No binding contract exists if some of those terms remained disputed when one party decided not to go through with the written agreement. See Pro. Facilities Corp. v. Marks, 131 N.W.2d 60, 63 (Mich. 1964); Cent. Warehouse Operations, Inc. v. Riffel, 2015 WL 1314634, at *4 (Mich. Ct. App. Mar. 24, 2015) (per curiam). Yet Averhealth's argument fails on the facts.
He simply argues that any unilateral attempt by Storer to change an existing discharge-for-cause policy can be no more than a proposal for modification of the contract for which mutual assent would be required. However, Bankey admonishes us that there must be a "meeting of the minds" upon all essential points to constitute a valid contract, citing, among others, Professional Corporation v Marks, 373 Mich. 673; 131 N.W.2d 60 (1964); Fisk v Fisk, 328 Mich. 570; 44 N.W.2d 184 (1950); Universal Leaseway Systems, Inc v Herrud Co, 366 Mich. 473; 115 N.W.2d 294 (1962). The major difficulty with such an argument as applied to the question before us is that the contractual obligation which may not be modified without mutual assent, under Bankey's theory, could have arisen without mutual assent under Toussaint's own terms: "We hold that employer statements of policy . . . can give rise to contractual rights in employees without evidence that the parties mutually agreed that the policy statements would create contractual rights in the employee.
Socony-Vacuum Oil Co, Inc v Waldo, 289 Mich. 316, 323; 286 N.W. 630 (1939). Similarly, if the agreement is conditioned on the happening of a future event that, through no fault of the parties, never happens, liability does not attach. Professional Facilities Corp v Marks, 373 Mich. 673, 678; 131 N.W.2d 60 (1964): "The conditions upon which defendants' liability for a fee were to depend are not alleged to have been fulfilled at any time." The fact that the parties in this case expressly left certain matters to be negotiated in the future is some evidence that the memorandum of March 11, 1977, was not intended to be a binding contract.
The scope of the examination is confined to the pleadings. See Pompey v General Motors Corp, 385 Mich. 537, 563; 189 N.W.2d 243 (1971); Professional Facilities Corp v Marks, 373 Mich. 673, 679; 131 N.W.2d 60 (1964). To state an actionable claim against the state, a pleader must plead facts in the complaint, in avoidance of immunity.
See also Hansen v Catsman, 371 Mich. 79, 82-84; 123 N.W.2d 265 (1963) (finding no enforceable agreement when essential terms of building plans for a drug store were left for future negotiations and had to be "acceptable to both parties") and Professional Facilities Corp v Marks, 373 Mich. 673, 678-679; 131 N.W.2d 60 (1964) (providing that agreements to negotiate are unenforceable for lack of material terms). Additionally:
It is further to be noted, however, that If the document or contract that the parties agreed to make is to contain any material term that is not already agreed on, no contract has yet been made; and the so-called contract to make a contract is not a contract at all. [Prof Facilities Corp v Marks, 373 Mich. 673, 679; 131 N.W.2d 60 (1964) (quotation marks and citations omitted).]
While it is possible for parties to make a contract binding them to "prepare and execute a subsequent agreement" if all essential terms are expressed, where the future agreement is to contain a material term not already agreed upon "the so-called 'contract to make a contract' is not a contract at all." Prof Facilities Corp v Marks, 373 Mich 673, 679; 131 NW2d 60 (1964). Because the parties never reached an agreement on all material terms, the trial court abused its discretion in granting plaintiff's motion.
Caldwell v Fox, 394 Mich. 401, 407; 231 N.W.2d 46 (1975). In Professional Facilities Corp v Marks, 373 Mich. 673, 679; 131 N.W.2d 60 (1964), the Court held that a so-called "contract to make a contract" is no contract at all if the contract the parties agree to make is to contain a material term not already agreed upon. Here, the trial court viewed the evidence in the light most favorable to plaintiffs and concluded that, in view of Professional Facilities Corp v Marks, no separate contract was made.
"`Mutual manifestations of assent that are in themselves sufficient to make a contract will not be prevented from so operating by the mere fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but other facts may show that the manifestations are merely preliminary expressions.'" See, also, Professional Facilities Corp v Marks, 373 Mich. 673, 679; 131 N.W.2d 60 (1964). Plaintiff contends, however, that Schreiber never intended for the letters of July 25 and August 1, 1978, to extend the covenant not to sue to business interruption losses.
In our opinion, the language of the March 11, 1977, letter of intent clearly shows it was not intended to be a binding contract but operated only as an unenforceable agreement to agree. See Professional Facilities Corp v Marks, 373 Mich. 673, 679; 131 N.W.2d 60 (1964), Socony-Vacuum Oil Co, Inc v Waldo, 289 Mich. 316, 322-324; 286 N.W. 630 (1939). Our resolution of this issue renders any discussion of the other issues raised on appeal unnecessary.