The opinion of the court was delivered by: BUCKLO
The plaintiff, Edwin E. Ellis, served as executive vice president of defendant Chicago West Pullman Transportation Corporation ("CWPT") and was a member of CWPT's board of directors. Defendant Robert E. Smith was president and chief executive officer of CWPT. Mr. Smith fired Mr. Ellis, who has brought this action for breach of contract and tortious interference with his employment contract. CWPT and Mr. Smith have filed a motion for summary judgment on counts I and II. The motion is denied.
The defendants argue that there was no employment contract between Mr. Ellis and CWPT because CWPT failed to deliver the contract to Mr. Ellis after both parties had signed it. Delivery is relevant to the formation of a contract if "the offer specifies actual delivery as an essential part of acceptance of the offer." Soderstrom v. Rock River Valley Pigeon Club, Inc., 122 Ill. App. 3d 819, 461 N.E.2d 547, 548, 77 Ill. Dec. 924 (3rd Dist. 1984). In this case it is undisputed that in January, 1992, Mr. Smith and Mr. Ellis signed an employment agreement, and the agreement was returned to Mr. Smith to be kept in CWPT's vault in its Chicago office. The defendants argue that the only reasonable inference from this fact is that delivery was a precondition to an enforceable contract. However, they offer no evidence that anyone ever said so. There is accordingly insufficient evidence to find as a matter of law that delivery was an essential part of acceptance.
The defendants argue that Mr. Smith informed Mr. Ellis that the employment agreement would only take effect in the event of a hostile takeover. The parties agree that the employment agreement states:
The term of this Agreement shall begin July 1, 1991 and continue until June 30, 1996 [Initial Term] and shall renew automatically for one year periods [Renewal Periods] unless sooner terminated as hereinafter provided.
The parol evidence rule generally prohibits the consideration of extrinsic evidence of prior or contemporaneous agreements to change the terms of a written contract. Cox v. Doctor's Associates, Inc., 245 Ill. App. 3d 186, 613 N.E.2d 1306, 1321, 184 Ill. Dec. 714 (5th Dist. 1993). The defendants are correct that an exception to the parol evidence rule exists where the evidence is offered to show that the parties intended the contract to take effect only upon the fulfillment of a condition precedent. Northern Trust Company v. Brentwood North Nursing and Rehabilitation Center, Inc., 225 Ill. App. 3d 1039, 588 N.E.2d 467, 470, 167 Ill. Dec. 826 (2nd Dist. 1992); Davis v. Buchholz, 101 Ill. App. 3d 388, 428 N.E.2d 198, 201, 56 Ill. Dec. 879 (3rd Dist. 1981). The fact finder may consider all relevant evidence in determining whether a written contract is the complete agreement of the parties. Northern Trust Company v. Brentwood North Nursing and Rehabilitation Center, Inc., supra, 588 N.E.2d at 470. Accordingly, I may consider evidence that the parties agreed that the effectiveness of Mr. Ellis' employment contract was conditional on a hostile takeover of CWPT.
The parties dispute whether a hostile takeover of CWPT was a condition precedent to the existence of Mr. Ellis' employment agreement. Mr. Smith testified in his deposition that the contract was to take effect only in the event of a hostile takeover. Smith Dep., p. 71-73. Regarding Mr. Ellis' understanding of the formation of his employment agreement, the following colloquy occurred during Mr. Smith's deposition:
Q My question to you is do you recall any specific conversation with Mr. Ellis concerning when, if at all, the contract would be effective?
A I am not sure I understand the question. If you are asking me did Mr. Ellis know that these things were only to be pulled out of the vault in the event of a hostile takeover, the answer is absolutely yes. No question about it.
Q On what do you base that?
A He was right there when we had all the conversations. Why else would I call him in and give him a contract when he worked for us since 1985 and didn't have one and do it on a day's notice.
Q What as specifically as you can recall did you say with regard to when, if at all, the contracts would be effective?
A Mr. Looby
was told to take the contracts out of the vault and distribute them in the ...