The court held that the lease's duration was not an
indefinite period of time; rather, it could be terminated by
either party upon or after the occurrence of the event, namely
the exercise of the option on October 1, 1978. Id. The court
found that the specified date by which the option had to be
exercised was sufficient to fix the term of the lease
The court asserted that its holding was the only reasonable
interpretation of the contract, for to hold otherwise would
have made the option provision meaningless. Id. The court
stated that it is not likely that the defendant would have
leased the equipment, paid rent and received a credit against
the purchase price, if the lease was terminable before October
1, 1978, which war, the first time at which the option could be
exercised. Id. Considering these factors together, the court
concluded that it was abundantly clear that the lease agreement
was not terminable at will, but at the earliest time,
terminable at the expiration of the option period, October 1,
It is this Court's opinion that in the cases where courts
have found that surrounding circumstances gave rise to a term
of duration in a contract, those contracts contained
provisions in which a specific event could be identified
within the four corners of the contract which permitted
termination. The Court has not found any case in which the
courts have found a contract to be terminable at a certain
point in time or upon the happening of a certain event, where
that event is not ascertainable from the four corners of the
document. Therefore, consistent with the cases discussed
above, the Court finds that the contract in the present case
does not contain the type of specific event or happening which
would properly lead the Court to the conclusion that the
contract, in its present form, contains a term of duration.
Further, even though the contract does contain a discussion
of Miller's compensation, the Court finds that this discussion
of compensation is not of such a nature as to establish a term
of duration. As held by the district court in FCT and Illinois
Appellate Court in Mann v. Ben, contract language pertaining to
compensation of one party is not alone sufficient to establish
a term of duration.
The Court notes that the contract theory of partial
performance is not relevant to the disposition of this case.
Miller and the Defendants had an ongoing relationship, whereby
Miller was periodically compensated for the machinery sold by
it. This situation is distinguished from the partial
performance and reasonable reliance case where one party has
totally or substantially performed his or her part of the
bargain in reliance upon the belief that the other party will
subsequently fulfill his or her obligation.
For the reasons previously discussed, the Court finds that
the contract entered into by the parties, in the present case,
is a contract terminable at will. Therefore, the Acroloc and
Bayer Motion to Dismiss Count I of Miller's Complaint is
GRANTED, because a breach of contract claim of this nature
cannot be sustained where both parties had the right to
terminate the contract at any time.
As to Count II of the Complaint, the Acroloc and Bayer
Motion to Dismiss contends that Miller's request for punitive
damages in Count II of the Complaint must be stricken. This
assertion is founded upon Acroloc's and Bayer's
characterization of Count II as a claim for breach of
It appears undisputed that punitive damages are not
recoverable for a breach of contract under Illinois law.
Morrow v. L.A. Goldschmidt Association, 112 Ill.2d 87, 96
Ill.Dec. 939, 492 N.E.2d 181 (1986). The Illinois Supreme Court
expressly held "[R]ecovery for solely economic losses is more
appropriately governed by contract, rather than tort law
principles." Morrow v. L.A. Goldgehmidt Association, 96 Ill.
Dec. at 942, 492 N.E.2d at 184, citing Moorman Manufacturing
Company v. National Tank Company, 91 Ill.2d 69, 61 Ill.Dec.
746, 435 N.E.2d 443 (1982). However, in its response to
Defendants' Motion to Dismiss, Miller asserts that his request
for punitive damages is not based upon a breach of contract;
rather, it is based upon
a tortious breach of duty identified as breach of fiduciary
duty, tortious interference with contractual relations, or
retaliation for his exercise of the right to redress in the
After reviewing the pleadings and the case law set forth in
the pleadings, the Court finds it difficult to ascertain the
true nature of the claim alleged by Miller in Count II.
However, the Court does conclude that Count II does allege
something other than a breach of contract claim.
On November 18, 1987, this Court entered an order directing
Miller to supplement the record with a pleading which
specifically identified which Illinois tort he was alleging in
Count II. In an attempt to comply with this directive, Miller
filed a pleading which states:
"Plaintiff alleges the following torts under
Illinois law in Count II of the Amended
1. Breach of trust premised on the following
(a) Breach of the fiduciary obligations of good
faith, loyalty, and fair dealing by Defendants.
(b) Alternatively, if the court accepts
Defendants contention that Defendants have no
fiduciary duties to Plaintiff, breach of
confidential relation giving rise to a
2. Tortious interference with contract.
Defendants have answered this claim (see docket
number 12 filed on July 21, 1987).
3. Retaliatory tort — unexcused refusal to pay the
undisputed commission due Plaintiff in retaliation
for Plaintiff's exercise of his bid for a redress
in the courts contrary to the public policy of
Illinois warranting imposition of punitive damages.
(20-30 of Count II of Amended Complaint)"
Despite this filing, Count II of Miller's Complaint is clearly
in violation of Federal Rule of Civil Procedure 10(b) because
it alleges a multiplicity of claims in one count. Therefore,
Count II of the Complaint is DISMISSED for violation of
Federal Rule of Civil Procedure 10(b), and Miller is GRANTED
leave to replead these claims in separate counts if it so
chooses. Further, in light of this ruling, the Defendants'
Motion to Dismiss Count II of the Complaint is MOOT.
Similarly, the Defendants' Motion to Strike Miller's Count II
request for punitive damages is also MOOT.
It is ordered that Acroloc's and Bayer's Motion to Dismiss
Count I of the Complaint is GRANTED.
Further, Count II of the Complaint is in violation of
Federal Rule of Civil Procedure 10(b), and is therefore
DISMISSED. Plaintiff is given 7 days to replead Count II in
conformance with this Order.
Further, Acroloc's and Bayer's Motion to Dismiss Count II of
the Complaint is MOOT.
Further, Acroloc's and Bayer's Motion to Strike the Count II
punitive damage request is MOOT.
Further, Acroloc's and Bayer's Motion to Strike all
references to settlement and compromise is MOOT.
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