framework of that fixed by the pleadings. (Code Civ. Proc., § 437c, subd. (o)(2).)

        Once the burden has shifted, it must next be determined if the filings in opposition succeeded in raising a triable issue of material fact. If they did, the motion must be denied; if they did not, the motion must be granted. (Code Civ. Proc., § 437c, subd. (c); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653.)

        As earlier noted, our review precisely mirrors what occurs in the trial court, i.e., we make a de novo evaluation which, after it be shown that there are no disputed issues of material fact, requires a legal determination of the moving party's entitlement to judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844, 30 Cal.Rptr.2d 768.)

        In compliance with the foregoing, we turn to the first step in the system of analysis above fashioned, i.e., to define the issues framed by the pleadings. With regard to the record provided us, this step is somewhat difficult to perform. As earlier noted, there was no copy of defendants' answer contained in the clerk's transcript. However, we can extrapolate from other filings that all of the allegations describing the gravamen of plaintiff's grievance were denied. Such grievance

Page 111

        Otherwise, we assume that the answer introduced into the pleading mix the affirmative defense of the doctrine of primary assumption of the risk. We [56 Cal.App.4th 123] assume such based on defendants' points and authorities found at page 72 of the clerk's transcript.

        As a practical matter, it appears to us that paragraph six actually anticipated the possibility of defendants' urging the doctrine of the primary assumption of the risk; hence, we shall treat such conclusion as framing the dispositive issue of fact, namely whether the mascot's antics and their resulting distraction of the plaintiff operated to increase the inherent risks assumed by a spectator at a baseball game. In this regard, as plainly stated in Knight, "... it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Knight v. Jewett, supra, 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The rule is no different in instances involving spectators.

        The next step in the summary judgment analysis is to determine whether defendants' evidentiary filings in support of their motion were sufficient to provide the factual basis for making their affirmative defense available and thereby shifting the burden to plaintiff to demonstrate a triable issue of fact with reference thereto. (Code Civ. Proc., § 437c, subd. (o)(2).)

        As indicated earlier in the opinion, as part of the synopsis of the trial court proceedings, the only evidentiary filings by defendants in support of their motion were: (1) the declaration of Joseph Gagliardi; (2) a copy of a clipping from the Riverside Press Enterprise about mascots; and (3) excerpts of plaintiff's deposition. As prescribed by Knight, the burden to be surmounted by such filings was to show that any risk to spectators caused by the antics of the mascot did not operate to increase those inherent risks to which spectators at baseball games are unavoidably exposed. In other words, the key inquiry here is whether the risk which led to plaintiff's injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game. In the first instance, foul balls hit into the spectators' area clearly create a risk of injury. If such foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. Can the same thing be said about the antics of the mascot? We think not. Actually, the declaration of Mark Monninger, the person who dressed up as Tremor, recounted that there were occasional games played when he was not there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.

        Our view of the entire record leads to the conclusion that defendants offered nothing in the way of either relevant or competent evidence to [56 Cal.App.4th 124] resolve prima facie the dispositive issue of fact above recited; thus they failed to shift to plaintiff the burden contemplated by section 437c, subdivision (o)(2) of the Code of Civil Procedure. In this posture, the trial court was presented with a circumstance illustrated by Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 635. In that case, a summary judgment was reversed by the reviewing court. Relying on Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 41 Cal.Rptr.2d 740, the Bashi court stated, " '[w]here the evidence presented by defendant does not support judgment in [their] favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.' " (Id. at p. 1318, 53 Cal.Rptr.2d 635.) That is what the record shows here. (See also Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1157, 203 Cal.Rptr.

Page 112

        Even so, we note further, under the holding in Neinstein v. Los Angeles Dodgers, supra, 185 Cal.App.3d 176, 229 Cal.Rptr. 612, absent any distraction by the mascot, that plaintiff could have assumed the risk. Justice Compton, writing in Neinstein, observed that the plaintiff "voluntarily elected to sit in a seat which was clearly unprotected by any form of screening.... She was sufficiently warned of the risk by common knowledge of the nature of the sport.... The Dodgers were under no duty to do anything further to protect her from the hazard." (Id. at p. 184, 229 Cal.Rptr. 612.) However, in Neinstein, there was no mascot bothering the plaintiff and thus distracting her attention from the playing field. Thus, Neinstein is readily distinguishable.

        The same can be said of the Clapman case decided by the Court of Appeals of New York. In that case, a spectator at Yankee Stadium was struck by a foul ball. He contended that a vendor moving in front of him obscured his view. As to this contention, the court said that "respondents had no duty to insure that vendors moving about the stadium did not interfere with Clapman's view." (Clapman v. City of New York, supra, 63 N.Y.2d 669, 479 N.Y.S.2d 515, 468 N.E.2d 697, 698.) That is not this case. In Clapman, the plaintiff at all times was facing the field of play. Here, plaintiff, because of the distraction, had turned away. This presents a substantially different set of facts, recognized at once by anyone who has ever attended a professional baseball game.

        Based upon the foregoing analysis, we hold that the trial court improperly granted the motion for summary judgment.

[56 Cal.App.4th 125]

DISPOSITION

        The judgment is reversed with directions to the trial court to vacate its order of January 7, 1996, and to enter a new and different order denying defendants' motion for summary judgment.

        RICHLI, Acting P.J., and WARD, J., concur.

---------------

* Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

1 The record on appeal does not contain a copy of an answer to the complaint; however, we assume that an answer was filed. It would not have been possible to move for summary judgment unless the case were at issue.

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        [56 Cal.App.4th 113] Marjorie A. Seapy, Claremont, for Plaintiff and Appellant.

        Roberts and Morgan, and Arthur K. Cunningham, Riverside, for Defendants and Respondents.

[56 Cal.App.4th 114]

OPINION

        McDANIEL, Associate Justice. ^*

        John Lowe (Plaintiff) was seriously injured when struck on the left side of his face by a foul ball while attending a professional baseball

Page 106

        The Quakes, at their home games, feature a mascot who goes by the name of "Tremor." He is a caricature of a dinosaur, standing seven feet tall with a tail which protrudes out from the costume. Tremor was performing his antics in the stands just along the left field foul line. Tremor was behind plaintiff and had been touching him with his (Tremor's) tail. Plaintiff was thereby distracted and turned toward Tremor. In the next moment, just as plaintiff returned his attention to the playing field, he was struck by a foul ball before he could react to it.

        Very serious injuries resulted from the impact. As a result, the underlying action was commenced against the California League of Professional Baseball and Valley Baseball Club, Inc., which does business as the Quakes (defendants). The case was resolved in the trial court by summary judgment entered in favor of defendants.

        Defendants were able to persuade the trial court, under the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696), that defendants owed no duty to plaintiff, as a spectator, to protect him from foul balls. Such rationalization was faulty. Under Knight, defendants had a duty not to increase the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume. As a result, a triable issue of fact remained, namely whether the Quakes' mascot cavorting in the stands and distracting plaintiff's attention, while the game was in progress, constituted a breach of that duty, i.e., constituted negligence in the form of increasing the inherent risk to plaintiff of being struck by a foul ball.

        Thus, the trial court improperly granted the motion for summary judgment and it must be reversed accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

        In the action, filed after his injury, plaintiff's complaint was styled in a single count, a refreshing example of clear and concise pleading. The key [56 Cal.App.4th 115] charging allegations were contained in two paragraphs: "5. On said date and some time after the stated time and after the seventh inning, 'Tremor' the Quake's mascot, came up into the stadium in the area where plaintiff and his group were seated. Tremor was accompanied by an usher as he performed antics and entertained the crowd. Tremor is a person who wears a dinosaur costume with a long protruding tail. As John Lowe sat in his assigned seat, he was facing forward and looking toward the playing field when suddenly, and without warning or his consent, his right shoulder was touched by the tail of Tremor's costume. As he turned to his right to see who, or what, was touching him, baseball play had resumed and a batted ball, believed to be a foul ball, hit the plaintiff on the left side of his face breaking multiple facial bones. [p] 6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

        After an unsuccessful demurrer, defendants noticed a motion for summary judgment. ¹

        The notice contained no recitation of the grounds for the motion. However, as required by statute, defendants filed a separate statement of undisputed facts. Without the accompanying tabulation here of evidence for such statement of facts, they included: "1. On July 26, 1994, at approximately 7:05 p.m., plaintiff was in attendance at a baseball game between the Rancho Cucamonga Quakes and the San Bernardino Spirit at the Epicenter baseball facility and was seated in an area of

Page 107

        [56 Cal.App.4th 116] As evidentiary support for their motion, defendants filed the declaration of Joseph M. Gagliardi, president of the California League of Professional Baseball. Such declaration pointed out that seven of the ten teams in the California League have mascots. Among other things, the Gagliardi declaration stated, "[m]ost of the mascots have taken on a specific caricature such as Disney/Warner Brothers animations for each team. They are personable in their duties and responsibilities and try to make as much contact with the public to keep fan interest active. Fans have become accustomed to having the mascots entertain them. The mascots perform their routines nightly on the playing field and in the public seating area. [p] While the clubs encourage the mascots' interaction, especially with the young children so that they are comfortable at a ballpark game situation, the mascots' activities include keeping the fans informed, generating fan participation in promotions/advertisements, and helping with crowd control. Greeting the customer is an essential part of the ball club's public relations efforts." Defendants also filed extended excerpts of plaintiff's deposition, supported by the authenticating declaration of James L. Price, counsel for plaintiff. These deposition excerpts provide an insight into how plaintiff was injured:

        "Q ... Where was the mascot at the time that the foul ball was hit?

        "A Directly behind me.

. . . . .

        "Q How long had the mascot been directly behind you at the time you were hit?

        "A I would say probably two minutes.

        "Q Was the mascot standing in the same place for that long?

        "A He was moving around back and forth. But whatever he was doing, he was doing it directly behind my seat.

        "Q So he was at the row or in the row behind your row?

        "A Our row of seats backed up to an aisle. He was standing in the aisle directly behind my seat.

. . . . .

        "Q And at the time that you were hit, the mascot was standing behind your row of seats in the aisle?

        [56 Cal.App.4th 117] "A Yes.

        "Q Did any part of the mascot's costume or person touch you before you were hit?

        "A Yes.

        "Q And what or how were you touched by this mascot?

        "A With his tail.

        "Q When did that occur in relationship to when you were hit by the ball?

        "A Well, during that approximate two-minute span he was doing his act. And I felt this bam, bam, bam, on the back of my head and shoulders, and I turned around to see what he was doing....

        "Q You felt something on your shoulders?

        "A Right.

        "Q How do you know it was the tail that tapped you on the shoulder?

        "A I turned around and looked.

. . . . .

        "Q And when you turned around and looked, what did you see?

        "A Well, I noticed that he was doing his antics to the crowd that was in the immediate area. And I saw that as he was turning his body, his tail was hitting me.

Page 108

        "Q Is that something that you actually saw or is that something that you assumed that the tail was hitting you?

        "A No, I saw the tail.

. . . . .

        [p] "I could see the stump of the tail hitting me....

. . . . .

        "Q All right. Were you annoyed by the mascot's tail tapping you on the shoulder?

        [56 Cal.App.4th 118] "A Initially, no, but as it continued, it was a little bothersome.

. . . . .

        "Q Where were you looking at the moment the ball was hit?

        "A I had just turned my head towards the field as the ball arrived.

        "Q And in terms of timing, was it almost instantaneous that you turned your head to the field and got hit?

        "A Yes.

. . . . .

        "Q Where were you looking immediately before you turned your head toward the field?

        "A Up at Tremor.

. . . . .

        "Q And at that time you were looking at Tremor immediately before turning your head back to the field and getting hit, was the reason that you were looking at Tremor that his tail had just tapped you on the shoulder again and you turned around and looked?

        "A Yes.

. . . . .

        "Q Were you eating or drinking anything at that time?

        "A I was not eating anything, there was no drink in my hand...."

        Plaintiff filed opposition to the motion for summary judgment. Such opposition included a response to defendants' undisputed statement of facts. As to defendants' statement No. 2, namely that "plaintiff was struck by a foul ball by the Quakes mascot, Tremor, who was entertaining in the area where plaintiff was seated," plaintiff disputed it. In direct response, plaintiff declared, "[p]laintiff's complaint is mis-stated [sic ]. Plaintiff was touched by the mascot, Tremor, without warning or consent, after baseball play resumed. Plaintiff was hit in the face by a foul ball as he turned to see who or what was touching him in the area of his right shoulder. As he turned his head [56 Cal.App.4th 119] back, a batted baseball hit the left side of the plaintiff's face breaking multiple facial bones. Paragraph five of plaintiff's complaint."

        As to defendants' statement No. 12, namely that "[t]he mascots have become an intrical [sic ] part of the game (per declaration of Joseph Gagliardi)," plaintiff disputed it. In direct response, plaintiff declared, "[t]he statement of Joe Gagliardi is a conclusion of a non-expert. It is also unintelligible since there is no such word as 'intrical' in Webster's Abriged [sic ] Dictionary. According to the Press Enterprise article page 2, EXHIBIT 'D[,'] mascots are needed to make money ... but are not essential to the baseball game. Admission number 4, Mr. Lowe's Request For Admissions, Set One, both defendants admit the game can be played without the mascot being there. [ ]EXHIBIT 'E[.'] A mascot is a marketing tool, not an integral part of the game of baseball. [ ]Deposition of Mark Monninger [Tremor] page 15, Lines 4 through 14. EXHIBIT 'F[.']"

        Otherwise, plaintiff objected to the declaration of Joseph Gagliardi, particularly that " '[t]he mascots have become an intrical [sic] part of the game.' " The objection noted further that "[t]his is hearsay without any applicable exception. In addition, non-experts, such as Mr. Gagliardi, are required to state facts rather than conclusions, Chatman v. Alameda County Flood Control [etc.] Dist[.] (1986) 183 Cal.App.3d 424, 228 Cal.Rptr. 257, 260. Plaintiff asks that Mr. Gagliardi's conclusions not be allowed into evidence. 2. Objection is made as to the [undated] article from the Riverside Press Enterprise newspaper. This is hearsay in that defendants are attempting to use this article to prove a matter here in dispute. This too is hearsay without any applicable exception. Plaintiff asks that the newspaper article not be allowed into evidence, or, in the alternative,

Page 109

        In the points and authorities filed in opposition to the motion, it was stated that "[f]or a period of at least two minutes, Tremor whacked the back of Mr. Lowe's head; back and shoulder with the tail portion of the Tremor costume. Finally, after being touched repeatedly in an annoying and unprivileged manner, Mr. Lowe turned around and saw that he was indeed being touched at that moment by the tail of the Tremor costume. As Mr. Lowe turned his face back toward the field, he was not aware that the game had again resumed and he was hit in the face by a line drive foul ball. The foul ball fractured numerous facial bones and caused dental injuries."

        Otherwise, the points and authorities observed, "[t]he California Supreme Court has stated (in the context of injuries to participants) that a defendant generally has no duty to eliminate, or protect a plaintiff from risks inherent [56 Cal.App.4th 120] to the sport itself, but has only a duty not to increase those risks, Knight [,] supra[,] [sic ] at pages 315 and 316[, 11 Cal.Rptr.2d 2, 834 P.2d 696]. A mascot is not integral to the sport of baseball, as is required by Knight [,] supra[,] [sic ]. The unsupported statement of Mr. Gagliardi is nothing more than a self-serving statement of a party defendant. What a mascot is, according to the deposition of Mark Monninger [Tremor] at page 14, lines 10 through 25, see EXHIBIT 'A' page number 1, is a marketing tool or simply entertainment. Mark Monninger states in his deposition that he was sick two days during the 1994 season. The baseball game went on without him there[,] page 15[,] lines 4 through 15. Defendants['] Admission number 4 is that the game can be played without Tremor being present. They further [a]dmit in Admission number 10 that Tremor could entertain without even going into the stands, EXHIBIT 'B[.'] If that safety practice had been in place during 1994, Mr. Lowe would not have been interfered with and injured by the foul ball."

        Further, within the parameters of the motion for summary judgment, plaintiff pointed out that "defendants have not addressed the issues raised in paragraph Six of Mr. Lowe's Complaint." That paragraph, earlier quoted, alleged, "6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

        Defendants replied to plaintiff's opposition. Such reply contained no evidentiary filings; it consisted only of additional points and authorities. The thrust of the filings was to argue that mascots have long been an "integral" part of large publicly attended sporting events.

        With these filings before it, the trial court entertained oral argument of defendants' motion. At the outset, the court announced its tentative ruling. "The Defendant's [sic ] Motion for Summary Judgment is granted. There are no triable issues of material fact. Plaintiff's claim is barred by the doctrine of primary assumption of the risk. Where a spectator at a ball game has chosen not to sit in a screened area, that person assumes the risk of being hit by a foul ball. I think it falls within the case of Neinstein versus Los Angeles Dodgers, Inc. [(1986)], located at 185 Cal.App.3d 176[, 229 Cal.Rptr. 612]." Despite extended argument by counsel for plaintiff, the tentative order above noted became the final order of the court.

        A minute order was issued which indicated that the motion was granted, there being "no triable issue of material facts." Thereafter, a written judgment of dismissal, reflecting the minute order, was signed and entered. It [56 Cal.App.4th 121] recited that "[s]aid dismissal is premised upon the court's finding that there is no triable issue as to material fact, and that the moving parties are entitled to a judgment as a matter of law." This appeal followed.

        In pursuing his appeal, plaintiff, challenging to the propriety of the summary judgment, assigned as trial court error: (1) its

Page 110

        In responding to the appeal, defendants rely on a collection of cases which are readily distinguishable on their facts from those facts in this record and hence, because they are wholly inapposite, require no further discussion or analysis.

        We turn then to a consideration of the rationale relied on by plaintiff. In so doing, we are reminded that it is a summary judgment which is here for review. Such review is independent of that in the trial court but mirrors exactly the scenario followed there. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674.) That scenario is guided by precise statutory prescriptions set forth in section 437c of the Code of Civil Procedure. Of key significance are subdivisions (o)(2) and (c).

        Subdivision (o)(2) provides in pertinent part, "[a] defendant ... has met his or her burden of showing that [the plaintiff's] cause of action has no merit if that party has shown ... that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to ... a defense thereto."

        Subdivision (c) provides that, "[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Italics added.)

        [56 Cal.App.4th 122] Under this prescription, the first step is an analysis of the pleadings, i.e., the complaint and answer, including any affirmative defenses that may be contained therein. "The pleadings define the issues to be considered on a motion for summary judgment." (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252, 38 Cal.Rptr.2d 65.)

        The next step in the analysis calls for an evaluation of the moving defendant's effort to meet the burden of showing that plaintiff's cause of action has no merit or that there is a complete defense to it. This showing can also rely on filings by plaintiff in opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743, 750-751, 41 Cal.Rptr.2d 719.) In any event, once a prima facie showing is made and hence that the "burden" has been met, it shifts to the plaintiff to show that a triable issue of material fact exists within the framework of that fixed by the pleadings. (Code Civ. Proc., § 437c, subd. (o)(2).)

        Once the burden has shifted, it must next be determined if the filings in opposition succeeded in raising a triable issue of material fact. If they did, the motion must be denied; if they did not, the motion must be granted. (Code Civ. Proc., § 437c, subd. (c); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653.)

        As earlier noted, our review precisely mirrors what occurs in the trial court, i.e., we make a de novo evaluation which, after it be shown that there are no disputed issues of material fact, requires a legal determination of the moving party's entitlement to judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844, 30 Cal.Rptr.2d 768.)

        In compliance with the foregoing, we turn to the first step in the system of analysis above fashioned, i.e., to define the issues framed by the pleadings. With regard to the record provided us, this step is somewhat difficult to perform. As earlier noted, there was no copy of defendants' answer contained in the clerk's transcript. However, we can extrapolate from other filings that all of the allegations describing the gravamen of plaintiff's grievance were denied. Such grievance

Page 111

        Otherwise, we assume that the answer introduced into the pleading mix the affirmative defense of the doctrine of primary assumption of the risk. We [56 Cal.App.4th 123] assume such based on defendants' points and authorities found at page 72 of the clerk's transcript.

        As a practical matter, it appears to us that paragraph six actually anticipated the possibility of defendants' urging the doctrine of the primary assumption of the risk; hence, we shall treat such conclusion as framing the dispositive issue of fact, namely whether the mascot's antics and their resulting distraction of the plaintiff operated to increase the inherent risks assumed by a spectator at a baseball game. In this regard, as plainly stated in Knight, "... it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Knight v. Jewett, supra, 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The rule is no different in instances involving spectators.

        The next step in the summary judgment analysis is to determine whether defendants' evidentiary filings in support of their motion were sufficient to provide the factual basis for making their affirmative defense available and thereby shifting the burden to plaintiff to demonstrate a triable issue of fact with reference thereto. (Code Civ. Proc., § 437c, subd. (o)(2).)

        As indicated earlier in the opinion, as part of the synopsis of the trial court proceedings, the only evidentiary filings by defendants in support of their motion were: (1) the declaration of Joseph Gagliardi; (2) a copy of a clipping from the Riverside Press Enterprise about mascots; and (3) excerpts of plaintiff's deposition. As prescribed by Knight, the burden to be surmounted by such filings was to show that any risk to spectators caused by the antics of the mascot did not operate to increase those inherent risks to which spectators at baseball games are unavoidably exposed. In other words, the key inquiry here is whether the risk which led to plaintiff's injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game. In the first instance, foul balls hit into the spectators' area clearly create a risk of injury. If such foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. Can the same thing be said about the antics of the mascot? We think not. Actually, the declaration of Mark Monninger, the person who dressed up as Tremor, recounted that there were occasional games played when he was not there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.

        Our view of the entire record leads to the conclusion that defendants offered nothing in the way of either relevant or competent evidence to [56 Cal.App.4th 124] resolve prima facie the dispositive issue of fact above recited; thus they failed to shift to plaintiff the burden contemplated by section 437c, subdivision (o)(2) of the Code of Civil Procedure. In this posture, the trial court was presented with a circumstance illustrated by Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 635. In that case, a summary judgment was reversed by the reviewing court. Relying on Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 41 Cal.Rptr.2d 740, the Bashi court stated, " '[w]here the evidence presented by defendant does not support judgment in [their] favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.' " (Id. at p. 1318, 53 Cal.Rptr.2d 635.) That is what the record shows here. (See also Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1157, 203 Cal.Rptr.

Page 112

        Even so, we note further, under the holding in Neinstein v. Los Angeles Dodgers, supra, 185 Cal.App.3d 176, 229 Cal.Rptr. 612, absent any distraction by the mascot, that plaintiff could have assumed the risk. Justice Compton, writing in Neinstein, observed that the plaintiff "voluntarily elected to sit in a seat which was clearly unprotected by any form of screening.... She was sufficiently warned of the risk by common knowledge of the nature of the sport.... The Dodgers were under no duty to do anything further to protect her from the hazard." (Id. at p. 184, 229 Cal.Rptr. 612.) However, in Neinstein, there was no mascot bothering the plaintiff and thus distracting her attention from the playing field. Thus, Neinstein is readily distinguishable.

        The same can be said of the Clapman case decided by the Court of Appeals of New York. In that case, a spectator at Yankee Stadium was struck by a foul ball. He contended that a vendor moving in front of him obscured his view. As to this contention, the court said that "respondents had no duty to insure that vendors moving about the stadium did not interfere with Clapman's view." (Clapman v. City of New York, supra, 63 N.Y.2d 669, 479 N.Y.S.2d 515, 468 N.E.2d 697, 698.) That is not this case. In Clapman, the plaintiff at all times was facing the field of play. Here, plaintiff, because of the distraction, had turned away. This presents a substantially different set of facts, recognized at once by anyone who has ever attended a professional baseball game.

        Based upon the foregoing analysis, we hold that the trial court improperly granted the motion for summary judgment.

[56 Cal.App.4th 125]

DISPOSITION

        The judgment is reversed with directions to the trial court to vacate its order of January 7, 1996, and to enter a new and different order denying defendants' motion for summary judgment.

        RICHLI, Acting P.J., and WARD, J., concur.

---------------

* Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

1 The record on appeal does not contain a copy of an answer to the complaint; however, we assume that an answer was filed. It would not have been possible to move for summary judgment unless the case were at issue.

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

Mr. Herbert Wechsler, with whom Solicitor General Biddle, Assistant Attorney General Berge, and Messrs. Warner W. Gardner, Alfred B. Teton, Rene A. Viosca,and Robert Weinstein were on the brief, for the United States.

Mr. Warren O. Coleman, with whom Mr. Charles W. Kehl was on the brief, for appellees.

MR. JUSTICE STONE delivered the opinion of the Court.

Two counts of an indictment found in a federal district court charged that appellees, Commissioners of Elections, conducting a primary election under Louisiana law, to nominate a candidate of the Democratic Party for representative in Congress, willfully altered and falsely counted and certified the ballots of voters cast in the primary election. The questions for decision are whether the right of qualified voters to vote in the Louisiana primary and to have their ballots counted is a right "secured by the Constitution" within the meaning of §§ 19 and 20 of the Criminal Code, and whether the acts of appellees charged in the indictment violate those sections.

On September 25, 1940, appellees were indicted in the District Court for Eastern Louisiana for violations of §§ 19 and 20 of the Criminal Code, 18 U.S.C. §§ 51, 52. The first count of the indictment alleged that a primary election was held on September 10, 1940, for the purpose of nominating a candidate of the Democratic Party for the office of Representative in Congress for the Second Congressional District of Louisiana, to be chosen at an election to be held on November 10th; that in that district nomination as a candidate of the Democratic Party is and always has been equivalent to an election; that appellees were Commissioners of Election, selected in accordance with the Louisiana law to conduct the primary in the Second Precinct of the Tenth Ward of New Orleans, in which there were five hundred and thirty-seven citizens and qualified voters.

The charge, based on these allegations, was that the appellees conspired with each other, and with others unknown, to injure and oppress citizens in the free exercise and enjoyment of rights and privileges secured to them by the Constitution and Laws of the United States, namely, (1) the right of qualified voters who cast their ballots in the primary election to have their ballots counted as cast for the candidate of their choice, and (2) the right of the candidates to run for the office of Congressman and to have the votes in favor of their nomination counted as cast. The overt acts alleged were that the appellees altered eighty-three ballots cast for one candidate and fourteen cast for another, marking and counting them as votes for a third candidate, and that they falsely certified the number of votes cast for the respective candidates to the chairman of the Second Congressional District Committee.

The second count, repeating the allegations of fact already detailed, charged that the appellees, as Commissioners of Election, willfully and under color of law subjected registered voters at the primary who were inhabitants of Louisiana to the deprivation of rights, privileges and immunities secured and protected by the Constitution and Laws of the United States, namely their right to cast their votes for the candidates of their choice and to have their votes counted as cast. It further charged that this deprivation was effected by the willful failure and refusal of defendants to count the votes as cast, by their alteration of the ballots, and by their false certification of the number of votes cast for the respective candidates in the manner already indicated.

The District Court sustained a demurrer to counts 1 and 2 on the ground that §§ 19 and 20 of the Criminal Code, under which the indictment was drawn, do not apply to the state of facts disclosed by the indictment, and that, if applied to those facts, §§ 19 and 20 are without constitutional sanction, citing United States v. Gradwell, 243 U.S. 476, 488, 489; Newberry v. United States, 256 U.S. 232. The case comes here on direct appeal from the District Court under the provisions of the Criminal Appeals Act, Judicial Code, § 238, 18 U.S.C. § 682; 28 U.S.C. § 345, which authorize an appeal by the United States from a decision or judgment sustaining a demurrer to an indictment where the decision or judgment is "based upon the invalidity or construction of the statute upon which the indictment is founded."

Upon such an appeal our review is confined to the questions of statutory construction and validity decided by the District Court. United States v. Patten, 226 U.S. 525; United States v. Birdsall, 233 U.S. 223, 230; United States v. Borden Co., 308 U.S. 188, 192-193. Hence, we do not pass upon various arguments advanced by appellees as to the sufficiency and construction of the indictment.

Section 19 of the Criminal Code condemns as a criminal offense any conspiracy to injure a citizen in the exercise "of any right or privilege secured to him by the Constitution or laws of the United States." Section 20 makes it a penal offense for anyone who, acting "under color of any law," "willfully subjects, or causes to be subjected, any inhabitant of any State . . . to the deprivation of any rights, privileges, and immunities secured and protected by the Constitution and laws of the United States." The Government argues that the right of a qualified voter in a Louisiana congressional primary election to have his vote counted as cast is a right secured by Article I, §§ 2 and 4 of the Constitution, and that a conspiracy to deprive the citizen of that right is a violation of § 19, and also that the willful action of appellees as state officials, in falsely counting the ballots at the primary election and in falsely certifying the count, deprived qualified voters of that right and of the equal protection of the laws guaranteed by the Fourteenth Amendment, all in violation of § 20 of the Criminal Code.

Article I, § 2 of the Constitution, commands that "The House of Representatives shall be composed of members chosen every second Year by the People of the several States and the Electors in each State shall have the qualifications requisite for electors of the most numerous Branch of the State Legislature." By § 4 of the same article "The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Such right as is secured by the Constitution to qualified voters to choose members of the House of Representatives is thus to be exercised in conformity to the requirements of state law subject to the restrictions prescribed by § 2 and to the authority conferred on Congress by § 4, to regulate the times, places and manner of holding elections for representatives.

We look then to the statutes of Louisiana here involved to ascertain the nature of the right which under the constitutional mandate they define and confer on the voter, and the effect upon its exercise of the acts with which appellees are charged, all with the view to determining, first, whether the right or privilege is one secured by the Constitution of the United States, second, whether the effect under the state statute of appellees' alleged acts is such that they operate to injure or oppress citizens in the exercise of that right within the meaning of § 19 and to deprive inhabitants of the state of that right within the meaning of § 20, and finally, whether §§ 19 and 20 respectively are in other respects applicable to the alleged acts of appellees.

Pursuant to the authority given by § 2 of Article I of the Constitution, and subject to the legislative power of Congress under § 4 of Article I, and other pertinent provisions of the Constitution, the states are given, and in fact exercise, a wide discretion in the formulation of a system for the choice by the people of representatives in Congress. In common with many other states, Louisiana has exercised that discretion by setting up machinery for the effective choice of party candidates for representative in Congress by primary elections, and by its laws it eliminates or seriously restricts the candidacy at the general election of all those who are defeated at the primary. All political parties, which are defined as those that have cast at least 5 per cent of the total vote at specified preceding elections, are required to nominate their candidates for representative by direct primary elections. Louisiana Act No. 46, Regular Session, 1940, §§ 1 and 3.

The primary is conducted by the state at public expense. Act No. 46, supra, § 35. The primary, as is the general election, is subject to numerous statutory regulations as to the time, place and manner of conducting the election, including provisions to insure that the ballots cast at the primary are correctly counted, and the results of the count correctly recorded and certified to the Secretary of State, whose duty it is to place the names of the successful candidates of each party on the official ballot.^[1] The Secretary of State is prohibited from placing on the official ballot the name of any person as a candidate for any political party not nominated in accordance with the provisions of the Act. Act 46, § 1.

One whose name does not appear on the primary ballot, if otherwise eligible to become a candidate at the general election, may do so in either of two ways: by filing nomination papers with the requisite number of signatures or by having his name "written in" on the ballot on the final election. Louisiana Act No. 224, Regular Session 1940, §§ 50, 73. Section 87 of Act No. 46 provides "No one who participates in the primary election of any political party shall have the right to participate in a primary election of any other political party, with the view of nominating opposing candidates, nor shall he be permitted to sign any nomination for any opposing candidate or candidates; nor shall he be permitted to be himself a candidate in opposition to anyone nominated at or through a primary election in which he took part."

Section 15 of Article VIII of the Constitution of Louisiana as amended by Act 80 of 1934, provides that "no person whose name is not authorized to be printed on the official ballot, as the nominee of a political party or as an independent candidate, shall be considered a candidate" unless he shall file in the appropriate office at least ten days before the general election a statement containing the correct name under which he is to be voted for, and containing the further statement that he is willing and consents to be voted for for that office. The article also provides that "no commissioners of election shall count a ballot as cast for any person whose name is not printed on the ballot or who does not become a candidate in the foregoing manner." Applying these provisions, the Louisiana Court of Appeals for the Parish of Orleans has held, in Serpas v. Trebucq, decided April 7, 1941, 1 So.2d 346, rehearing denied with opinion April 21, 1941, 1 So.2d 705, that an unsuccessful candidate at the primary may not offer himself as a candidate at a general election, and that votes for him may not lawfully be written into the ballot or counted at such an election.

The right to vote for a representative in Congress at the general election is, as a matter of law, thus restricted to the successful party candidate at the primary, to those not candidates at the primary who file nomination papers, and those whose names may be lawfully written into the ballot by the electors. Even if, as appellees argue, contrary to the decision in Serpas v. Trebucq, supra, voters may lawfully write into their ballots, cast at the general election, the name of a candidate rejected at the primary and have their ballots counted, the practical operation of the primary law in otherwise excluding from the ballot on the general election the names of candidates rejected at the primary is such as to impose serious restrictions upon the choice of candidates by the voters save by voting at the primary election. In fact, as alleged in the indictment, the practical operation of the primary in Louisiana is, and has been since the primary election was established in 1900, to secure the election of the Democratic primary nominee for the Second Congressional District of Louisiana.^[2]

Interference with the right to vote in the Congressional primary in the Second Congressional District for the choice of Democratic candidate for Congress is thus, as a matter of law and in fact, an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance, since it is at the only stage when such interference could have any practical effect on the ultimate result, the choice of the Congressman to represent the district. The primary in Louisiana is an integral part of the procedure for the popular choice of Congressman. The right of qualified voters to vote at the Congressional primary in Louisiana and to have their ballots counted is thus the right to participate in that choice.

We come then to the question whether that right is one secured by the Constitution. Section 2 of Article I commands that Congressmen shall be chosen by the people of the several states by electors, the qualifications of which it prescribes. The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is defined, and the mode of its exercise is prescribed by state action in conformity to the Constitution, is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right. Ex parte Yarbrough, 110 U.S. 651; United States v. Mosley, 238 U.S. 383. And see Hague v. C.I.O., 307 U.S. 496, 508, 513, 526, 527, 529, giving the same interpretation to the like phrase "rights" "secured by the 315*315 Constitution" appearing in § 1 of the Civil Rights Act of 1871, 17 Stat. 13. While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, see Minor v. Happersett, 21 Wall. 162, 170; United States v. Reese, 92 U.S. 214, 217-218; McPherson v. Blacker, 146 U.S. 1, 38-39; Breedlove v. Suttles,302 U.S. 277, 283, this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under § 4 and its more general power under Article I, § 8, clause 18 of the Constitution "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." See Ex parte Siebold,100 U.S. 371; Ex parte Yarbrough, supra, 663, 664; Swafford v. Templeton, 185 U.S. 487; Wiley v. Sinkler, 179 U.S. 58, 64.

Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted at Congressional elections. This Court has consistently held that this is a right secured by the Constitution. Ex parte Yarbrough, supra; Wiley v. Sinkler, supra; Swafford v. Templeton, supra; United States v. Mosley, supra; see Ex parte Siebold, supra; In re Coy, 127 U.S. 731; Logan v. United States, 144 U.S. 263. And since the constitutional command is without restriction or limitation, the right, unlike those guaranteed by the Fourteenth and Fifteenth Amendments, is secured against the action of individuals as well as of states. Ex parte Yarbrough, supra; Logan v. United States, supra.

But we are now concerned with the question whether the right to choose at a primary election, a candidate for election as representative, is embraced in the right to choose representatives secured by Article I, § 2. We may assume that the framers of the Constitution in adopting that section, did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication, which are concededly within it. But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. Cf. Davidson v. New Orleans, 96 U.S. 97; Brown v. Walker, 161 U.S. 591, 595; Robertson v. Baldwin,165 U.S. 275, 281, 282. If we remember that "it is a Constitution we are expounding," we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the constitutional purpose.

That the free choice by the people of representatives in Congress, subject only to the restrictions to be found in §§ 2 and 4 of Article I and elsewhere in the Constitution, was one of the great purposes of our constitutional scheme of government cannot be doubted. We cannot regard it as any the less the constitutional purpose, or its words as any the less guarantying the integrity of that choice, when a state, exercising its privilege in the absence of Congressional action, changes the mode of choice from a single step, a general election, to two, of which the first is the choice at a primary of those candidates from whom, as a second step, the representative in Congress is to be chosen at the election.

Nor can we say that that choice which the Constitution protects is restricted to the second step because § 4 of Article I, as a means of securing a free choice of representatives by the people, has authorized Congress to regulate the manner of elections, without making any mention of primary elections. For we think that the authority of Congress, given by § 4, includes the authority to regulate primary elections when, as in this case, they are a step in the exercise by the people of their choice of representatives in Congress. The point whether the power conferred by § 4 includes in any circumstances the power to regulate primary elections was reserved in United States v. Gradwell, supra, 487. In Newberry v. United States, supra, four Justices of this Court were of opinion that the term "elections" in § 4 of Article I did not embrace a primary election, since that procedure was unknown to the framers. A fifth Justice, who with them pronounced the judgment of the Court, was of opinion that a primary, held under a law enacted before the adoption of the Seventeenth Amendment, for the nomination of candidates for Senator, was not an election within the meaning of § 4 of Article I of the Constitution, presumably because the choice of the primary imposed no legal restrictions on the election of Senators by the state legislatures to which their election had been committed by Article I, § 3. The remaining four Justices were of the opinion that a primary election for the choice of candidates for Senator or Representative were elections subject to regulation by Congress within the meaning of § 4 of Article I. The question then has not been prejudged by any decision of this Court.

To decide it we turn to the words of the Constitution read in their historical setting as revealing the purpose of its framers, and search for admissible meanings of its words which, in the circumstances of their application, will effectuate those purposes. As we have said, a dominant purpose of § 2, so far as the selection of representatives in Congress is concerned, was to secure to the people the right to choose representatives by the designated electors, that is to say, by some form of election. Cf. the Seventeenth Amendment as to popular "election" of Senators. From time immemorial an election to public office has been in point of substance no more and no less than the expression by qualified electors of their choice of candidates.

Long before the adoption of the Constitution the form and mode of that expression had changed from time to time. There is no historical warrant for supposing that the framers were under the illusion that the method of effecting the choice of the electors would never change or that, if it did, the change was for that reason to be permitted to defeat the right of the people to choose representatives for Congress which the Constitution had guaranteed. The right to participate in the choice of representatives for Congress includes, as we have said, the right to cast a ballot and to have it counted at the general election, whether for the successful candidate or not. Where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary is likewise included in the right protected by Article I, § 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative. Here, even apart from the circumstance that the Louisiana primary is made by law an integral part of the procedure of choice, the right to choose a representative is in fact controlled by the primary because, as is alleged in the indictment, the choice of candidates at the Democratic primary determines the choice of the elected representative. Moreover, we cannot close our eyes to the fact, already mentioned, that the practical influence of the choice of candidates at the primary may be so great as to affect profoundly the choice at the general election, even though there is no effective legal prohibition upon the rejection at the election of the choice made at the primary, and may thus operate to deprive the voter of his constitutional right of choice. This was noted and extensively commented upon by the concurring Justices in Newberry v. United States, supra,263-269, 285, 287.

Unless the constitutional protection of the integrity of "elections" extends to primary elections, Congress is left powerless to effect the constitutional purpose, and the popular choice of representatives is stripped of its constitutional protection save only as Congress, by taking over the control of state elections, may exclude from them the influence of the state primaries.^[3] Such an expedient would end that state autonomy with respect to elections which the Constitution contemplated that Congress should be free to leave undisturbed, subject only to such minimum regulation as it should find necessary to insure the freedom and integrity of the choice. Words, especially those of a constitution, are not to be read with such stultifying narrowness. The words of §§ 2 and 4 of Article I, read in the sense which is plainly permissible and in the light of the constitutional purpose, require us to hold that a primary election which involves a necessary step in the choice of candidates for election as representatives in Congress, and which in the circumstances of this case controls that choice, is an election within the meaning of the constitutional provision and is subject to congressional regulation as to the manner of holding it.

Not only does § 4 of Article I authorize Congress to regulate the manner of holding elections, but by Article I, § 8, Clause 18, Congress is given authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof." This provision leaves to the Congress the choice of means by which its constitutional powers are to be carried into execution. "Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." McCulloch v. Maryland, 4 Wheat. 316, 421. That principle has been consistently adhered to and liberally applied. and extends to the congressional power by appropriate legislation to safeguard the right of choice by the people of representatives in Congress, secured by § 2 of Article I. Ex parte Yarbrough, supra, 657, 658; cf. Second Employers Liability Cases, 223 U.S. 1, 49; Houston & Texas Ry. Co. v. United States, 234 U.S. 342, 350, 355; Wilson v. New,243 U.S. 332, 346, 347; First National Bank v. Union Trust Co., 244 U.S. 416, 419; Selective Draft Law Cases, 245 U.S. 366, 381; United States v. Ferger, 250 U.S. 199, 205; Hamilton v. 321*321 Kentucky Distilleries Co., 251 U.S. 146, 155, 163; Jacob Ruppert v. Caffey, 251 U.S. 264; Smith v. Kansas City Title & Trust Co., 255 U.S. 180; United States v. Darby, 312 U.S. 100, and cases cited.

There remains the question whether §§ 19 and 20 are an exercise of the congressional authority applicable to the acts with which appellees are charged in the indictment. Section 19 makes it a crime to conspire to "injure" or "oppress" any citizen "in the free exercise or enjoyment of any right or privilege secured to him by the Constitution."^[4] In Ex parte Yarbrough, supra, and in United States v. Mosley, supra, as we have seen, it was held that the right to vote in a congressional election is a right secured by the Constitution, and that a conspiracy to prevent the citizen from voting, or to prevent the official count of his ballot when cast, is a conspiracy to injure and oppress the citizen in the free exercise of a right secured by the Constitution within the meaning of § 19. In reaching this conclusion the Court found no uncertainty or ambiguity in the statutory language, obviously devised to protect the citizen "in the free exercise or enjoyment of any right or privilege secured to him by the Constitution," and concerned itself with the question whether the right to participate in choosing a representative is so secured.^[5] Such is our function here. Conspiracy to prevent the official count of a citizen's ballot, held in United States v. Mosley, supra, to be a violation of § 19 in the case of a congressional election, is equally a conspiracy to injure and oppress the citizen when the ballots are cast in a primary election prerequisite to the choice of party candidates for a congressional election. In both cases the right infringed is one secured by the Constitution. The injury suffered by the citizen in the exercise of the right is an injury which the statute describes and to which it applies in the one case as in the other.

The suggestion that § 19, concededly applicable to conspiracies to deprive electors of their votes at congressional elections, is not sufficiently specific to be deemed applicable to primary elections, will hardly bear examination. Section 19 speaks neither of elections nor of primaries. In unambiguous language it protects "any right or privilege secured by the Constitution," a phrase which, as we have seen, extends to the right of the voter to have his vote counted in both the general election and in the primary election, where the latter is a part of the election machinery, as well as to numerous other constitutional rights which are wholly unrelated to the choice of a representative in Congress. United States v. Waddell,112 U.S. 76; Logan v. United States, 144 U.S. 263; In re Quarles, 158 U.S. 532; Motes v. United States, 178 U.S. 458; Guinn v. United States, 238 U.S. 347.

In the face of the broad language of the statute, we are pointed to no principle of statutory constructionand to no significant legislative history which could be thought to sanction our saying that the statute applies any the less to primaries than to elections, where in one as in the other it is the same constitutional right which is infringed. It does not avail to attempt to distinguish the protection afforded by § 1 of the Civil Rights Act of 1871,^[6] to the right to participate in primary as well as general elections secured to all citizens by the Constitution, see Guinn v. United States, 238 U.S. 347; Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; Lane v. Wilson, 307 U.S. 268, on the ground that in those cases the injured citizens were Negroes whose rights were clearly protected by the Fourteenth Amendment. At least since Ex parte Yarbrough, supra, and no member of the Court seems ever to have questioned it, the right to participate in the choice of representatives in Congress has been recognized as a right protected by Art. I, §§ 2 and 4 of the Constitution.^[7] Differences of opinion have arisen as to the effect of the primary in particular cases on the choice of representatives. But we are troubled by no such doubt here. Hence, the right to participate through the primary in the choice of representatives in Congress — a right clearly secured by the Constitution — is within the words and purpose of § 19 in the same manner and to the same extent as the right to vote at the general election. United States v. Mosley, supra. It is no extension of the criminal statute, as it was not of the civil statute in Nixon v. Herndon, supra, to find a violation of it in a new method of interference with the right which its words protect. For it is the constitutional right, regardless of the method of interference, which is the subject of the statute and which in precise terms it protects from injury and oppression.

It is hardly the performance of the judicial function to construe a statute, which in terms protects a right secured by the Constitution, here the right to choose a representative in Congress, as applying to an election whose only function is to ratify a choice already made at the primary, but as having no application to the primary which is the only effective means of choice. To withdraw from the scope of the statute an effective interference with the constitutional right of choice, because other wholly different situations not now before us may not be found to involve such an interference, cf. United States v. Bathgate, 246 U.S. 220; United States v. Gradwell, 243 U.S. 476, is to say that acts plainly within the statute should be deemed to be without it because other hypothetical cases may later be found not to infringe the constitutional right with which alone the statute is concerned.

If a right secured by the Constitution may be infringed by the corrupt failure to include the vote at a primary in the official count, it is not significant that the primary, like the voting machine, was unknown when § 19 was adopted.^[8] Abuse of either may infringe the right and therefore violate § 19. See United States v. Pleva, 66 F.2d 529, 530; cf. Browder v. United States, 312 U.S. 335. Nor does the fact that in circumstances not here present there may be difficulty in determining whether the primary so affects the right of the choice as to bring it within the constitutional protection, afford any ground for doubting the construction and application of the statute once the constitutional question is resolved. That difficulty is inherent in the judicial administration of every federal criminal statute, for none, whatever its terms, can be applied beyond the reach of the congressional power which the Constitution confers. Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20; Hoke v. United States, 227 U.S. 308; Nash v. United States, 229 U.S. 373; United States v. Freeman, 239 U.S. 117; United States v. Darby, 312 U.S. 100.

The right of the voters at the primary to have their votes counted is, as we have stated, a right or privilege secured by the Constitution, and to this § 20 also gives protection.^[9] The alleged acts of appellees were committed in the course of their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election. Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law. Ex parte Virginia, 100 U.S. 339, 346; Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 287, et seq.; Hague v. C.I.O., 307 U.S. 496, 507, 519; cf. 101 F.2d 774, 790. Here the acts of appellees infringed the constitutional right and deprived the voters of the benefit of it within the meaning of § 20, unless by its terms its application is restricted to deprivations "on account of such inhabitant being an alien or by reason of his color, or race."

The last clause of § 20 protects inhabitants of a state from being subjected to different punishments, pains or penalties, by reason of alienage, color or race, than are prescribed for the punishment of citizens. That the qualification with respect to alienage, color and race, refers only to differences in punishment and not to deprivations of any rights or privileges secured by the Constitution, is evidenced by the structure of the section and the necessities of the practical application of its provisions. The qualification as to alienage, color and race, is a parenthetical phrase in the clause penalizing different punishments "than are prescribed for citizens," and in the common use of language could refer only to the subject-matter of the clause and not to that of the earlier one relating to the deprivation of rights to which it makes no reference in terms.

Moreover, the prohibited differences of punishment on account of alienage, color or race, are those referable to prescribed punishments which are to be compared with those prescribed for citizens. A standard is thus set up applicable to differences in prescribed punishments on account of alienage, color or race, which it would be difficult, if not impossible, to apply to the willful deprivations of constitutional rights or privileges, in order to determine whether they are on account of alienage, color or race. We think that § 20 authorizes the punishment of two different offenses. The one is willfully subjecting any inhabitant to the deprivation of rights secured by the Constitution; the other is willfully subjecting any inhabitant to different punishments on account of his alienage, color or race, than are prescribed for the punishment of citizens. The meager legislative history of the section supports this conclusion.^[10]

So interpreted, § 20 applies to deprivation of the constitutional rights of qualified voters to choose representatives in Congress. The generality of the section, made applicable as it is to deprivations of any constitutional right, does not obscure its meaning or impair its force within the scope of its application, which is restricted by its terms to deprivations which are willfully inflicted by those acting under color of any law, statute and the like.

We do not discuss the application of § 20 to deprivations of the right to equal protection of the laws guaranteed by the Fourteenth Amendment, a point apparently raised and discussed for the first time in the Government's brief in this Court. The point was not specially considered or decided by the court below, and has not been assigned as error by the Government. Since the indictment on its face does not purport to charge a deprivation of equal protection to voters or candidates, we are not called upon to construe the indictment in order to raise a question of statutory validity or construction which we are alone authorized to review upon this appeal.

Reversed.

The CHIEF JUSTICE took no part in the consideration or decision of this case.

MR. JUSTICE DOUGLAS, dissenting.

Free and honest elections are the very foundation of our republican form of government. Hence any attempt to defile the sanctity of the ballot cannot be viewed with equanimity. As stated by Mr. Justice Miller in Ex parte Yarbrough, 110 U.S. 651, 666, "the temptations to control these elections by violence and corruption" have been a constant source of danger in the history of all republics. The acts here charged, if proven, are of a kind which carries that threat and are highly offensive. Since they corrupt the process of Congressional elections, they transcend mere local concern and extend a contaminating influence into the national domain.

I think Congress has ample power to deal with them. That is to say, I disagree with Newberry v. United States, 256 U.S. 232, to the extent that it holds that Congress has no power to control primary elections. Art. I, § 2 of the Constitution provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." Art. I, § 4 provides that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." And Art. I, § 8, clause 18 gives Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Those sections are an arsenal of power ample to protect Congressional elections from any and all forms of pollution. The fact that a particular form of pollution has only an indirect effect on the final election is immaterial. The fact that it occurs in a primary election or nominating convention is likewise irrelevant. The important consideration is that the Constitution should be interpreted broadly so as to give to the representatives of a free people abundant power to deal with all the exigencies of the electoral process. It means that the Constitution should be read so as to give Congress an expansive implied power to place beyond the pale acts which, in their direct or indirect effect, impair the integrity of Congressional elections. For when corruption enters, the election is no longer free, the choice of the people is affected. To hold that Congress is powerless to control these primaries would indeed be a narrow construction of the Constitution, inconsistent with the view that that instrument of government was designed not only for contemporary needs but for the vicissitudes of time.

So I agree with most of the views expressed in the opinion of the Court. And it is with diffidence that I dissent from the result there reached.

The disagreement centers on the meaning of § 19 of the Criminal Code, which protects every right secured by the Constitution. The right to vote at a final Congressional election and the right to have one's vote counted in such an election have been held to be protected by § 19. Ex parte Yarbrough, supra; United States v. Mosley, 238 U.S. 383. Yet I do not think that the principles of those cases should be, or properly can be, extended to primary elections. To sustain this indictment we must so extend them. But when we do, we enter perilous territory.

We enter perilous territory because, as stated in United States v. Gradwell, 243 U.S. 476, 485, there is no common law offense against the United States; "the legislative authority of the Union must make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence." United States v.Hudson, 7 Cranch 32, 34. If a person is to be convicted of a crime, the offense must be clearly and plainly embraced within the statute. As stated by Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 105, "probability is not a guide which a court, in construing a penal statute, can safely take." It is one thing to allow wide and generous scope to the express and implied powers of Congress; it is distinctly another to read into the vague and general language of an act of Congress specifications of crimes. We should ever be mindful that "before a man can be punished, his case must be plainly and unmistakably within the statute." United States v. Lacher, 134 U.S. 624, 628. That admonition is reemphasized here by the fact that § 19 imposes not only a fine of $5,000 and ten years in prison, but also makes him who is convicted "ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." It is not enough for us to find in the vague penumbra of a statute some offense about which Congress could have legislated, and then to particularize it as a crime because it is highly offensive. Cf. James v. Bowman, 190 U.S. 127. Civil liberties are too dear to permit conviction for crimes which are only implied and which can be spelled out only by adding inference to inference.

Sec. 19 does not purport to be an exercise by Congress of its power to regulate primaries. It merely penalizes conspiracies "to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." Thus, it does no more than refer us to the Constitution^[1] for the purpose of determining whether or not the right to vote in a primary is there secured. Hence we must do more than find in the Constitution the power of Congress to afford that protection. We must find that protection on the face of the Constitution itself. That is to say, we must in view of the wording of § 19 read the relevant provisions of the Constitution for the purposes of this case through the window of a criminal statute.

There can be put to one side cases where state election officials deprive negro citizens of their right to vote at a general election (Guinn v. United States, 238 U.S. 347), or at a primary. Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73. Discrimination on the basis of race or color is plainly outlawed by the Fourteenth Amendment. Since the constitutional mandate is plain, there is no reason why § 19 or § 20 should not be applicable. But the situation here is quite different. When we turn to the constitutional provisions relevant to this case we find no such unambiguous mandate.

Art. I, § 4 specifies the machinery whereby the times, places and manner of holding elections shall be established and controlled. Art. I, § 2 provides that representatives shall be "chosen" by the people. But for purposes of the criminal law as contrasted to the interpretation of the Constitution as the source of the implied power of Congress, I do not think that those provisions in absence of specific legislation by Congress protect the primary election or the nominating convention. While they protect the right to vote, and the right to have one's vote counted, at the final election, as held in the Yarbrough and Mosley cases, they certainly do not per se extend to all acts which in their indirect or incidental effect restrain, restrict, or interfere with that choice. Bribery of voters at a general election certainly is an interference with that freedom of choice. It is a corruptive influence which for its impact on the election process is as intimate and direct as the acts charged in this indictment. And Congress has ample power to deal with it. But this Court in United States v. Bathgate, 246 U.S. 220, by a unanimous vote, held that conspiracies to bribe voters at a general election were not covered by § 19. While the conclusion in that case may be reconciled with the results in the Yarbroughand Mosley cases on the ground that the right to vote at a general election is personal while the bribery of voters only indirectly affects that personal right, that distinction is not of aid here. For the failure to count votes cast at a primary has by the same token only an indirect effect on the voting at the general election. In terms of causal effect, tampering with the primary vote may be as important on the outcome of the general election as bribery of voters at the general election itself. Certainly from the viewpoint of the individual voter there is as much a dilution of his vote in the one case as in the other. So, in light of the Mosley and Bathgate cases, the test under § 19 is not whether the acts in question constitute an interference with the effective choice of the voters. It is whether the voters are deprived of their votes in the general election. Such a test comports with the standards for construction of a criminal law, since it restricts § 19 to protection of the rights plainly and directly guaranteed by the Constitution. Any other test entails an inquiry into the indirect or incidental effect on the general election of the acts done. But in view of the generality of the words employed, such a test would be incompatible with the criteria appropriate for a criminal case.

The Mosley case, in my view, went to the verge when it held that § 19 and the relevant constitutional provisions made it a crime to fail to count votes cast at a general election. That Congress intended § 19 to have that effect was none too clear. The dissenting opinion of Mr. Justice Lamar in that case points out that § 19 was originally part of the Enforcement Act of May 31, 1870, c. 114, § 6, 16 Stat. 140. Under another section of that act (§ 4), which was repealed by the Act of February 8, 1894 (28 Stat. 36), the crime charged in the Mosley case would have been punishable by a fine of not less than $500 and imprisonment for 12 months.^[2] Under § 19 it carried, as it still does, a penalty of $5000 and ten years in prison. The Committee Report (H. Rep. No. 18, 53d Cong., 1st Sess.), which recommended the repeal of other sections, clearly indicated an intent to remove the hand of the Federal Government from such elections and to restore their conduct and policing to the states. As the Report stated (p. 7): "Let every trace of the reconstruction measures be wiped from the statute books; let the States of this great Union understand that the elections are in their own hands, and if there be fraud, coercion, or force used they will be the first to feel it. Responding to a universal sentiment throughout the country for greater purity in elections many of our States have enacted laws to protect the voter and to purify the ballot. These, under the guidance of State officers, have worked efficiently, satisfactorily, and beneficently; and if these Federal statutes are repealed that sentiment will receive an impetus which, if the cause still exists, will carry such enactments in every State in the Union." In view of this broad, comprehensive program of repeal, it is not easy to conclude that the general language of § 19, which was not repealed, not only continued in effect much which had been repealed but also upped the penalties for certain offenses which had been explicitly covered by one of the repealed sections. Mr. Justice Holmes, writing for the majority in the Mosley case, found in the legislative and historical setting of § 19 and in its revised form a Congressional interpretation which, if § 19 were taken at its face value, was thought to afford voters in final Congressional elections general protection. And that view is a tenable one, since § 19 originally was part of an Act regulating general elections, and since the acts charged had a direct rather than an indirect effect on the right to vote at a general election.

But as stated by a unanimous court in United States v. Gradwell, supra, p. 486, the Mosley case "falls far short" of making § 19 "applicable to the conduct of a state nominating primary." Indeed, Mr. Justice Holmes, the author of the Mosley opinion, joined with Mr. Justice McReynolds in the Newberry case in his view that Congress had no authority under Art. I, § 4 of the Constitution to legislate on primaries. When § 19 was part of the Act of May 31, 1870, it certainly would never have been contended that it embraced primaries, for they were hardly known at that time.^[3] It is true that "even a criminal statute embraces everything which subsequently falls within its scope." Browder v. United States, 312 U.S. 335, 340. Yet the attempt to bring under § 19 offenses "committed in the conduct of primary elections or nominating caucuses or conventions" was rejected in the Gradwellcase, where this Court said that in absence of legislation by Congress on the subject of primaries it is not for the courts "to attempt to supply it by stretching old statutes to new uses, to which they are not adapted and for which they were not intended. . . . the section of the Criminal Code relied upon, originally enacted for the protection of the civil rights of the then lately enfranchised negro, cannot be extended so as to make it an agency for enforcing a state primary law." 243 U.S. pp. . The fact that primaries were hardly known when § 19 was enacted, the fact that it was part of a legislative program governing general elections, not primary elections, the fact that it has been in nowise implemented by legislation directed at primaries, give credence to the unanimous view in the Gradwell case that § 19 has not by the mere passage of time taken on a new and broadened meaning. At least it seems plain that the difficulties of applying the historical reason adduced by Mr. Justice Holmes in the Mosley case to bring general elections within § 19 are so great in case of primaries that we have left the safety zone of interpretation of criminal statutes when we sustain this indictment. It is one thing to say, as in the Mosley case, that Congress was legislating as respects general elections when it passed § 19. That was the fact. It is quite another thing to say that Congress by leaving § 19 unmolested for some seventy years has legislated unwittingly on primaries. Sec. 19 was never part of an act of Congress directed towards primaries. That was not its original frame of reference. Therefore, unlike the Mosley case, it cannot be said here that § 19 still covers primaries because it was once an integral part of primary legislation.

Furthermore, the fact that Congress has legislated only sparingly and at infrequent intervals even on the subject of general elections (United States v. Gradwell, supra) should make us hesitate to conclude that by mere inaction Congress has taken the greater step, entered the field of primaries, and gone further than any announced legislative program has indicated. The acts here charged constitute crimes under the Louisiana statute. La. Act No. 46, Reg. Sess. 1940, § 89. In absence of specific Congressional action we should assume that Congress has left the control of primaries and nominating conventions to the states — an assumption plainly in line with the Committee Report, quoted above, recommending the repeal of portions of the Enforcement Act of May 31, 1870 so as to place the details of elections in state hands. There is no ground for inference in subsequent legislative history that Congress has departed from that policy by superimposing its own primary penal law on the primary penal laws of the states. Rather, Congress has been fairly consistent in recognizing state autonomy in the field of elections. To be sure, it has occasionally legislated on primaries.^[4] But even when dealing specifically with the nominating process, it has never made acts of the kind here in question a crime. In this connection it should be noted that the bill which became the Hatch Act (53 Stat. 1147; 18 U.S.C. § 61) contained a section which made it unlawful "for any person to intimidate, threaten, or coerce, or to attempt to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the nomination of any party as its candidate" for various federal offices, including representatives, "at any primary or nominating convention held solely or in part" for that purpose. This was stricken in the Senate. 84 Cong. Rec., pt. 4, 76th Cong., 1st Sess., p. 4191. That section would have extended the same protection to the primary and nominating convention as § 1 of the Hatch Act^[5] extends to the general election. The Senate, however, refused to do so. Yet this Court now holds that § 19 has protected the primary vote all along and that it covers conspiracies to do the precise thing on which Congress refused to legislate in 1939. The hesitation on the part of Congress through the years to enter the primary field, its refusal to do so^[6] in 1939, and the restricted scope of such primary laws as it has passed should be ample evidence that this Court is legislating when it takes the initiative in extending § 19 to primaries.

We should adhere to the strict construction given to § 19 by a unanimous court in United States v. Bathgate, 246 U.S. 220, 226, where it was said: "Section 19, Criminal Code, of course, now has the same meaning as when first enacted . . . and considering the policy of Congress not to interfere with elections within a State except by clear and specific provisions, together with the rule respecting construction of criminal statutes, we cannot think it was intended to apply to conspiracies to bribe voters." That leads to the conclusion that § 19 and the relevant constitutional provisions should be read so as to exclude all acts which do not have the direct effect of depriving voters of their right to vote at general elections. That view has received tacit recognition by Congress. For the history of legislation governing Federal elections shows that the occasional Acts of Congress^[7] on the subject have been primarily directed towards supplying detailed regulations designed to protect the individual's constitutional right to vote against pollution and corruption. Those laws, the latest of which is § 1 of the Hatch Act, are ample recognition by Congress itself that specific legislation is necessary in order to protect the electoral process against the wide variety of acts which in their indirect or incidental effect interfere with the voter's freedom of choice and corrupt the electoral process. They are evidence that detailed regulations are essential in order to reach acts which do not directly interfere with the voting privilege. They are inconsistent with the notions in the opinion of the Court that the Constitution, unaided by definite supplementary legislation, protects the methods by which party candidates are nominated.

That § 19 lacks the requisite specificity necessary for inclusion of acts which interfere with the nomination of party candidates is reemphasized by the test here employed. The opinion of the Court stresses, as does the indictment, that the winner of the Democratic primary in Louisiana invariably carries the general election. It is also emphasized that a candidate defeated in the Louisiana primaries cannot be a candidate at the general election. Hence, it is argued that interference with the right to vote in such a primary is "as a matter of law and in fact an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance," and that the "primary in Louisiana is an integral part of the procedure for the popular choice" of representatives. By that means, the Gradwell case is apparently distinguished. But I do not think it is a valid distinction for the purposes of this case.

One of the indictments in the Gradwell case charged that the defendants conspired to procure one thousand unqualified persons to vote in a West Virginia primary for the nomination of a United States Senator. This Court, by a unanimous vote, affirmed the judgment which sustained a demurrer to that indictment. The Court specifically reserved the question as to whether a "primary should be treated as an election within the meaning of the Constitution." But it went on to say that, even assuming it were, certain "strikingly unusual features" of the particular primary precluded such a holding in that case. It noted that candidates of certain parties were excluded from the primary, and that even candidates who were defeated at the primary could on certain conditions be nominated for the general election. It therefore concluded that whatever power Congress might have to control such primaries, it had not done so by § 19.

If the Gradwell case is to survive, as I think it should, we have therefore this rather curious situation. Primaries in states where the winner invariably carries the general election are protected by § 19 and the Constitution, even though such primaries are not by law an integral part of the election process. Primaries in states where the successful candidate never wins, seldom wins, or may not win in the general election are not so protected, unless perchance state law makes such primaries an integral part of the election process. Congress, having a broad control over primaries, might conceivably draw such distinctions in a penal code. But for us to draw them under § 19 is quite another matter. For we must go outside the statute, examine local law and local customs, and then, on the basis of the legal or practical importance of a particular primary, interpret the vague language of § 19 in the light of the significance of the acts done. The result is to make refined and nice distinctions which Congress certainly has not made, to create unevenness in the application of § 19 among the various states, and to make the existence of a crime depend, not on the plain meaning of words employed interpreted in light of the legislative history of the statute, but on the result of research into local law or local practices. Unless Congress has explicitly made a crime dependent on such facts, we should not undertake to do so. Such procedure does not comport with the strict standards essential for the interpretation of a criminal law. The necessity of resorting to such a circuitous route is sufficient evidence to me that we are performing a legislative function in finding here a definition of a crime which will sustain this indictment. A crime, no matter how offensive, should not be spelled out from such vague inferences.

MR. JUSTICE BLACK and MR. JUSTICE MURPHY join in this dissent.

[1] The ballots are printed at public expense, § 35 of Act No. 46, Regular Session, 1940, are furnished by the Secretary of State, § 36 in a form prescribed by statute, § 37. Close supervision of the delivery of the ballots to the election commissioners is prescribed, §§ 43-46. The polling places are required to be equipped to secure secrecy, §§ 48-50; §§ 54-57. The selection of election commissioners is prescribed, § 61 and their duties detailed. The commissioners must swear to conduct the election impartially, § 64 and are subject to punishment for deliberately falsifying the returns or destroying the lists and ballots, §§ 98, 99. They must identify by certificate the ballot boxes used, § 67, keep a triplicate list of voters, § 68, publicly canvass the return, § 74 and certify the same to the Secretary of State, § 75.

[2] For a discussion of the practical effect of the primary in controlling or restricting election of candidates at general elections, see, Hasbrouck, Party Government in the House of Representatives (1927) 172, 176, 177; Merriam and Overacker, Primary Elections (1928) 267-269; Stoney, Suffrage in the South; 29 Survey Graphic, 163, 164.

[3] Congress has recognized the effect of primaries on the free exercise of the right to choose the representatives, for it has inquired into frauds at primaries as well as at the general elections in judging the "Elections Returns and Qualifications of its Own Members," Art. I, § 5. See Grace v. Whaley, H. Rept. No. 158, 63d Cong., 2d Sess.; Peddy v. Mayfield, S. Rept. No. 973, 68th Cong., 2d Sess.; Wilson v. Vare, S. Rept. No. 1858, 70th Cong., 2d Sess., S. Rept. No. 47, 71st Cong., 2d Sess., and S. Res. 111, 71st Cong., 2d Sess.

See also Investigation of Campaign Expenditures in the 1940 Campaign, S. Rept. No. 47, 77th Cong., 1st Sess., p. 48 et seq.

[4] Section 19 of the Criminal Code (U.S.C., Title 18, § 51):

"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States." (R.S. § 5508; Mar. 4, 1909, c. 321, § 19, 35 Stat. 1092.)

[5] In United States v. Mosley, 238 U.S. 383, 386, the Court thought that "Manifestly the words are broad enough to cover the case," it canvassed at length the objections that § 19 was never intended to apply to crimes against the franchise, and the other contention, which it also rejected, that § 19 had been repealed or so restricted as not to apply to offenses of that class. It is unnecessary to repeat that discussion here.

[6] Section 1 now reads, 8 U.S.C. § 43: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

[7] See e.g. Guinn v. United States, 238 U.S. 347; United States v. O'Toole, 236 F. 993, aff'd United States v. Gradwell, 243 U.S. 476; Aczel v. United States, 232 F. 652; Felix v. United States, 186 F. 685; Karem v. United States, 121 F. 250; Walker v. United States, 93 F.2d 383; Luteran v. United States, 93 F.2d 395.

[8] No conclusion is to be drawn from the failure of the Hatch Act, 53 Stat. 1147, 18 U.S.C. § 61, to enlarge § 19 by provisions specifically applicable to primaries. Its failure to deal with the subject seems to be attributable to constitutional doubts, stimulated by Newberry v. United States, 256 U.S. 232, which are here resolved. See 84 Cong. Rec., 76th Cong., 1st Sess., p. 4191; cf. Investigation of Campaign Expenditures in the 1940 Campaign, S. Rept. No. 47, 77th Cong., 1st Sess., p. 48.

[9] Section 20 of the Criminal Code (U.S.C., Title 18 § 52):

"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both." (R.S. § 5510; Mar. 4, 1909, c. 321, § 20, 35 Stat. 1092.)

[10] The precursor of § 20 was § 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, which reads:

"That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction shall be punished by fine. . . ."

This section, so far as now material, was in substance the same as § 20 except that the qualifying reference to differences in punishment made no mention of alienage, the reference being to "different punishment . . . on account of such person having at any time been held in a condition of slavery or involuntary servitude."

Senator Trumbull, the putative author of S. 61, 39th Cong., 1st Sess., the Civil Rights Bill of 1866, and Chairman of the Senate Judiciary Committee which reported the bill, in explaining it stated that the bill was "to protect all persons in the United States in their civil rights, and furnish the means of their vindication. . . ." Cong. Globe, 39th Cong., 1st Sess., p. 211. He also declared, "The bill applies to white men as well as black men." Cong. Globe, 39th Cong., 1st Sess., p. 599. Opponents of the bill agreed with this construction of the first clause of the section, declaring that it referred to the deprivation of constitutional rights of all inhabitants of the states of every race and color. Pp. 598, 601.

On February 24, 1870, Senator Stewart of Nevada, introduced S. 365, 41st Cong., 2d Sess., § 2 of which read:

"That any person who, under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor. . . ."

In explaining the bill he declared, Cong. Globe, 41st Cong., 2d Sess., p. 1536, that the purpose of the bill was to extend its benefits to aliens, saying, "It extends the operation of the Civil Rights Bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States." The Committee reported out a substitute bill to H.R. 1293, to which S. 365 was added as an amendment. As so amended the bill when adopted became the present § 20 of the Criminal Code which read exactly as did § 2 of the Civil Rights Act, except that the word "aliens" was added and the word "citizens" was substituted for the phrase "white persons."

While the legislative history indicates that the immediate occasion for the adoption of § 20, like the Fourteenth Amendment itself, was the more adequate protection of the colored race and their civil rights, it shows that neither was restricted to the purpose and that the first clause of § 20 was intended to protect the constitutional rights of all inhabitants of the states. H.R. 1293, 41st Cong., 2d Sess., which was later amended in the Senate to include § 2 of S. 365 as § 17 of the bill as it passed, now § 20 of the Criminal Code, was originally entitled "A bill to enforce the right of citizens of the United States to vote in the several States of this Union, who have hitherto been denied that right on account of race, color, or previous condition of servitude." When the bill came to the Senate its title was amended and adopted to read, "A bill to enforce the right of citizens of the United States to vote in the several States of this Union and for other purposes."

[1] While § 19 also refers to "laws of the United States," § 19 and § 20 are the only statutes directly in point.

[2] Sec. 5506, Rev. Stat.: "Every person who, by any unlawful means, hinders, delays, prevents, or obstructs, or combines and confederates with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote, or from voting at any election . . . shall be fined not less than five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both such fine and imprisonment." Sec. 5511 provided: "If, at any election for Representative or Delegate in Congress, any person . . . knowingly receives the vote of any person not entitled to vote, or refuses to receive the vote of any person entitled to vote . .. he shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three years, or by both. . ."

[3] Merriam & Overacker, Primary Elections (1928) chs. I-III, V; Sait, American Parties & Elections (1927) ch. X; Brooks, Political Parties & Electoral Problems (1933) ch. X.

[4] Act of June 25, 1910, c. 392, 36 Stat. 822, as amended by the Act of August 19, 1911, c. 33, 37 Stat. 25; Act of October 16, 1918, c. 187, 40 Stat. 1013.

[5] "That it shall be unlawful for any person to intimidate, threaten, or coerce, or to attempt to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, or Member of the House of Representatives at any election held solely or in part for the purpose of selecting a President, a Vice President, a Presidential elector, or any Member of the Senate or any Member of the House of Representatives, Delegates or Commissioners from the Territories and insular possessions."

[6] Sec. 2 of the Hatch Act, however, does make unlawful certain acts of administrative employees even in connection with the nominations for certain federal offices. And see 54 Stat. 767, No. 753, ch. 640, 76th Cong., 3d Sess. As to the power of Congress ever employees or officers of the government, see United States v. Wurzbach, 280 U.S. 396.

[7] See for example, Act of May 31, 1870, 16 Stat. 140; Act of July 14, 1870, 16 Stat. 254, 255-256; Act of Feb. 28, 1871, 16 Stat. 433; Act of June 25, 1910, 36 Stat. 822; Act of August 19, 1911, 37 Stat. 25; Act of August 23, 1912, 37 Stat. 360; Act of October 16, 1918, 40 Stat. 1013; Federal Corrupt Practices Act, 1925, 43 Stat. 1070; Hatch Act, August 2, 1939, 53 Stat. 1147.

McCutcheon, Nesbett & Rader, Buell Nesbett, Anchorage, Alaska, Gerald J. McMahon, Harold Harper, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

Davis, Renfrew & Hughes, Anchorage, Alaska, for appellee.

Before POPE, LEMMON and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Arthur W. Stephenson, plaintiff-appellee, is the discharged general manager of Alaska Airlines, Inc., a company organized under the laws of the Territory of [296] Alaska. The company was defendant in the trial court and is appellant herein. The case falls entirely on the territorial side of the district court in Alaska, i.e., no federal questions are presented and we take it that diversity of citizenship did not exist.^[1]

Stephenson seems to have had through the years a varied career in the airlines. One day he is a pilot. The next day he is an executive. In September, 1950, he was a pilot regularly employed by Western Airlines. At Western he had certain rights to continued employment. But he could take a leave of absence therefrom for a period of not to exceed six months without prejudice to his rights of continued employment with Western.

Alaska Airlines, Inc., herein called Alaska, Inc., in 1950 was a small airline operating in the Territory of Alaska. It was living from day to day in the hope of obtaining a certificate to operate from the states, probably from Seattle, Washington, to Alaska. When that day should come, it was to be a big airline.

The financial headquarters of the company, at least, was in the City of New York. There R. W. Marshall, chairman of the board, had his office.

Stephenson went to New York on September 15, 1950, at the request of an aviation consultant company to be interviewed by Marshall. Then and there Stephenson was employed as general manager. He took leave of absence from Western and rather promptly commenced his duties. He eventually in mid-winter moved his family to Anchorage, Alaska, from Redondo Beach, California. In the winter of 1950-1951, with Stephenson's six months' leave with Western about to expire, he was in and out of New York pressing for a written contract of definite duration and of substantial length. He had one drawn up and conferred not only with Marshall but with the company's lawyer. He could not get it signed. The company wasn't signing any contracts, we take it, until it found out whether it was to have its certificate. Later on we shall advert to some of the discussions.

The certificate apparently was granted in May, 1951. It seems strange that with the granting of the certificate there followed no negotiations or steps to put the agreement in writing, if Alaska, Inc., had agreed to do so. But we do get the impression that by this time Stephenson had lost favor with the company. It appears that he was relieved of his duties about September 1, 1951, and was continued on the payroll until October 15, 1951.

Then Stephenson filed suit against Alaska, Inc., setting up two causes of action. The first claim is for salary beyond the time he was carried on the payroll. The second is for moneys he claimed due on his expense account and for salary admittedly due except for an offset claimed by Alaska, Inc. The evidence is in sharp conflict. If the jury had accepted Alaska, Inc.'s, testimony, it would have found Stephenson owed it money. On the claim for salary, it seems to us that Alaska, Inc., on the evidence, would have to concede that Stephenson sustained his burden of proof for $11,050 in unpaid salary awarded him by the jury. Of course, it does not concede the point.

But what of the statute of frauds and a contract clearly not to be performed fully within one year? Alaska, Inc., relied on the statute of frauds.^[2] We have [297] a contract made in New York to be performed entirely or almost entirely in Alaska. Does New York law apply, or does the law of the Territory of Alaska apply. And what of promissory estoppel.^[3]

At the outset, one well may wonder if the courts from the beginning had vigorously enforced the statute of frauds from its first adoption in England, wouldn't we have less injustice? If people were brought up in the tradition that certain contracts inescapably had to be in writing, wouldn't those affected thereby get their contracts into writing and, on the whole, wouldn't the public be better off?

But we have to take the law as we find it. For generations, in hard cases, the courts have been making exceptions to "do justice," granting relief here, calling a halt there. The result is that one with difficulty can predict the result in a given state and the situation becomes more confounded when the query arises as to whose (what state's) law we should apply.

Stephenson's version of his employment may be summed up as follows:

1. When he was hired by Marshall the agreement was that he would go to work at $1,300 a month and that they would get together in six weeks to three months and work out a long-range agreement; that he was to have a raise when the certificate of convenience and necessity was granted for Alaska, Inc., to fly to and from the states.

2. Negotiations were had for the "contract" about January 6, 1951, in New York, with Marshall. At that time about all that was agreed definitely was that Stephenson should take his family with him to the Territory of Alaska. This he did. Then, about March 15, 1951, Stephenson, his leave with Western about to expire, was in New York at the company office, pressing Marshall for the contract. He made clear to Marshall that because of this contingency the employment had to be made definite and formalized. (The testimony wobbles, but the jury could have found that on March 16 or 17 Marshall orally hired Stephenson for a period of two years at a salary of $1,300 per month, with the further understanding that on the granting of the certificate Stephenson was to have an increase in salary and a written contract.) Thereupon, Stephenson let his right to return to Western expire.

New York many times has let down the bar on the statute of frauds. The members of this court have examined dozens of New York cases and have come to the conclusion that the New York state courts would probably deny Stephenson recovery here if the action were brought there. But of this we are not positive. See Roberts v. Fulmer, 301 N.Y. 277, 93 N.E.2d 846; Weiss v. Weiss, Sup., 49 N.Y.S.2d 128; In re Melia's Estate, Sur., 98 N.Y.S.2d 941; Porter v. Commissioner, 2 Cir., 60 F.2d 673; McLachlin v. Village of Whitehall, 114 App.Div. 315, 99 N.Y.S. 721; Kahn v. Cecelia Co., D.C., 40 F.Supp. 878.

But should we use New York law on this case in the Alaska forum? The latest authority of the highest New York court, Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E.2d 424, where a contract without the statute of frauds in Florida was sued upon in New York, as we read it, says, inter alia, that New York's law is primarily procedural and [298] perhaps substantive, too. Also, it seems to rely on the center of gravity of the contract, i.e., the contract though made in Florida concerned mainly New York business. If historically New York had declared clearly its statute of frauds one of substance only, going to the essential validity of the contract, comity would dictate that we follow it. Whether the Irving case is to be construed as a holding that the statute is procedural or as a holding that the center of gravity rule must be applied, we think it demonstrates that the New York courts would hold that the Alaska statute is the one to be applied in this case. We so hold.

Turning to the Alaska statute, what is it? Where did it come from? What history does it have behind it?

It would appear that it went to Alaska from Oregon. Oregon may have taken it from Iowa or New York. We find nothing in the decisions made by the Alaska courts (or by this court) or in Oregon prior to Alaska's adoption of the statute that will help us.

Section 90 of the Restatement of the Law of Contracts provides as follows:

"Promise reasonably inducing definite and substantial action.

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

The foregoing section, not mentioning promissory estoppel, is addressed not to the statute of frauds but to promissory estoppel as a substitute for consideration. However, when one considers the part Samuel Williston took in the formulation of the Restatement of Contracts and then examines Section 178, Comment f., one must conclude that there was an intention to carry promissory estoppel (or call it what you will) into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Williston on Contracts, 1936 Ed., Sec. 533A.

The circumstance of Stephenson's relinquishing his rights with Western and the promise to make a written contract on the future condition, we think, meets the test of the Restatement.

Parenthetically, we observe that California courts probably would reach the same result. Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88. True it is that under earlier decisions where one gave up job A to take job B on an oral promise of long time employment on job B, no exception to the statute of frauds was made. But we believe with the growth of tenure rights and fringe benefits on a given job, the pendulum has swung the other way and that Seymour v. Oelrichs, supra, will generally be followed throughout the country.^[4]

Further, it occurs to us that the Restatement of Contracts, Section 178, Comment f., has come up with a very good compromise in the confusion of decisions under the statute of frauds which leaves some vitality to the statute, yet gives a workable rule in making exceptions.

But when New York, knowing full well what Florida law is, nevertheless to vindicate New York's own laws ignores Florida law, we think we commit no sin to follow the Restatement of Contracts when we cannot be sure whether New York law is purely procedural or is both fundamental and procedural.

In reaching a conclusion as to the nature of the statute (and we here adopt on this point the Restatement of Contracts), we have given some slight weight to the center of gravity theory in conflict of laws. See 56 Yale L.J. 1155. This we would hesitate to do if it were clearly and unequivocally shown that the New York statute of frauds was one going to the initial validity of a contract made in New York.

[299] We do not deem it necessary to proclaim the Alaska statute of frauds one of substance or of procedure. However, we are not impressed with the argument that it must be considered as one of procedure simply because it is found in the procedural sections of the Alaska code. We would think that in a purely Alaskan situation without old Alaska precedents a desire for uniformity among states would indicate that we follow the Restatement of the Law of Contracts, and if Alaska contracts end up in other jurisdictions we should hope that the forum will apply the Restatement. The foregoing expressions, we recognize, would have little basis for suggesting to any other court what it should do unless we hold that the Alaska statute is one of substance. We think substance is the better rule.

We recognize that if we hold the New York statute procedural and the Alaska statute substantive, then it is logical to argue that therefore no statute of frauds is applicable to a New York contract sued upon in the Territory of Alaska. We cannot go that far. We think that we should hold that if the lex loci contractus is procedural and the law of the Territory of Alaska is primarily substantive, the fundamental public policy of the territory should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska.^[5] (If the Alaska statute is procedural, then certainly whatever interpretation we give the Alaska statute is applicable to the Stephenson contract.) Here, following the Restatement of Contracts as we have applied it, and depending on how one looks at it, the contract is not within the Alaska statute, or it is within Alaska's statute but subject to a recognized exception of the Restatement of Contracts.

A contention arises that it was stipulated (or there was expressed or implied consent) that New York law is applicable. We think the record does not sustain that contention.

Defendant complains that the record shows plaintiff failed to mitigate his damages. Of course, the plaintiff did have a duty to mitigate his damage, and his excuses for failing to seek other employment are rather flimsy. But we take it, on the issue of failure to mitigate damages, the burden of proof rested upon the defendant. After carefully considering the evidence on the subject we think that a jury question was presented as to whether plaintiff should be charged with failure to mitigate.

Alaska, Inc., also complains that it was clearly entitled to an offset or to deduct from the plaintiff's claim for wages admittedly due by Alaska, Inc., payments made by plaintiff on a purchase contract for a house in Anchorage, Alaska. The contract provided that in the event Stephenson did not complete the purchase of the house the payments should be considered as rent. We have considered the evidence which appellee argues entitled the question of reimbursement for home payments to go to the jury. We think plaintiff's evidence on this point was little more than that it was his opinion he was entitled to be repaid for the installments paid on his real estate contract. And for all that the record shows, Stephenson's equity in the place may have increased beyond the amount he paid. These payments being $2,000, the verdict on the second cause of action should be reduced in that amount.

The judgment on plaintiff's first claim in the amount of $11,050 is affirmed. The judgment for $2,695.20 on the second claim is to be modified by the trial court's reducing it to the extent of $2,000 to $695.20.

[300] Each party should pay his own costs on appeal, except that the appellee should be charged with half of the cost of the reporter's transcript of evidence and half of the cost of the printed record.

As directed to be modified, the judgment is affirmed.

LEMMON, J., did not participate in the decision of this case.

[1] Stephenson's citizenship was not pleaded.

[2] The New York statute of frauds provides as follows:

New York Personal Property Law, McKinney's Consol.Laws, c. 41.

"31. Agreements required to be in writing

"Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;

"1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; * * *."

The Alaska statute reads:

Alaska Compiled Laws, Section 58-2-2

"In the following cases an agreement is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged or by his lawfully authorized agent: First. An agreement that by its terms is not to be performed within a year from the making thereof; * * *."

[3] The term promissory estoppel generally is considered to be properly applied when the existence of "promissory estoppel" is used as a substitute for consideration in the law of contracts to create a binding contract. However, the term, correctly or not, is found in many cases where courts are making exceptions to prevent manifest injustice in statute of frauds cases. 3 Stanford Law Review 281.

[4] See Fibreboard Products, Inc., v. Townsend, 9 Cir., 202 F.2d 180, following Monarco v. Lo Greco, 35 Cal.2d 621, 220 P.2d 737.

[5] Section 602, Restatement of Conflicts, is as follows:

"Formal Requirements.

"If the law of the forum forbids action unless certain forms have been employed, no action can be maintained on a foreign cause of action without satisfying such requirements of form."