First, the recent case of McQueeney v. Glenn, 400 N.E.2d 806, 810-11 (Ind.App. 1980) reaffirmed that Shaw is controlling law in Indiana. Second, the district court's perceived "conflict" in Indiana law is based on a misreading of the holding of Seco Chemicals, Inc. v. Stewart, 349 N.E.2d 733 (Ind.App. 1976). Proper quotation of the language in Seco demonstrates that it is squarely in line with the rest of Indiana authority.

The Court of Appeals erred in its opinion in interpretation of Ind. R. Tr. P. 59(D). (A) In another case in that Court, Seco Chemicals, Inc., etc. v. Stewart, (1976) Ind. App., 349 N.E.2d 733, it observed that the only mention of cross appeals in our rules is in Ind. R. Tr. P. 59(D) and Ind. R. Ap. P. 8.1(A) and 8.3(D). That opinion left open the question, however, whether the provisions which address cross-appeals are applicable only in those instances in which new matters, or evidence outside the record, are raised in the form of affidavits.

Thus, the key is whether there is a contract for a definite term. "Where . . . there is an employment contract for a definite term in which the employer has not reserved the right to terminate the employment before the conclusion of the [term] of the contract, the employment `may not be terminated except for cause or by mutual agreement.'" Seco Chemicals, Inc. v. Stewart, 349 N.E.2d 733, 738 (Ind.App. 1976) ( quoting Rochester Capital Leasing Corp. v. McCracken, 295 N.E.2d 375, 378 (Ind.App. 1973). In this case, although the parties' arguments on this issue do not immediately point to this conclusion, it is apparent that the plaintiffs had employment contracts with the University for a definite term of one academic year.

See 1A Corbin on Contracts § 152, n. 11.20 at 16 (1963) (emphasis supplied); see also id. at 17 (analyzing Rope v. Mobile O.R. Co., 136 Miss. 38, 100 So. 585 (1924)). In fact, a later Indiana Appellate Court cited this section of Corbin's treatise with approval in Seco Chemicals, Inc. v. Stewart, Ind. App., 349 N.E.2d 733, 737-738 (1976). In Seco, the plaintiff-employee won his breach of contract action against his employer.

Under a contract such as this that is for a definite term but does not speak to termination, the employer may not avoid its contractual obligations prior to the end of the relevant period absent cause or agreement of the parties. Peterson v. Culver Educational Foundation, 402 N.E.2d 448, 451 (Ind.App. 1980); Seco Chemicals, Inc. v. Stewart, 349 N.E.2d 733, 738 (Ind.App. 1976); Rochester Capital Leasing Corp. v. McCracken, 295 N.E.2d 375, 378 (Ind.App. 1973). As the Court of Appeals succinctly stated in Seco Chemicals, "Where, as here, there is an employment contract for a definite term in which the employer has not reserved the right to terminate the employment before the conclusion of the contract, the employment `may not be terminated before the expiration of such term except for cause or by mutual agreement.'"

Wior v. Anchor Industries, Inc., 669 N.E.2d at 175; Speckman v. Indianapolis, 540 N.E.2d 1189, 1192 (Ind. 1989); McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392 (Ind. 1988). Seco Chemicals, Inc. v. Stewart, 169 Ind. App. 624, 633, 349 N.E.2d 733, 738 (1976). The employment-at-will doctrine is a rule of contract construction, not a rule imposing substantive limitations on the parties' freedom to contract.

Courts in other jurisdictions have upheld employment contract stipulated damages clauses similar to the one in issue here. Zeppenfeld v. Morgan, 185 S.W.2d 898 (Mo.App. 1945); Anderson v. Cactus Heights Country Club, 80 S. Dak. 417, 125 N.W.2d 491 (1963); Musman v. Modern Deb, Inc., 50 A.D.2d 761, 377 N.Y.S.2d 17 (1975); Seco Chemicals, Inc. v. Stewart, 169 Ind. App. 624, 349 N.E.2d 733 (1976). As we said previously, the employer, the party challenging the contract, carries the burden of proving that the stipulated amount of damages is grossly disproportionate to the actual harm and thus unreasonable.

Id. at 778. This court had occasion to flesh out what constitutes good cause in Seco Chemicals, Inc., Div'n of Stan Sax Corp. v. Stewart, 169 Ind. App. 624, 633-34, 349 N.E.2d 733, 738-39 (1976), where we looked to 53 Am. Jur.2d, Master and Servant § 51, at 126-27 and concluded that "good cause" embodies concepts of inefficiency, unskillfulness, neglect, or carelessness. An employee must be competent to perform the work undertaken, must have the requisite skill and knowledge to enable him or her to do it, and must do the work in a careful manner. If the employee is not qualified to do the work which he or she undertakes, if he or she is incompetent, unskillful or inefficient, or if he or she executes his or her work in a negligent manner or is otherwise guilty of neglect of duty, he or she may lawfully be discharged before the expiration of the term of employment. Id.

In the area of a breach of an employment contract the non-breaching party must make a reasonable attempt to find work of a similar nature. Seco Chemicals, Inc. v. Stewart (1976), Ind. App., 349 N.E.2d 733; Inland Steel Co. v. Harris (1911), 49 Ind. App. 157, 95 N.E. 271. And the burden is upon the employer to show that the employee has failed to mitigate damages. Hamilton v. Love (1899), 152 Ind. 641, 53 N.E. 181, 54 N.E. 437; Seco Chemicals, Inc. v. Stewart, supra.

Plaintiff's action for wrongful discharge resulted in a jury verdict in his favor. The parties agree that a contract of employment for a definite term containing, as here, no provisions with respect to termination, may be terminated before the expiration of the term by mutual agreement or for cause. Seco Chemicals, Inc., Division of Stan Sax Corporation v. Stewart, (1976) Ind. App., 349 N.E.2d 733; Rochester Capital Leasing Corporation v. McCracken, (1973) 156 Ind. App. 128, 295 N.E.2d 375. Defendants, however, incorrectly rely on School City of Crawfordsville v. Montgomery, (1933) 99 Ind. App. 526, 187 N.E. 57, for the proposition that defendant Barone's decision to dismiss the plaintiff is not reviewable except for bad faith, corruption, fraud or gross abuse of discretion. That rule is limited to situations where power has been conferred upon an administrative officer or board, either by statute or by contract, to remove a teacher for cause, and such is not the case here. Inasmuch as the plaintiff did not agree to his dismissal, we must inquire into the evidence as to whether his dismissal was justified by a cause for discharge.