by Henry F. Luepke, III¹

Introduction

In Missouri, an oral promise whose enforcement in an action for breach of contract is barred by the Statute of Frauds may nevertheless be enforced in a separate cause of action under the doctrine of promissory estoppel.² Under the doctrine of promissory estoppel, a party who has relied to his detriment upon another's promise may enforce that promise to the extent of his reliance.³

An action under the doctrine of promissory estoppel, however, will likely have to be tried in equity without a jury and will fail unless the plaintiff can demonstrate, among other things, the elusive element that "injustice" will result if the oral promise is not enforced.⁴ A promissory estoppel plaintiff also must overcome a formidable amount of judicial hostility to the doctrine and, even if successful, such a plaintiff may not recover the full benefit of his bargain. Damages, if any, will be limited to those sustained solely as a result of the plaintiff's reliance on the defendant's broken promise.⁵

This article addresses the law of promissory estoppel as it has developed in Missouri in the context of the Statute of Frauds. In particular, this article examines whether and to what extent the doctrine of promissory estoppel can be effective in overcoming a defense based upon the Statute of Frauds.

A Brief History

Promissory estoppel and the Statute of Frauds serve as counterweights to one another on the scales of justice, with the benefits of each intended to hold in check the potential evils of the other. Promissory estoppel, in fact, has developed in part as a response to the injustice perceived to result from a rigid application of the Statute of Frauds. Part of the story of promissory estoppel in Missouri, therefore, begins in England with the advent of the Statute of Frauds.

Notably, oral contracts generally were not "enforced by the king's courts" in early English common law.⁶ The common law's resistance toward oral contracts, however, softened with the development of the writ of assumpsit. With the expansion of this new writ, enforcement of oral promises became commonplace and could be obtained on the strength of oral testimony alone. Actions based upon oral promises, however, opened the door to perjury and fraudulent claims of breach of contract; and, as the opportunity for perjury grew with a mounting number of lawsuits, so did the concern that oral evidence of an agreement was inherently unreliable.⁷ In response to this concern, the English Parliament enacted the Statute of Frauds. Adopted in 1677, the Statute of Frauds states in its preamble that it is necessary for the "prevention of many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury."⁸

The Statute of Frauds in Missouri

Missouri adopted the Statute of Frauds in 1816,⁹ likewise for the purpose of "prevent[ing] fraud and perjury, which were so prevalent under the common law."¹⁰ Substantially tracking section 4 of the English version, Missouri's Statute of Frauds prohibits enforcement of five categories of oral contracts: 1) contracts of executors or administrators (i.e., personal representatives under the Probate Code); 2) contracts to answer for the debt, default, or miscarriage of another; 3) contracts in consideration of marriage; 4) contracts for the sale of real property or an interest in real property; and 5) contracts not to be performed within one year from the making thereof.¹¹ Like section 17 of the English statute, Missouri law includes, under the Uniform Commercial Code, a sixth category: 6) contracts for the sale of goods valued at $500 or more. ¹²

In deference to the legislative goals embodied in the Statute of Frauds, Missouri courts generally will not enforce at law any oral contract falling into one or more of these categories. Such contracts, if covered by the Statute of Frauds, may not be enforced at law even where the defendant admits that it has made an oral contract with the plaintiff.¹³

Equity Creates an Exception

Courts of equity have provided an exception to the Statute of Frauds. It has long been recognized that strict application of the statute can lead to harsh results. For instance, a party who, after being orally promised the family farm if he continues to work the farm for the next 30 years, may come to find at the end of that 30 years that the Statute of Frauds bars him from enforcing the promise.¹⁴ The Statute of Frauds will likewise bar a party from enforcing an oral promise of long-term employment, even after the party has moved to a new city and purchased a house in reliance upon the promise that a job would be waiting for her. A party who buys and stocks up on merchandise in reliance upon another's oral promise to purchase that merchandise may, because of the Statute of Frauds, have no remedy if the promise is broken. It has thus been observed that "the Statute of Frauds has furthered many more frauds than it has prevented."¹⁵

Missouri courts have endeavored to avoid the harsh effects of the statute by using their equitable powers to ensure that the statute is not used as an instrument that promotes the fraud it was intended to prevent. As the Supreme Court of Missouri has noted: "[T]he right of equitable intervention was grafted on the statute [of frauds] as an exception to prevent it from furthering fraud and perjury."¹⁶

The case law categorizes the exceptions to the Statute of Frauds under various names, including "part performance"¹⁷ or simply the equitable exception to the Statute of Frauds."¹⁸ The exception, however, has taken its most explicitly defined form under the name of "promissory estoppel."¹⁹

Promissory Estoppel in Missouri

"Promissory estoppel, is a form of equitable estoppel that arises from a representation made by a party which is reasonably relied upon by the other party who is injured as a result of the reliance."²⁰ Promissory estoppel differs from equitable estoppel. Traditionally, equitable estoppel involves represent-ations of fact that are untrue but upon which there has been reliance. By contrast, promissory estoppel involves statements of broken promises upon which the promisee has relied. Moreover, while equitable estoppel may be used only defensively as a shield, "precluding a party by reason of his conduct from asserting a right he otherwise would have had," promissory estoppel may be used offensively as a sword to enforce an otherwise unenforceable promise that "induces action or forbearance on the part of the promisee."²¹

Promissory estoppel developed in Missouri primarily not as an exception to the Statute of Frauds but as a rationale for enforcing a promise in the absence of bargained-for consideration, where doing so was necessary to avoid injustice.²² In 1932, the American Law Institute gave birth to the doctrine of promissory estoppel as an explicitly defined and separate doctrine in contract. As now defined in the Restatement (Second) Contracts, the doctrine of promissory estoppel is as follows:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.²³

Thus, a promisee who relies to his detriment upon the promisor's promise could, under certain circumstances, have the promise enforced by way of promissory estoppel even though the promisor received no consideration in exchange for his promise. In such a situation, the courts substitute the promisee's detrimental reliance for the element of consideration that otherwise would be necessary to make an enforceable contract. As Judge Learned Hand wrote with reference to this doctrine, "'promissory estoppel' is now a recognized species of consideration."²⁴

Section 90 of the Restatement has been adopted and applied in Missouri.²⁵

Using Promissory Estoppel to Circumvent the Statute of Frauds

Missouri courts have shown reluctance in expanding the use of promissory estoppel beyond the lack-of-consideration cases to cases in which promissory estoppel is invoked for the purpose of circumventing the Statute of Frauds. One court noted after reviewing the case law that "[t]here is an understandable concern that to completely embrace the doctrine [of promissory estoppel] would be to totally abrogate the Statute [of Frauds]."²⁶ In particular, Missouri courts consistently have rejected the use of promissory estoppel to enforce an oral contract of long-term employment, holding that the effect of any contrary ruling would be to "nullify" the statute.²⁷

Nevertheless, Missouri courts have ruled that promissory estoppel may be used to enforce oral contracts whose enforcement is otherwise prohibited by the Statute of Frauds.²⁸ The Restatement (Second) Contracts explicitly recognizes the use of promissory estoppel as a means of circumventing a defense based upon the Statute of Frauds.²⁹

Although promissory estoppel can be used as a vehicle to circumvent the Statute of Frauds, it is a doctrine that is not easily maneuvered and is more likely to collide with the statute than to circumvent it. Missouri courts, for instance, hold that promissory estoppel will be used "sparingly" and in "extreme" or extraordinary cases and "only to avoid unjust results."³⁰

Additionally, Missouri courts have distilled the provisions of § 90 of the Restatement into four elements and require a plaintiff who is proceeding on a theory of promissory estoppel to plead and prove each element. The elements are:

1) A promise;

2) Foreseeable reliance upon the promise;

3) Actual reliance upon the promise; and

4) Injustice absent enforcement of the promise.³¹

The task of proving all of these elements is daunting. Because the doctrine is based upon an estoppel, perhaps because it is an equitable principle, each element must be proven "by clear and convincing evidence."³² Moreover, in proving the first element, an oral promise, the plaintiff must show that the promise was "definite" and was "made in a contractual sense."³³ Also, the promise must be one that is inconsistent with later actions by the promisor or must be an action or promise that the promisor later denies.³⁴

The second and third elements require proof of reliance. The reliance must be foreseeable and, thus, reasonable: "[A] promisee seeking to enforce a promise under the doctrine of promissory estoppel must show that his or her reliance on the promise was reasonable."³⁵ In cases where the Statute of Frauds makes the oral promise unenforceable, one may logically question whether it is ever reasonable for a promisee to rely upon an unenforceable promise. If so, when would reliance upon an unenforceable promise ever be reasonable? No Missouri court has addressed this issue.

The most elusive element of promissory estoppel is the fourth one, the requirement that injustice can be avoided only by enforcing the promise. With trenchant understatement, Missouri courts have noted that "[t]his element is not cast with precision."³⁶ "The authorities are not in accord on whether the promisee's reliance must be detrimental in the consideration sense or whether the reliance must be injurious to the promisee. It would seem that injury is what is required, because without injury there would be no injustice in not enforcing the promise."³⁷ Thus, the Supreme Court of Missouri has explained that merely suffering the consequences of another's non-performance of his oral promise is not the type of injustice that will prompt courts to apply an estoppel. The Court stated that the "injustice" required to overcome the Statute of Frauds:

is of necessity something more than the failure of one to live up to his oral agreement. It may be morally reprehensible and wrong for one to refuse to do what he said he would do. So, in one sense, there is always some injustice resulting from a violation of a moral obligation, especially when such results in loss to one of the parties of the benefits of his oral bargain. . . . Thus, we say this gross injustice or "virtual fraud" of which we speak must be something more and of different kind than the injustice which usually arises from the loss of [the benefit of one's bargain].³⁸

In addition to these broad parameters, trial courts charged with the task of determining whether "injustice" would result absent enforcement of an oral promise are directed to weigh a host of factors suggested by the Restatement. The factors to be considered are as follows:

(a) the availability and adequacy of other remedies, particularly cancellation and restitution;

(b) the definite and substantial character of the action or forbearance in relation to the remedy sought;

(c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;

(d) the reasonableness of the action or forbearance;

(e) the extent to which the action or forbearance was foreseeable by the promisor.³⁹

No one factor is necessarily afforded greater weight than any of the others. Nor is this list exclusive of any other factors. Rather, according to the Restatement, the principle is designed to be a "flexible" one.⁴⁰

Does a Judge or Jury Decide?

A review of these factors, as well as of all the elements of promissory estoppel, raises the question of who weighs these factors and makes the decision of what constitutes an injustice. Who decides whether promissory estoppel is to be applied, a judge or a jury? If the elements of promissory estoppel are to be submitted to a jury, what form is the submission to take? How should a court instruct a jury on a claim of promissory estoppel? No Missouri appellate court has decided these issues.⁴¹

The history and nature of promissory estoppel strongly suggest that it carries with it no right to a jury trial. Missouri courts categorically hold that "[p]romissory estoppel . . . is a form of equitable relief."⁴² As a form of equitable relief, promissory estoppel can be applied only when no other remedy is available at law.⁴³ The right to a jury trial exists only at law.⁴⁴ Therefore, it follows that a promissory estoppel plaintiff has no right to submit the claim to a jury. Courts in other jurisdictions have so held.⁴⁵ A jury is particularly unwarranted in cases where the doctrine of promissory estoppel has been invoked to overcome a defense based upon the Statute of Frauds, because it is in such cases that the doctrine's equitable character becomes especially evident.⁴⁶

What is the Remedy?

The equitable nature of a claim of promissory estoppel, and the propriety of trial by judge rather than jury, is also apparent in the remedies afforded under the doctrine. The Restatement provides that "[t]he remedy [under a theory of promissory estoppel] granted for breach [of a promise] may be limited as justice requires."⁴⁷ In particular, the remedy must be tailored so as to ensure that it does not defeat the purposes of the Statute of Frauds.⁴⁸ Missouri law holds that "[t]he purpose of the Statute of Frauds is to prevent the enforcement of alleged promises that were never made; it is not, and never has been, to justify the contractors in repudiating promises that were in fact made."⁴⁹ It would seem, therefore, that application of the doctrine of promissory estoppel and its remedies would not defeat the purposes of the Statute of Frauds whenever it is clear that the alleged promise was, in fact, made.

In deference to the Statute of Frauds, however, Missouri courts generally refuse to allow a promissory estoppel plaintiff the full benefit of his bargain, instead limiting recovery to restitution or the damages resulting from the plaintiff's reliance.⁵⁰In only a very few cases have the courts granted specific performance of the oral promise.⁵¹ By limiting in this fashion the remedy for a claim of promissory estoppel, the presence and effect of the statute is felt even in those cases in which the promissory estoppel plaintiff has fully satisfied his difficult burden of proof.

Conclusion

The English Parliament repealed the Statute of Frauds in 1954,⁵² apparently concluding, as have some in Missouri, that it has done more harm than good. Nevertheless, the Statute of Frauds remains alive and well in Missouri.

Missouri courts have sought to combat the sometimes harsh effects of the statute by making available various equitable exceptions, the most developed of which is the doctrine of promissory estoppel. Missouri courts, however, are very reluctant to allow broad use of this doctrine for fear that it will become the exception that swallows the rule, in effect completely abrogating the Statute of Frauds. As a result, a claim of promissory estoppel may circumvent the Statute of Frauds in extreme cases only after clear and convincing proof in a court of equity that there was an oral promise upon which the promisee reasonably relied to his detriment. The proof must also show that injustice, sometimes referred to as a virtual fraud, can be avoided only by enforcing the promise. Even assuming the promissory estoppel plaintiff can meet this burden of proof, he will not recover the full benefit of his bargain. His remedy, rather, will be limited to restitution in the amount of his reliance damages.

Thus, in Missouri, the Statute of Frauds stands as a potent defense to a claim based upon an oral promise falling within its provisions. The doctrine of promissory estoppel is available in Missouri to overcome some of the harsh effects of the statute, but, in view of judicial aversion to the doctrine and the difficulty of proving its elements, promissory estoppel will seldom be effective in avoiding the Statute of Frauds.

Endnotes

¹ Henry Luepke is a partner at the Stolar Partnership, where he has worked since 1991. He received his J.D. from St. Louis University School of Law in 1991.

² Davis v. Nelson, 880 S.W.2d 658, 666 (Mo. App. E.D. 1994) ("Missouri recognizes several exceptions [to the statute of frauds], one of which is promissory estoppel."); Chesus v. Watts, 967 S.W.2d 97, 106 n. 4 (Mo. App. W.D.1998).

³ Id.

⁴ Id. at 667.

⁵ Midwest Energy v. Orion Food Sys., 14 S.W.3d 154 (Mo. App. E.D. 2000).

⁶ 4 Caroline N. Brown, Corbin on Contracts § 12.1 (Rev. ed. 1997).

⁷ Id.

⁸ Id. See note 17.

Section 4 provided: "And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June no action shall be brought whereby to charge any executor or administrator upon any special promise, to answer damages out of his estate; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; (3) or to charge any person upon any agreement made upon consideration of marriage; (4) or upon any contract [f]or sale of lands, tenements or hereditaments, or any interest in or concerning them; (5) or upon any agreement that is not to be performed within the space of one year from the making thereof; (6) unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized."

Section 17 provided: "And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June no contract for the sale of any goods, wares and merchandizes, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."

⁹ Territorial Laws of Mo. 1804-1816 p. 439, § 1; Long v. Stapp, 49 Mo. 506, 509 (1872). Missouri did not enact the equivalent of section 17 of the English statute until 1825. Burrell v. Highleyman, 33 Mo. App. 183, 192 (1888) (Thompson, J. dissenting).

¹⁰ Reigart v. Manufacturers' Coal & Coke Co., 117 S.W. 61, 62 (Mo. banc 1908).

¹¹ Section 432.010, RSMo 2000. This section provides:

No action shall be brought to charge any executor or administrator, upon any special promise to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consideration of marriage, or upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.

¹² Section 400.2-201, RSMo 2000. This section provides, in part:

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.

¹³ See e.g., Shaffer v. Hines, 573 S.W.2d 420, 422 (Mo. App. E.D. 1978) ("When the statute [of frauds] is applicable an oral contract for the conveyance of real property cannot be enforced. The party against whom the contract is sought to be enforced may admit the oral contract and still interpose the defense of the Statute of Frauds.")

¹⁴ See Straatmann v. Straatmann, 809 S.W.2d 95 (Mo. App. E.D. 1991).

¹⁵ Midwest Energy, 14 S.W.3d at 157, n. 3.

¹⁶ Sportsman v. Halstead, 147 S.W.2d 447, 454 (Mo. 1941); see also, 4 Caroline N. Brown, Corbin on Contracts § 12.8 (Rev. ed. 1997) ("It is understandable that courts are reluctant to thwart what is perceived as statutory policy, but it should be remembered that the statute of frauds' application has been circumscribed by its purpose and subjected to equitable judicial limitation whenever appropriate since its inception.")

¹⁷ Jones v. Linder, 247 S.W.2d 817, 820 (Mo. 1952); Sappington v. Miller, 821 S.W.2d 901, 903-04 (Mo. App. W.D. 1992) ("[D]espite the strict terms of the Statute of Frauds, equity will enforce an oral contract to convey real estate where one party has partially performed or has done other acts in reliance on such contract, and thereby has changed his position so materially that to invoke the statute to deny the performer the benefit of the agreement would itself amount to a fraud."); Ahrens v. Dodd, 863 S.W.2d 611, 614 (Mo. App. E.D. 1992) (same).

¹⁸ In re the Estate of Conkle, 982 S.W.2d 312, 316 (Mo. App. S.D. 1998) ("Although the Statute of Frauds ordinarily bars enforcement of an oral contract to convey land, equity may, in some circumstances, require performance of such an agreement to prevent a fraud."); Straatmann, 809 S.W.2d at 98 ("[O]ral contract to convey land . . . falls squarely within the statute of frauds, and will not be enforced at law. However, upon clear and convincing proof of the existence of such a contract, equity will provide specific performance where a party has acted to such an extent upon the promise that to deny him the benefit of the agreement would be unjust.")

¹⁹ Compare Jones, 247 S.W.2d at 820 (discussing exception to statute of frauds) to Geisinger v. A & B Farms, Inc., 820 S.W.2d 96, 98 (Mo. App. W.D. 1991) (discussing requirements for application of promissory estoppel).

²⁰ Zipper v. Health Midwest, 978 S.W.2d 398, 411 (Mo. App. W.D. 1998).

²¹ Longmier v. Kaufman, 663 S.W.2d 385, 389 (Mo. App. E.D. 1983).

²² See e.g., Underwood Typewriter Co. v. Century Realty Co., 119 S.W. 400, 401 (Mo. 1909) (where tenant relied to its detriment upon landlord's promise to consent to assignment of lease, tenant's detrimental reliance satisfied element of consideration and court enforced landlord's promise); Katz v. Danny Dare, Inc., 610 S.W.2d 121 (Mo. App. W.D. 1980) (doctrine of promissory estoppel was used to permit former employee to recover lifetime pension promised to her on the condition that she retire).

²³ Restatement (Second) § 90 (1981).

²⁴ Porter v. Commissioner of Internal Revenue, 60 F.2d 673, 675 (2nd Cir. 1932).

²⁵ In re Jamison's Estate, 202 S.W.2d 879, 886-87 (Mo. 1947). A Missouri appellate court first permitted recovery under the doctrine of promissory estoppel as enunciated in section 90 of the Restatement (Second) in Feinberg v. Pfeiffer Co., 322 S.W.2d 163, 168 (Mo. App. E.D. 1959); see also, Delmo, Inc. v. Maxima Elec. Sales, Inc., 878 S.W.2d 499, 504, n. 7 (Mo. App. S.D. 1994).

²⁶ Geisinger v. A & B Farms, Inc., 820 S.W.2d 96, 99 (Mo. App. W.D. 1991).

²⁷ See e.g., Mayer v. King Cola Mid-America, Inc., 660 S.W.2d 746 (Mo. App. E.D. 1983); Morsinkhoff v. De Luxe Laundry & Dry Cleaning Co., 344 S.W.2d 639, 644 (Mo. App. W.D. 1961) ("It is plaintiff's position that defendant's promise of employment, which plaintiff relied upon and acted upon to his detriment, reanimated an unenforceable agreement, because such promise created an estoppel to deny the contract. He testified the contract was for one year. Action on such a contract is precluded because of the Statute of Frauds. To allow recovery on the theory of promissory estoppel would abrogate the purpose and intent of the legislature in enacting the Statute of Frauds and would nullify its fundamental requirements.")

²⁸ See Davis v. Nelson, 880 S.W.2d 658, 666 (Mo. App. E.D. 1994) ("Missouri recognizes several exceptions [to the statute of frauds], one of which is promissory estoppel."); Chesus, 967 S.W.2d at 106 n. 4 ("While the statute of frauds can preclude the use of promissory estoppel in cases where the doctrine would circumvent the goal of the Statute of Frauds, it will be ignored to prevent an unjust result.")

²⁹ Restatement (Second) Contracts § 139 (1981). ("A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee . . . and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise.")

³⁰ See Midwest Energy, Inc., 14 S.W.3d at 165 (Crahan, J. dissenting) ("Application of the doctrine of promissory estoppel is to be used with caution, sparingly and only in extreme cases to avoid unjust results."); Meinhold v. Huang, 687 S.W.2d 596, 599 (Mo. App. E.D. 1995) ("The doctrine of promissory estoppel has been resorted to in Missouri in extreme cases and only to avoid unjust results."); In re Huffman, 171 Bankr. 649, 655 (Bankr. W.D. Mo. 1994) (applying Missouri law) ("There are a few Missouri cases that have allowed recovery pursuant to the promissory estoppel theory, but the Missouri courts are reluctant to abrogate the Statute of Frauds except in the most extraordinary situations.")

³¹ Midwest Energy, Inc. v. Orion Food Sys., Inc., 14 S.W.3d 154, 159 (Mo. App. E.D. 2000); Delmo, Inc. v. Maxima Elec. Sales, Inc., 878 S.W.2d 499, 504-05 (Mo. App. S.D. 1994).

³² Zipper, 978 S.W.2d at 411 ("each element must clearly appear"); Jerry Anderson & Assocs., Inc. v. Gaylan Indus., Inc., 805 S.W.2d 733, 735-36 (Mo. App. W.D. 1991) ("A party claiming estoppel carries the burden of proving his claim by clear and convincing evidence") (discussing equitable estoppel).

³³ Prenger v. Baumhoer, 939 S.W.2d 23, 26 (Mo. App. W.D. 1997); Clark v. Washington Univ., 906 S.W.2d 789, 792 (Mo. App. E.D. 1995).

³⁴ Resnik v. Blue Cross and Blue Shield of Mo., 912 S.W.2d 567, 573 (Mo. App. E.D. 1995).

³⁵ Delmo, Inc., 878 S.W.2d at 505.

³⁶ Midwest Energy, Inc., 14 S.W.3d at 161.

³⁷ John D. Calamari & Joseph M. Perillo, Contracts 273 (3rd ed. 1987).

³⁸ Jones v. Linder, 247 S.W.2d 817, 819-20 (Mo. 1952).

³⁹ Davis, 880 S.W.2d at 667; Restatement (Second) Contracts § 139 (1981).

⁴⁰ Restatement (Second) § 139 (1981). See comment b on page 355.

⁴¹ Midwest Energy, Inc. v. Orion Foods Sys., Inc., 14 S.W.3d at 158 ("We have found no case . . . which rules the issue of availability of trial by jury in an action at law [for promissory estoppel].") The Orion court did not address the issue because it was not briefed by the parties. See also, Meinhold v. Huang, 687 S.W.2d 596, 600 n. 1 (Mo. App. E.D. 1985) ("here, no question was raised concerning the propriety of submission of a jury instruction based upon the elements of promissory estoppel. But see C&K Engineering v. Amber Steel Co., 23 Cal.3d 1, 151 Cal.Rptr. 323, 587 P.2d 1136 (1978) holding promissory estoppel remedy to be an equitable remedy not warranting trial by jury."

⁴² Zipper, 978 S.W.2d at 411.

⁴³ Id.

⁴⁴ State ex rel. Willman v. Sloan, 574 S.W.2d 421, 422 (Mo. banc 1978) ("However, there is no right to trial by jury in a case in equity. Thus, . . . [the] right to a jury depends on whether the cause is tried at law or in equity.")

⁴⁵ Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 826 (2nd Cir. 1994) ("Accordingly, we hold that Merex's claim [of promissory estoppel] is properly regarded as equitable rather than legal and, consequently, that Merex was not entitled to a jury trial on its claim for promissory estoppel."); Nimrod Marketing (Overseas) Ltd. v. Texas Energy Inv. Corp., 769 F.2d 1076, 1080 (5th Cir. 1985) ("Promissory estoppel is an equitable form of action in which equitable rights alone are recognized. ... Defendants had no right to trial by jury. . . .")

⁴⁶ Merex , 29 F.3d at 826 ("when the plaintiff uses promissory estoppel to avoid a draconian application of the Statute of Frauds, the pull of equity becomes irresistible.")

⁴⁷ Restatement (Second) Contracts, § 90 (1981).

⁴⁸ Chesus, 967 S.W.2d at 106 n. 4.

⁴⁹ Sedmak v. Charlie's Chevrolet, Inc., 622 S.W.2d 694, 699 (Mo. App. E.D. 1981) (quoting, Arthur Linton Corbin, The Uniform Commercial Code-Sales; Should It Be Enacted?, 59 Yale L.J. 821, 829 (1950).

⁵⁰ Midwest Energy, Inc., 14 S.W.3d at 160 ("Damages [for promissory estoppel] are measured by the reliance and should be limited to those naturally flowing from the reliance."); Mahoney v. Delaware McDonald's Corp., 770 F.2d 123, 127 (8th Cir. 1985) (applying Missouri law) ("Under the doctrine of promissory estoppel, damages may be measured by the extent of the promisee's reliance.")

⁵¹ See Sappington v. Miller, 821 S.W.2d 901, 903-04 (Mo. App. W.D. 1992) ("However, despite the strict terms of the Statute of Frauds, equity will enforce an oral contract to convey real estate where one has partially performed or has done other acts in reliance on such contract, and thereby has changed his position so materially that to invoke the statute to deny the performer the benefit of the agreement would itself amount to a fraud.")

⁵² 4 Caroline N. Brown, Corbin on Contracts § 12.1 (Rev. ed 1997) ("The English Parliament ... repealed most of the provisions of sections 4 and 17 in 1954, with no discernible adverse effects.")