CONTRACTS
HAMER v. SIDWAY
124 N.Y. 538 (New York Court of Appeals 1891)
PARKER, J.
The question which lies at the foundation of plaintiff's asserted right of recovery is whether, by
virtue of a contract, defendant's testator William E. Story became indebted to his nephew
William E. Story, 2d, on his twenty-first birthday in the sum of five thousand dollars. The trial
court found as a fact that 'on the 20th day of March, 1869, William E. Story agreed to and with
William E. Story, 2d, that if he would refrain from drinking liquor, using tobacco, swearing, and
playing cards or billiards for money until he should become 21 years of age then he, the said
William E. Story, would at that time pay him, the said William E. Story, 2d, the sum of $5,000
for such refraining, to which the said William E. Story, 2d, agreed,' and that he 'in all things fully
performed his part of said agreement.'
In further consideration of the question presented, then, it must be deemed established for the
purposes of this appeal, that on the 31st day of January, 1875, defendant's testator was indebted
to William E. Story, 2d, in the sum of $5,000, and on that date the nephew wrote to his uncle as
follows:
'DEAR UNCLE—I am now 21 years old to-day and I believe, according to agreement, that there
is due me $5,000. I have lived up to the contract to the letter in every sense of the word.'
A few days later, and on February sixth, the uncle replied as follows:
'DEAR NEPHEW—Your letter of the 31st ult. came to hand all right saying that you had lived
up to the promise made to me several years ago. I have no doubt but you have, for which you
shall have $5,000 as I promised you. I had the money in the bank the day you was 21 years old
that I intended for you, and you shall have the money certain. Now, Willie, I don't intend to
interfere with this money in any way until I think you are capable of taking care of it, and the
sooner that time comes the better it will please me. I would hate very much to have you start out
in some adventure that you thought all right and lose this money in one year. This money you
have earned much easier than I did, besides acquiring good habits at the same time, and you are
quite welcome to the money. Hope you will make good use of it.
W. E. STORY.
'P. S.—You can consider this money on interest.'
The trial court found as a fact that 'said letter was received by said William E. Story, 2d, who
thereafter consented that said money should remain with the said William E. Story in accordance
with the terms and conditions of said letter.' And further, 'That afterwards, on the first day of
March, 1877, with the knowledge and consent of his said uncle, he duly sold, transferred and
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assigned all his right, title and interest in and to said sum of $5,000 to his wife Libbie H. Story,
who thereafter duly sold, transferred and assigned the same to the plaintiff [Louisa W. Hamer] in
this action.' [The uncle died on January 29, 1887 without having paid any portion of the $5,000
and interest to his nephew.]
The defendant [Franklin Sidway, the executor of the estate of the uncle, William E. Story]
contends that the contract was without consideration to support it, and, therefore, invalid. He
asserts that the promisee [William E. Story, 2d] by refraining from the use of liquor and tobacco
was not harmed but benefitted; that that which he did was best for him to do independently of his
uncle's promise, and insists that it follows that unless the promisor [William E. Story] was
benefitted, the contract was without consideration. A contention, which if well founded, would
seem to leave open for controversy in many cases whether that which the promisee did or omitted
to do was, in fact, of such benefit to him as to leave no consideration to support the enforcement
of the promisor's agreement. Such a rule could not be tolerated, and is without foundation in the
law. The Exchequer Chamber, in 1875, defined consideration as follows: 'A valuable
consideration in the sense of the law may consist either in some right, interest, profit or benefit
accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or
undertaken by the other.' Courts 'will not ask whether the thing which forms the consideration
does in fact benefit the promisee or a third party, or is of any substantial value to anyone. It is
enough that something is promised, done, forborne or suffered by the party to whom the promise
is made as consideration for the promise made to him.' (Anson's Prin. of Con. 63.)
'In general a waiver of any legal right at the request of another party is a sufficient consideration
for a promise.' (Parsons on Contracts, 444.) 'Any damage, or suspension, or forbearance of a right
will be sufficient to sustain a promise.' (Kent, vol. 2, 465, 12th ed.) Pollock, in his work on
contracts, after citing the definition given by the Exchequer Chamber already quoted, says: 'The
second branch of this judicial description is really the most important one. Consideration means
not so much that one party is profiting as that the other abandons some legal right in the present
or limits his legal freedom of action in the future as an inducement for the promise of the first.'
Now, applying this rule to the facts before us, the promisee used tobacco, occasionally drank
liquor, and he had a legal right to do so. That right he abandoned for a period of years upon the
strength of the promise of the testator that for such forbearance he would give him $5,000. We
need not speculate on the effort which may have been required to give up the use of those
stimulants. It is sufficient that he restricted his lawful freedom of action within certain prescribed
limits upon the faith of his uncle's agreement, and now having fully performed the conditions
imposed, it is of no moment whether such performance actually proved a benefit to the promisor,
and the court will not inquire into it. Few cases have been found which may be said to be
precisely in point, but such as have been support the position we have taken.
In Lakota v. Newton, the complaint averred defendant's promise that 'if you (meaning plaintiff)
will leave off drinking for a year I will give you $100,' plaintiff's assent thereto, performance of
the condition by him, and demanded judgment therefor. Defendant demurred on the ground that
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the plaintiff's declaration did not allege a valid and sufficient consideration for the agreement of
the defendant. The demurrer was overruled.
In Talbott v. Stemmons, the step-grandmother of the plaintiff made with him the following
agreement: 'I do promise and bind myself to give my grandson, Albert R. Talbott, $500 at my
death, if he will never take another chew of tobacco or smoke another cigar during my life from
this date up to my death.' The executor of Mrs. Stemmons demurred to the complaint on the
ground that the agreement was not based on a sufficient consideration. The demurrer was
sustained and an appeal taken therefrom to the Court of Appeals, where the decision of the court
below was reversed. In the opinion of the court it is said that 'the right to use and enjoy the use of
tobacco was a right that belonged to the plaintiff and not forbidden by law. The abandonment of
its use may have saved him money or contributed to his health, nevertheless, the surrender of that
right caused the promise, and having the right to contract with reference to the subject-matter, the
abandonment of the use was a sufficient consideration to uphold the promise.'
The cases cited by the defendant on this question are not in point. In Mallory v. Gillett (21 N. Y.
412); Belknap v. Bender (75 id. 446), and Berry v. Brown (107 id. 659), the promise was in
contravention of that provision of the Statute of Frauds, which declares void all promises to
answer for the debts of third persons unless reduced to writing. In Robinson v. Jewett (116 N. Y.
40), the court simply held that 'The performance of an act which the party is under a legal
obligation to perform cannot constitute a consideration for a new contract.'
Judgment of the [trial court in favor of plaintiff] affirmed, with costs payable out of the estate.
DOUGHERTY v. SALT
125 N.E. 94 (New York Court of Appeals 1919)
CARDOZO, J.
The plaintiff, a boy of eight years, received from his aunt, the defendant's testatrix, a promissory
note for $3,000 payable at her death or before. Use was made of a printed form, which contains
the words "value received." How the note came to be given, was explained by the boy's guardian,
who was a witness for his ward. The aunt was visiting her nephew. "When she saw Charley
coming in, she said 'Isn't he a nice boy?" I answered her, yes, that he is getting along very nice,
and getting along nice in school, and I showed where he had progressed in school, having good
reports, and so forth, and she told me that she was going to take care of that child, that she loved
him very much. I said, 'I know you do, Tillie, but your taking care of the child will be done
probably like your brother and sister done, take it out in talk.' She said: 'I don't intend to take it
out in talk, I would like to take care of him now.' I said, 'Well, that is up to you.' She said, 'Why
can't I make out a note to him?' I said, 'You can, if you wish to.' She said, 'Would that be right?"
And I said, 'I do not know, but I guess it would; I do not know why it would not.' And she said,
'Well, will you make out a note for me?' I said, 'Yes, if you wish me to,' and she said, 'Well, I
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wish you would.'" A blank was then produced, filled out, and signed. The aunt handed the note to
her nephew with these words, "You have always done for me, and I have signed this note for you.
Now, do not lose it. Some day it will be valuable."
The trial judge submitted to the jury the question whether there was any consideration for the
promised payment. Afterwards, he set aside the verdict in favor of the plaintiff, and dismissed the
complaint. The Appellate Division, by a divided court, reversed the judgment of dismissal, and
reinstated the verdict on the ground that the note was sufficient evidence of consideration.
We reach a different conclusion. The inference of consideration to be drawn from the form of the
note has been so overcome and rebutted as to leave no question for a jury. This is not a case
where witnesses summoned by the defendant and friendly to the defendant's cause, supply the
testimony in disproof of value. This is a case where the testimony in disproof of value comes
from the plaintiff's own witness, speaking at the plaintiff's instance. The transaction thus revealed
admits of one interpretation, and one only. The note was the voluntary and unenforceable
promise of an executory gift. This child of eight was not a creditor. The aunt was not paying a
debt. She was conferring a bounty. The promise was neither offered nor accepted with any other
purpose. "Nothing is consideration that is not regarded as such by both parties." . . .
A note so given is not made for "value received," however its maker may have labeled it. The
formula of the printed blank becomes, in the light of the conceded facts, a mere erroneous
conclusion, which cannot overcome the inconsistent conclusion of the law. The plaintiff, through
his own witness, has explained the genesis of the promise, and consideration has been disproved.
We hold, therefore, that the verdict of the jury was contrary to law, and that the trial judge was
right in setting it aside. Judgment accordingly.
KIRKSEY v. KIRKSEY
8 Ala. 131 (1845)
ASSUMPSIT by the defendant, against the plaintiff in error. The question is presented in this
Court, upon a case agreed, which shows the following facts:
The plaintiff was the wife of defendant's brother, but had for some time been a widow, and had
several children. In 1840, the plaintiff resided on public land, under a contract of lease, she had
held over, and was comfortably settled, and would have attempted to secure the land she lived
on. The defendant resided in Talladega county, some sixty, or seventy miles off. On the 10th
October, 1840, he wrote to her the following letter:
“Dear sister Antillico--Much to my mortification, I heard, that brother Henry was dead, and one
of his children. I know that your situation is one of grief, and difficulty. You had a bad chance
before, but a great deal worse now. I should like to come and see you, but cannot with
convenience at present. I do not know whether you have a preference on the place you live on, or
not. If you had, I would advise you to obtain your preference, and sell the land and quit the
country, as I understand it is very unhealthy, and I know society is very bad. If you will come
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down and see me, I will let you have a place to raise your family, and I have more open land than
I can tend; and on the account of your situation, and that of your family, I feel like I want you and
the children to do well.”
Within a month or two after the receipt of this letter, the plaintiff abandoned her possession,
without disposing of it, and removed with her family, to the residence of the defendant, who put
her in comfortable houses, and gave her land to cultivate for two years, at the end of which time
he notified her to remove, and put her in a house, not comfortable, in the woods, which he
afterwards required her to leave.
A verdict being found for the plaintiff, for two hundred dollars, the above facts were agreed, and
if they will sustain the action, the judgment is to be affirmed, otherwise it is to be reversed.
Opinion
The inclination of my mind, is, that the loss and inconvenience, which the plaintiff sustained in
breaking up, and moving to the defendant's, a distance of sixty miles, is a sufficient consideration
to support the promise, to furnish her with a house, and land to cultivate, until she could raise her
family. My brothers, however think, that the promise on the part of the defendant, was a mere
gratuity, and that an action will not lie for its breach. The judgment of the Court below must
therefore be reversed.
FEINBERG v. PFEIFFER COMPANY
322 S.W.2d 163 (Mo. 1959)
DOERNER, Commissioner
This is a suit brought by plaintiff, a former employee of the defendant corporation, on an alleged
contract whereby defendant agreed to pay plaintiff the sum of $200 per month for life upon her
retirement. Judgment below was for plaintiff for $5,100, the amount of the pension claimed to be
due as of the date of the trial, together with interest thereon, and defendant duly appealed.
The parties are in substantial agreement on the essential facts. Plaintiff began working for the
defendant, a manufacturer of pharmaceuticals, in 1910, when she was but 17 years of age. By
1947 she had attained the position of bookkeeper, office manager, and assistant treasurer of the
defendant. In addition to her salary, plaintiff from 1937 to 1949, inclusive, received each year a
bonus varying in amount from $300 in the beginning to $2,000 in the later years.
On December 27, 1947, the annual meeting of the defendant’s Board of Directors was held,
presided over by Max Lippman, its then president and largest stockholder. The other directors
present were George Marcus, Sidney Harris, Sol Flammer, and Walter Weinstock. At that
meeting the Board of Directors adopted the following resolution, which, because it is the crux of
the case, we quote in full:
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‘The Chairman thereupon pointed out that the Assistant Treasurer, Mrs. Anna Sacks Feinberg,
has given the corporation many years of long and faithful service. Not only has she served the
corporation devotedly, but with exceptional ability and skill. The President pointed out that
although all of the officers and directors sincerely hoped and desired that Mrs. Feinberg would
continue in her present position for as long as she felt able, nevertheless, in view of the length of
service which she has contributed provision should be made to afford her retirement privileges
and benefits which should become a firm obligation of the corporation to be available to her
whenever she should see fit to retire from active duty, however many years in the future such
retirement may become effective. It was, accordingly, proposed that Mrs. Feinberg’s salary which
is presently $350.00 per month, be increased to $400.00 per month, and that Mrs. Feinberg
would be given the privilege of retiring from active duty at any time she may elect to see fit so to
do upon a retirement pay of $200.00 per month for life, with the distinct understanding that the
retirement plan is merely being adopted at the present time in order to afford Mrs. Feinberg
security for the future and in the hope that her active services will continue with the corporation
for many years. After due consideration, and upon motion duly made and seconded, it was—
‘Resolved, that the salary of Anna Sacks Feinberg be increased from $350.00 to $400.00 per
month and that she be afforded the privilege of retiring from active duty in the corporation at any
time she may elect to see fit so to do upon retirement pay of $200.00 per month, for the
remainder of her life.’
At the request of Mr. Lippman, his sons-in-law, Messrs. Harris and Flammer, called upon the
plaintiff at her apartment on the same day to advise her of the passage of the resolution. Plaintiff
testified on cross-examination that she had no prior information that such a pension plan was
contemplated, that it came as a surprise to her, and that she would have continued in her
employment whether or not such a resolution had been adopted. It is clear from the evidence that
there was no contract, oral or written, as to plaintiff’s length of employment, and that she was
free to quit, and the defendant to discharge her, at any time.
Plaintiff did continue to work for the defendant through June 30, 1949, on which date she retired.
In accordance with the resolution, the defendant began paying her the sum of $200 on the first of
each month. Mr. Lippman died on November 18, 1949, and was succeeded as president by his
widow. She was succeeded in October, 1953, by her son-in-law, Sidney Harris. Mr. Harris
testified that while Mrs. Lippman had been president she signed the monthly pension check paid
plaintiff. After his election, he stated, a new accounting firm employed by the defendant
questioned the validity of the payments to plaintiff, and in the Spring of 1956, upon its
recommendation, he consulted the Company’s attorney, Mr. Ralph Kalish. Harris testified that
both the accounting firm and Kalish told him there was no need of giving plaintiff the money.
Following his discussion with the Company’s attorney plaintiff was sent a check for $100 on
April 1, 1956. Plaintiff declined to accept the reduced amount, and this action followed.
Additional facts will be referred to later in this opinion.
Appellant’s complaint is that there was insufficient evidence to support the court’s findings that
plaintiff would not have quit defendant’s employ had she not known and relied upon the promise
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of defendant to pay her $200 a month for life, and the finding that, from her voluntary retirement
until April 1, 1956, plaintiff relied upon the continued receipt of the pension installments. The
trial court so found, and, in our opinion, justifiably so. Plaintiff testified, and was corroborated by
Harris, defendant’s witness, that knowledge of the passage of the resolution was communicated
to her on December 27, 1947, the very day it was adopted. She was told at that time by Harris
and Flammer, she stated, that she could take the pension as of that day, if she wished. She
testified further that she continued to work for another year and a half, through June 30, 1949;
that at that time her health was good and she could have continued to work, but that after
working for almost forty years she thought she would take a rest. Her testimony continued:
‘Q. Did you then quit the employment of the company after this year and a half? A. Yes.
‘Q. What was the reason that you left? A. Well, I thought almost forty years, it was a long time
and I thought I would take a little rest.
‘Q. Yes. A. And with the pension and what earnings my husband had, we figured we could get
along.
‘Q. Did you rely upon this pension? A. We certainly did.
‘Q. Being paid? A. Very much so. We relied upon it because I was positive that I was going to
get it as long as I lived.
‘Q. Would you have left the employment of the company at that time had it not been for this
pension? A. No.
‘Q. Did you ever seek employment while this pension was being paid to you? A. No.
‘Q. Were you able to hold any other employment during that time? A. Yes, I think so.
‘Q. Was your health good? A. My health was good.’
It is obvious from the foregoing that there was ample evidence to support the findings of fact
made by the court below.
We come, then, to the basic issue in the case: ‘whether plaintiff has proved that she has a right to
recover from defendant based upon a legally binding contractual obligation to pay her $200 per
month for life.’
It is defendant’s contention, in essence, that the resolution adopted by its Board of Directors was
a mere promise to make a gift, and that no contract resulted either thereby, or when plaintiff
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retired, because there was no consideration given or paid by the plaintiff.1 It urges that a promise
to make a gift is not binding unless supported by a legal consideration; that the only apparent
consideration for the adoption of the foregoing resolution was the ‘many years of long and
faithful service’ expressed therein; and that past services are not a valid consideration for a
promise. Defendant argues further that there is nothing in the resolution which made its
effectiveness conditional upon plaintiff’s continued employment, that she was not under contract
to work for any length of time but was free to quit whenever she wished, and that she had no
contractual right to her position and could have been discharged at any time.
Plaintiff concedes that a promise based upon past services would be without consideration, but
contends that there were two other elements which supplied the required element: First, the
continuation by plaintiff in the employ of the defendant for the period from December 27, 1947,
the date when the resolution was adopted, until the date of her retirement on June 30, 1949. And,
second, her change of position, i. e., her retirement, and the abandonment by her of her
opportunity to continue in gainful employment, made in reliance on defendant’s promise to pay
her $200 per month for life.
We must agree with the defendant that the evidence does not support the first of these
contentions. There is no language in the resolution predicating plaintiff’s right to a pension upon
her continued employment. She was not required to work for the defendant for any period of time
as a condition to gaining such retirement benefits. She was told that she could quit the day the
resolution was adopted, and it is clear from her own testimony that she made no promise or
agreement to continue in the employ of the defendant in return for its promise to pay her a
pension. Hence there was lacking that mutuality of obligation which is essential to the validity of
a contract. But as to the second of these contentions we must agree with plaintiff. By the terms of
the resolution defendant promised to pay plaintiff the sum of $200 a month upon her retirement.
Section 90 of the Restatement of the Law of Contracts states that: ‘A promise which the promisor
should reasonably expect to induce action or forbearance of a definite and substantial character
on the part of the promisee and which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise.’ This doctrine has been described
as that of ‘promissory estoppel.’ As pointed out In re Jamison’s Estate, Restatement Section 90
means that the promise described is a contract without any consideration.
Was there such an act on the part of plaintiff, in reliance upon the promise contained in the
resolution, as will estop the defendant, and therefore create an enforceable contract under the
doctrine of promissory estoppel? We think there was. One of the illustrations cited under Section
90 of the Restatement is: ‘2. A promises B to pay him an annuity during B’s life. B thereupon
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Consideration for a promise has been defined in the Restatement of the Law of
Contracts, Section 75, as: (a) an act other than a promise, or (b) a forbearance, or (c) the creation,
modification or destruction of a legal relation, or (d) a return promise, bargained for and given in
exchange for the promise.’ As the parties agree, the consideration sufficient to support a contract
may be either a benefit to the promisor or a loss or detriment to the promisee.
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resigns a profitable employment, as A expected that he might. B receives the annuity for some
years, in the meantime becoming disqualified from again obtaining good employment. A’s
promise is binding.’ This illustration is objected to by defendant as not being applicable to the
case at hand. The reason advanced by it is that in the illustration B became ‘disqualified’ from
obtaining other employment before A discontinued the payments, whereas in this case the
plaintiff did not discover that she had cancer and thereby became unemployable until after the
defendant had discontinued the payments of $200 per month. We think the distinction is
immaterial. The only reason for the reference in the illustration to the disqualification of A is in
connection with that part of Section 90 regarding the prevention of injustice. The injustice would
occur regardless of when the disability occurred. Would defendant contend that the contract
would be enforceable if the plaintiff’s illness had been discovered on March 31, 1956, the day
before it discontinued the payment of the $200 a month, but not if it occurred on April 2nd, the
day after? Furthermore, there are more ways to become disqualified for work, or unemployable,
than as the result of illness. At the time she retired plaintiff was 57 years of age. At the time the
payments were discontinued she was over 63 years of age. It is a matter of common knowledge
that it is virtually impossible for a woman of that age to find satisfactory employment, much less
a position comparable to that which plaintiff enjoyed at the time of her retirement.
The fact of the matter is that plaintiff’s subsequent illness was not the ‘action or forbearance’
which was induced by the promise contained in the resolution. As the trial court correctly
decided, such action on plaintiff’s part was her retirement from a lucrative position in reliance
upon defendant’s promise to pay her an annuity or pension.
The Commissioner therefore recommends, for the reasons stated, that the judgment be affirmed.
KATZ v. DANNY DARE, INC.
610 S.W.2d 121 (Missouri Court of Appeals 1980)
TURNAGE, Presiding Judge.
There is little or no dispute as to the facts in this case. Katz began work for Dare in 1950 and
continued in that employ until his retirement on June 1, 1975. The president of Dare was Harry
Shopmaker, who was also the brother of Katz's wife. Katz worked in a variety of positions
including executive vice president, sales manager, and a member of the board of directors,
although he was not a member of the board at the time of his retirement. In February 1973, Katz
was opening a store, operated by Dare, for business and placed a bag of money on the counter
next to the cash register. A man walked in, picked up the bag of money and left. When Katz
followed him and attempted to retrieve the money, Katz was struck in the head. He was
hospitalized and even though he returned to work he conceded he had some difficulties. His walk
was impaired and he suffered some memory loss and was not able to function as he had before.
Shopmaker and others testified to many mistakes which Katz made after his return at
considerable cost to Dare. Shopmaker reached the decision that he would have to work out some
agreeable pension to induce Katz to retire because he did not feel he could carry Katz as an
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employee. At that time Katz's earnings were about $23,000 per year.
Shopmaker began discussions with Katz concerning retirement but Katz insisted that he did not
want to retire but wanted to continue working. Katz was 65 at the time of his injury and felt he
could continue performing useful work for Dare to justify his remaining as an employee.
However, Shopmaker persisted in his assessment that Katz was more of a liability than an asset
as an employee and continued negotiating with Katz over a period of about 13 months in an
effort to reach an agreement by which Katz would retire with a pension from Dare. Shopmaker
first offered Katz $10,500 per year as a pension but Katz refused. Thereafter, while Katz was on
vacation, Shopmaker sent Katz a letter to demonstrate how Katz could actually wind up with
more take-home pay by retiring than he could by continuing as an employee. In the letter
Shopmaker proposed an annual pension payable by Dare of $13,000, added the Social Security
benefit which Katz and his wife would receive after retirement, and added $2,520 per year which
Katz could earn for part-time employment, but not necessarily from Dare, to demonstrate that
Katz would actually realize about $1,000 per year more in income by retiring with the Dare
pension over what he would realize if he continued his employment. Shopmaker testified that he
sent this letter in an effort to persuade Katz to retire.
Katz acceded to the offer of a pension of $13,000 per year for life, and on May 22, 1975, the
board of directors of Dare unanimously approved the following resolution:
WHEREAS, I. G. Katz has been a loyal employee of Danny Dare, Inc. and its predecessor
companies for more than 25 years; and,
WHEREAS, the said I. G. Katz has requested retirement because of failing health; and,
WHEREAS, it has been the custom in the past for the company to retire all executives having
loyally served the company for many years with a remuneration in keeping with the sum received
during their last five years of employment;
NOW THEN BE IT RESOLVED, That Danny Dare, Inc. pay to I. G. Katz the sum of $500.00
bi-weekly, or a total of $13,000.00 per year, so long as he shall live.
Katz retired on June 1, 1975, at age 67, and Dare began payment of the pension at the rate of
$500 every other week. Katz testified that he would not have retired without the pension and
relied on the promise of Dare to pay the pension when he made his decision to retire. Shopmaker
testified that at the time the board resolution was passed, the board intended for Katz to rely on
the resolution and to retire, but he said Katz would have been fired had he not elected to retire.
In the Fall of 1975, Katz began working for another company on 3 to 4 half-days per week. At
the end of that year Shopmaker asked Katz if he could do part-time work for Dare and Katz told
him he could work one-half day on Wednesdays. For the next two and one-half years Katz
continued to work for Dare one-half day per week.
In July, 1978, Dare sent a semi-monthly check for $250 instead of $500. Katz sent the check
back and stated he was entitled to the full $500. Thereafter Dare stopped sending any checks.
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Shopmaker testified that he cut off the checks to Katz because he felt Katz's health had improved
to the point that he could work, as demonstrated by the part-time job he held. Katz testified the
decrease was made after Shopmaker told him he would have to work one-half day for five days a
week for Dare or his pension would be cut in half. Katz testified, without challenge, that he was
not able to work 40 hours per week in 1978 at age 70.
The trial court entered a judgment in which some findings of fact were made. The court found
that Katz based his claim on the Doctrine of Promissory Estoppel as applied in Feinberg v.
Pfeiffer Company, 322 S.W.2d 163 (Mo. App.1959). The court found that Katz was not in the
same situation as Feinberg had been because Katz faced the prospect of being fired if he did not
accept the pension offer whereas there was no such evidence in the Feinberg case. The court
found the pension from Dare did not require Katz to do anything and he was in fact free to work
for another company. The court found Katz did not give up anything to which he was legally
entitled when he elected to retire. The court found that since Katz had the choice of accepting
retirement and a pension or being fired, that it could not be said that he suffered any detriment or
significant change of position when he elected to retire. The court further found that it could not
find any injustice resulting to Katz because by the time payments had been terminated, he had
received about $40,000 plus a paid vacation for his wife and himself to Hawaii. The court found
these were benefits he would not have received had he been fired.
Katz contends he falls within the holding in Feinberg and Dare contends that because Katz faced
the alternative of accepting the pension or being fired that he falls without the holding in
Feinberg.
At the outset it is interesting to note in view of the argument made by Dare that the court in
Feinberg stated: “It is clear from the evidence that there was no contract, oral or written, as to
plaintiff's length of employment, and that she was free to quit, and the defendant to discharge her,
at any time.” In Feinberg the board of directors passed a resolution offering Feinberg the
opportunity to retire at any time she would elect with retirement pay of $200 per month for life.
Feinberg retired about two and one-half years after the resolution was passed and began to
receive the retirement pay. The pay continued for about seven years when the company sent a
check for $100 per month, which Feinberg refused and thereafter payments were discontinued.
The court observed that Section 90 of the Restatement of the Law of Contracts had been adopted
by the Supreme Court in In Re Jamison's Estate. The court applied the Doctrine of Promissory
Estoppel, as articulated in § 90, and held that Feinberg had relied upon the promise of the
pension when she resigned a paying position and elected to accept a lesser amount in pension.
The court held it was immaterial as to whether Feinberg became unable to obtain other
employment before or after the company discontinued the pension payment. The court held the
reliance by Feinberg was in giving up her job in reliance on the promise of a pension. Her
subsequent disability went to the prevention of injustice which is part of the Doctrine of
Promissory Estoppel.
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There are three elements to be satisfied to invoke the Doctrine of Promissory Estoppel. These
are: (1) a promise; (2) a detrimental reliance on such promise; and (3) injustice can be avoided
only by enforcement of the promise.
This court is not convinced that the alternative Shopmaker gave to Katz of either accepting the
pension and retiring or be fired takes this case out of the operation of Promissory Estoppel. The
fact remains that Katz was not fired, but instead did voluntarily retire, but only after the board of
directors had adopted the resolution promising to pay Katz a pension of $13,000 per year for life.
Thus, the same facts are present in this case as were present in Feinberg. When Katz elected to
retire and give up earnings of about $23,000 per year to accept a pension of $13,000 per year, he
did so as a result of a promise made by Dare and to his detriment by the loss of $10,000 per year
in earnings. It is conceded Dare intended that Katz rely on its promise of a pension and Dare does
not contend Katz did not in fact rely on such promise. The fact that the payments continued for
about three years and that Katz at age 70 could not work full-time was unquestioned. Thus, the
element that injustice can be avoided only by enforcement of the promise is present, because
Katz cannot now engage in a full-time job to return to the earnings which he gave up in reliance
on the pension.
Dare's argument that the threat of being fired removes this case from the operation of Promissory
Estoppel is similar to an argument advanced in Trexler's Estate. In Trexler, the depression had
forced General Trexler to decide whether to fire several employees who had been with him for
many years or place them on a pension. The General decided to promise them a pension of $50
per month and at his death, the employees filed a claim against his estate for the continuation of
the payments. The court observed that the General could have summarily discharged the
employees, but was loath to do this without making some provision for their old age. The court
said it was clear that the General wanted to reduce overhead and at the same time wanted to give
these faithful employees some protection. The court stated it as an open question of what the
General would have done if the men had not accepted his offer of a lifetime pension. The court
said it would not speculate on that point but it was sufficient to observe that the men accepted the
offer and received the pension. The court applied § 90 of the Restatement and held that under the
Doctrine of Promissory Estoppel the estate was bound to continue the payments.
The facts in this case are strikingly similar to Trexler. Shopmaker undoubtedly wanted to reduce
his overhead by reducing the amount being paid to Katz and it is true that Katz could have been
summarily discharged. However, it is also true that Shopmaker refused to fire Katz, but instead
patiently negotiated for about 13 months to work out a pension which Katz did agree to accept
and voluntarily retired.
While Dare strenuously urges that the threat of firing effectively removed any legitimate choice
on the part of Katz, the facts do not bear this out. The fact is that Katz continued in his
employment with Dare until he retired and such retirement was voluntary on the part of Katz.
Had Shopmaker desired to terminate Katz without any promise of a pension he could have done
so and Katz would have had no recourse. However, the fact is that Shopmaker did not discharge
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Katz but actually made every effort to induce Katz to retire voluntarily on the promise of a
pension of $13,000 per year.
The test to be applied in this case is not whether Katz gave up something to which he was legally
entitled, but rather whether Dare made a promise to him on which he acted to his detriment. The
legally entitled test could never be met by an employee such as Katz or Feinberg because neither
could show any legal obligation on the company to promise a pension. The Doctrine of
Promissory Estoppel is designed to protect those to whom a promise is made which is not legally
enforceable until the requirements of the doctrine are met.
The trial court misapplied the law when it held that Katz was required to show that he gave up
something to which he was legally entitled before he could enforce the promise of a pension
made by Dare. The elements of Promissory Estoppel are present: a promise of a pension to Katz,
his detrimental reliance thereon, and injustice can only be avoided by enforcing that promise. The
judgment is reversed and the case is remanded with directions to enter judgment in favor of Katz
for the amount of unpaid pension.
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