than other views which might be taken. For instance, it would be contrary to the facts to hold that the employer agreed with its employees to pay pensions to them and merely guarantee these payments through its contract with the insurance company. The language of the application card and of the policy excludes this view. This employer, apparently for business reasons, deemed it inadvisable to enter into such agreement with its employees but rather chose to procure for them a direct obligation from the Continental Assurance Company which both it and its employees would pay for.
It is also difficult logically to view this transaction as a contract between the employer and the insurance company wherein the employees were merely third-party beneficiaries. At least, to refer to them as such is misleading. They applied to the insurance company, not the employer, for their rights under the plan and agreed with it that payroll deductions could be made.
Obviously, when the defendant delivered to the plaintiff the booklet which, inadvertently, told him that he was entitled to early retirement as of right, it had no intention of altering the contract and, in fact, the plaintiff does not suggest that it did. However, a party may be bound by his words or conduct, without any intention to assume legal obligation if the words or conduct are such that a reasonable man of ordinary carefulness and intelligence would understand that such was his intention. This was the basis of the first interrogatory which the jury answered 'Yes'.
In my opinion, the interrogatory should not have been submitted or, if submitted, the jury should have been directed to answer 'No', because, under the undisputed testimony, no reasonable man in the plaintiff's position could have understood that the defendant intended by the booklet to alter or change the master contract which governed the pension plan. A reasonable man in the plaintiff's position, having signed the application card of December 1950, would know that there was a contract in existence to which the defendant and Continental were parties and to which he had subscribed. Not only had he subscribed to it but by so doing he had authorized his employer and Continental to contract for him and had adopted the contract which they made. When he got the booklet, he would know that the pension plan had been in existence for over a year and a half. On reading the booklet, he would be at once advised that it, together with the accompanying letter, purported to be an explanation of an existing plan or contract without any suggestion or announcement of a change. The evidence simply will not allow for a finding that the defendant had abandoned the original agreement among itself, its employees and Continental and substituted for it an agreement between itself and its employees. The answer of the jury to the first interrogatory, which necessarily involved a finding that the distribution of the booklet and subsequent payments made by th employee thereafter established a new contract between the employer and the employee, cannot under the undisputed evidence be sustained.
The plaintiff argues that, if the booklet did not create any obligation of a contractual nature on the part of the defendant, then the defendant is estopped from setting up as a bar to the plaintiff's recovery the provision of the contract with the insurance company requiring the employer's consent before an employee could take advantage of the early retirement provision.
The principles of equitable estoppel, or estoppel in pais, are too well settled to need elaboration here. Unquestionably the booklet, in omitting reference to the necessity of company consent, amounted to a misrepresentation (although entirely innocent) upon which the plaintiff could justifiably rely, and the jury found that when he left the employ of Howard Stores, he believed that he was entitled to a pension in accordance with the incorrect version of his rights given in the booklet.
The question remains whether he did, in reliance upon the booklet, surrender any rights or incur any detriment or alter his position to his prejudice. Although the evidence was to the effect that he could have stayed in the defendant's employ or could have had his job back if he had applied for it shortly after leaving, it may be assumed for the purposes of the discussion that when he left the employ of the defendant he altered his position to his detriment. The plain fact is that when he left his job he knew that the defendant was not going to allow him the benefit of early retirement without its consent. I think the plaintiff makes the mistake of assuming that, when he wrote his letter of November 7 announcing his intention to quit, he had taken final action. The fact is that his act in quitting, not his writing the letter@ of November 7, was the thing which actually severed his connection with the company, and it could not be that he quit in reliance on a supposed promise which had been plainly and unequivocally withdrawn. Consequently, there would be no issue of fact that could properly be submitted to a jury as to his reliance, and the plaintiff cannot recover on the theory of estoppel.
On a third alternative theory based neither on contract nor estoppel but upon tortious misrepresentation, the plaintiff might be entitled to recover the amount of money deducted from his weekly pay between June 13 and the date when he quit, November 26, at 6% interest. He has not asked for this, however. In any event he is entitled to the return of the deductions, by the terms of his contract.
An order may be submitted in accordance with the conclusions of the foregoing opinion.
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