Hill v. Mayers

802 P.2d 694, 104 Or. App. 629, 1990 Ore. App. LEXIS 1677

• Court: Court of Appeals of Oregon
• Decided: December 12, 1990
• Docket: 88-229-J-3; CA A60052
• Status: Published

Opinions

EDMONDS, J.

Plaintiff appeals¹ from a judgment after the trial court granted defendants’ motion for a directed verdict under ORCP 60. We affirm.

Plaintiff was looking for a house to purchase that could be converted to a bed and breakfast business. A real estate agent referred her to defendants Mayers. She argues that she purchased Mayers’ house in reliance on a promise that remodeling the house to meet her needs could be done for less than $7,500, but that the actual cost of remodeling was $36,810. She identifies her claim as a claim “for damages under a theory of promissory estoppel.” As we said in City of Ashland v. Hoffarth, 84 Or App 265, 270, 733 P2d 925, rev den 303 Or 483 (1987):

“There is no such animal. Promissory estoppel is a basis for enforcing a promise despite a lack of consideration when the promisee has relied on the promise to his detriment.”

Accordingly, her claim is for breach of contract, despite her erroneous label for it.

Plaintiffs evidence did not establish a promissory estoppel.² A promissory estoppel presupposes that there is no actual consideration; the estoppel becomes a substitute for consideration. Schafer et al v. Fraser et ux, 206 Or 446, 468, 290 P2d 190, 294 P2d 609 (1956). Restatement (Second) Contracts § 90 (1981), illustration 1, gives an example:

“1. A, knowing that B is going to college, promises B that A will give him $5,000 on completion of his course. B goes to college and borrows and spends more than $5,000 for college expenses. When he has nearly completed his course, A notifies him of an intention to revoke the promise. A’s promise is binding and B is entitled to payment on completion of the course without regard to whether his performance was ‘bargained for’ * *

Plaintiff submitted evidence that defendants offered to do the remodeling for $7,500 in order to induce her to purchase the house. If there was an offer, it invited acceptance by the performance of an act, and plaintiff s purchase created a contract with actual consideration. See Scott v. Francis, 104 Or App 39, 798 P2d 1111 (1990); see also Restatement (Second) Contracts, §§ 45, 62 (1981). Therefore, contrary to what the dissent asserts, there was evidence of actual consideration and not merely of promissory estoppel.

In an appeal from a judgment on a directed verdict, we view the evidence in the light most favorable to the losing party, and the judgment will be upheld only if there is no evidence to support the allegations or there is conflicting evidence that is capable of only one construction. City of Rogue River v. DeBoer, 288 Or 485, 488, 605 P2d 697 (1980). The evidence adduced by plaintiff would have created an issue of fact for the jury, if she had been suing for breach of a contract that was based on actual consideration. However, when a case has been heard on a particular theory in the trial court, on appeal the parties are restricted to the theory on which the case was tried. Millers Mut. Fire Ins. Co. v. Wildish Const. Co., 306 Or 102, 107, 758 P2d 836 (1988). Plaintiff did not allege or argue in the trial court that there was a contract based on actual consideration. As a result, the trial court did not err in granting defendants’ motion for directed verdict. See Bush v. Greyhound Lines, Inc., 295 Or 619, 623, 669 P2d 324 (1983).

Affirmed

1 The complaint alleged two claims. The jury returned a verdict for plaintiff on one. The other consisted of four alternative claims labeled fraud, quasi-contract, quantum meruit and “promissory estoppel.” The jury returned a verdict for defendants on the fraud count. The trial court granted defendants’ motion for directed verdict on the other three. Plaintiffs only assignment of error is about the claim labeled “promissory estoppel.”

2 The elements of promissory estoppel are: (1) a promise, (2) which the promisor, as a reasonable person, could foresee would induce conduct of the kind that occurred, (3) actual reliance on the promise and (4) a substantial change in position by the party seeking to enforce the promise. Bixler v. First National Bank, 49 Or App 195, 199, 619 P2d 895 (1980).