Alternate Theories of Recovery: Promissory Estoppel & Unjust Enrichment

• Author: Val Ricks
• Pages: 117-141

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Chapter 3. Alternate

Theories of Recovery:

Promissory Estoppel &

Unjust Enrichment

Lawyers representing plaintiffs wish to raise every argument supporting their

client’s case. I have filed simple contract cases resting on five or six different

theories of recovery, only one of which was grounded in a consensual contract

showing consideration. The forms of action—covenant, debt, and so on—have

been abolished, but because of developments over the centuries, it is still possible

to recover for breach of promise on several grounds. Now, however, unlike in the

medieval period, courts expect plaintiffs to raise every possible theory of recovery,

not pick one and stick with it. The same procedures—just general civil

procedures—now apply to the litigation of each.

This chapter provides materials for your study of the two most prominent

alternative theories. They are related to consensual contract in certain ways. For

instance, consensual contracts are founded on a bargain under the doctrine of

consideration. Promissory estoppel is akin to detriment consideration. Unjust

enrichment, like moral obligation, is akin to benefit consideration. Each of these

two alternate theories if proved is grounds for legal enforcement of a promise.

A. Promissory Estoppel

You recall that we almost discussed the effect of non-bargained-for detriment in the

first chapter. Some cases hinted at it. Now we return to it.

KIRKSEY v. KIRKSEY (1845)

Alabama Supreme Court

8 Ala. 131

[¶1] 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:

[¶2] 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,

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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 Talledega

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

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 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 he notified her to remove, and put her in a house,

not comfortable, in the woods, which he afterwards required her to leave.

[¶3] 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.

[¶4] ORMOND, J. 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, pursuant to the agreement of the parties.

Questions:

1. Why did the majority think that the promise was not enforceable?

2. How is this case different from Keyme v. Goulston?

3. If Antillico’s (actually Angelico’s) traveling from Marshall County with her 8+

children was not consideration, what was it? After all, Isaac requested it. A

relatively recent case quoted Samuel Williston on this issue:

The difference between a conditional gift and a contract has been famously

explained by Samuel Williston as follows: