125 N.E. 94 (N.Y. 1919)

Dougherty v. Salt

New York Court of Appeals

November 18, 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 *Page 202 you make out a note for me?' I said, `Yes, if you wish me to,' and she said, `Well, I 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 (Strickland v. Henry, 175 N.Y. 372). 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 unenforcible promise of an executory gift (Harris v. Clark, 3 N.Y. 93; Holmes v. Roper,141 N.Y. 64, 66). This child of eight was not a creditor, nor dealt with as one. The aunt was not paying a debt. She was conferring a bounty (Fink v. Cox, 18 Johns. 145). The promise was neither offered nor accepted with any other purpose. "Nothing is consideration that is not regarded as such by both parties" (Philpot v. Gruninger, 14 Wall. 570, 577; Fire Ins. Assn. v. Wickham, 141 U.S. 564, 579; Wisconsin M. Ry. Co. v.Powers, 191 U.S. 379, 386; DeCicco v. Schweizer, 221 N.Y. 431,438). A note so given is not made for "value received," however its maker may have *Page 203 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 (Blanshan v. Russell, 32 A.D. 103; affd., on opinion below, 161 N.Y. 629; Kramer v. Kramer,181 N.Y. 477; Bruyn v. Russell, 52 Hun, 17). The plaintiff, through his own witness, has explained the genesis of the promise, and consideration has been disproved (Neg. Instr. Law, sec. 54; Consol. Laws, chap. 43).

We hold, therefore, that the verdict of the jury was contrary to law, and that the trial judge was right in setting it aside. He went too far, however, in dismissing the complaint. He might have dismissed it if he had reserved his ruling on the defendant's motion for a nonsuit or for the direction of a verdict (Code Civ. Pro. secs. 1185, 1187). Instead of reserving his ruling, he denied the motion absolutely. Upon the return of the verdict, he should have granted a new trial.

A new trial was also necessary because of error in rejecting evidence. The defendant attempted to prove that the signature to the note was forged. The court refused to hear the evidence, because forgery had not been pleaded as a defense. The answer did deny the execution of the note. The evidence of forgery was admissible under the denial (Schwarz v. Oppold, 74 N.Y. 307;Farmers' L. T. Co. v. Siefke, 144 N.Y. 354).

The judgment of the Appellate Division should be reversed, and the judgment of the Trial Term modified by granting a new trial, and as modified affirmed, with costs in all courts to abide the event.

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CRANE and ANDREWS, JJ., concur.

Judgment accordingly.

R. Scott Cunningham, Dalton, for Wright.

Dianne Cook, Dalton, Michael J. Bowers, Atty. Gen., Kevin M. O'Connor, Asst. Atty. Gen., Department of Law, Atlanta, for Newman et al.

CARLEY, Justice.

Seeking to recover child support for her daughter and her son, Kim Newman filed suit against Bruce Wright. Wright's answer admitted his paternity only as to Newman's daughter and DNA testing subsequently showed that he is not the father of her son. The trial court nevertheless ordered Wright to pay child support for both children. As to Newman's son, the trial court based its order upon Wright's "actions in having himself listed on the child's birth certificate, giving the child his surname and establishing a parent-child relationship...." According to the trial court, Wright had thereby

allow[ed] the child to consider him his father and in so doing deterr[ed Newman] from seeking to establish the paternity of the child's natural father[,] thus denying the child an opportunity to establish a parent-child relationship with the natural father.

We granted Wright's application for a discretionary appeal so as to review the trial court's order requiring that he pay child support for Newman's son.

Wright does not contest the trial court's factual findings. He asserts only that the trial court erred in its legal conclusion that the facts authorized the imposition of an obligation to provide support for Newman's son. If Wright were the natural father of Newman's son, he would be legally obligated to provide support. OCGA § 19-7-2. Likewise, if Wright had formally adopted Newman's son, he would be legally obligated to provide support. OCGA § 19-8-19(a)(2). However, Wright is neither the natural nor the formally adoptive father of the child and "the theory of `virtual adoption' is not applicable to a dispute as to who is legally responsible for the support of minor children." Ellison v. Thompson, 240 Ga. 594, 596, 242 S.E.2d 95 (1978).

Although Wright is neither the natural nor the formally adoptive father of Newman's son and the theory of "virtual adoption" is inapplicable, it does not necessarily follow that, as a matter of law, he has no legal obligation for child support. A number of jurisdictions have recognized that a legally enforceable obligation to provide child support can be "based upon parentage or contract...." (Emphasis supplied.) Albert v. Albert, 415 So. 2d 818, 819 (Fla.App.1982). See also Anno., 90 A.L.R. 2d 583 (1963). Georgia is included among those jurisdictions. Foltz v. Foltz, 238 Ga. 193, 194, 232 S.E.2d 66 (1977). Accordingly, the issue for resolution is whether Wright can be held liable for child support for Newman's son under this state's contract law.

There was no formal written contract whereby Wright agreed to support Newman's son. Compare Foltz v. Foltz, supra. Nevertheless, under this state's contract law,

[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. The remedy granted for breach may be limited as justice requires.

OCGA § 13-3-44(a). This statute codifies the principle of promissory estoppel. Insilco Corp. v. First Nat. Bank of Dalton, 248 Ga. 322(1), 283 S.E.2d 262(1981). In accordance with that principle,

"[a] party may enter into a contract invalid and unenforceable, and by reason of the covenants therein contained and promises made in connection with the same, wrongfully cause the opposite party to forego a valuable legal right to his detriment, and in this manner by his conduct waive the right to repudiate the contract and become estopped to deny the opposite party any benefits that may accrue to him under the terms of the agreement." [Cits.]

Pepsi Cola Bottling Co. of Dothan, Ala., Inc. v. First Nat. Bank of Columbus, 248 Ga. 114, 116-117(2), 281 S.E.2d 579 (1981).

The evidence authorizes the finding that Wright promised both Newman and her son that he would assume all of the obligations and responsibilities of fatherhood, including that of providing support. As the trial court found, this promise was evidenced by Wright's listing of himself as the father on the child's birth certificate and giving the child his last name. Wright is presumed to know "the legal consequences of his actions. Since parents are legally obligated to support their minor children, [he] accepted this support obligation by acknowledging paternity." Marshall v. Marshall, 386 So. 2d 11, 12 (Fla. App.1980). There is no dispute that, at the time he made his commitment, Wright knew that he was not the natural father of the child. Compare NPA v. WBA, 8 Va.App. 246, 380 S.E.2d 178 (1989). Thus, he undertook his commitment knowingly and voluntarily. Moreover, he continued to do so for some 10 years, holding himself out to others as the father of the child and allowing the child to consider him to be the natural father.

The evidence further authorizes the finding that Newman and her son relied upon Wright's promise to their detriment. As the trial court found, Newman refrained from identifying and seeking support from the child's natural father. Had Newman not refrained from doing so, she might now have a source of financial support for the child and the child might now have a natural father who provided emotional, as well as financial, support. If, after 10 years of honoring his voluntary commitment, Wright were now allowed to evade the consequences of his promise, an injustice to Newman and her son would result. Under the evidence, the duty to support which Wright voluntarily assumed 10 years ago remains enforceable under the contractual doctrine of promissory estoppel and the trial court's order which compels Wright to discharge that obligation must be affirmed. See Nygard v. Nygard, 156 Mich. App. 94, 401 N.W.2d 323 (1986); Marshall v. Marshall, supra; In re Marriage of Johnson, 88 Cal. App. 3d 848, 152 Cal. Rptr. 121 (1979); Hartford v. Hartford, 53 Ohio App. 2d 79, 7 O.O.3d 53, 371 N.E.2d 591 (1977).

Judgment affirmed.

All the Justices concur, except BENHAM, C.J., who dissents.

SEARS, Justice, concurring.

I concur fully with the majority opinion. I write separately only to address the dissenting opinion's misperception that Newman has not relied upon Wright's promise to her detriment.

It is an established principle in Georgia that 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.^[1] This doctrine, known as "promissory estoppel," prevents a promisor from reneging on a promise, when the promisor should have expected that the promisee would rely upon the promise, and the promisee does in fact rely upon the promise to her detriment.^[2] Sufficient consideration to enforce a contractual promise pursuant to promissory estoppel may be found in any benefit accruing to the promisor, or any reliance, loss, trouble, disadvantage, or charge imposed upon the promisee.^[3]

Bearing these principles in mind, and as explained very well in the majority opinion, it is clear that Wright's commitment to Newman to assume the obligations of fatherhood as regards her son are enforceable. Specifically, it is abundantly clear that Wright should have known that Newman would rely upon his promise, especially after he undertook for ten years to fulfill the obligations of fatherhood. In this regard, it could hardly have escaped Wright's notice that Newman refrained from seeking to identify and obtain support from the child's biological father while Wright was fulfilling his commitment to her. Moreover, Newman did in fact rely upon Wright's promise, to her detriment when, ten years after he undertook the obligations of fatherhood, Wright reneged on his promise.

Promissory estoppel requires only that the reliance by the injured party be reasonable.^[4] In this case, it cannot seriously be argued that Newman's reliance was anything other than reasonable, as she had absolutely no indication that Wright would ever renege, especially after he fulfilled his promise for such a long time. Moreover, contrary to the dissent's implicit assertion, promissory estoppel does not require that the injured party exhaust all other possible means of obtaining the benefit of the promise from any and all sources before being able to enforce the promise against the promisor. In this regard, it is illogical to argue that Newman, after reasonably relying upon Wright's promise for ten years, can now simply seek to determine the identity of the biological father and collect support from him. First, there is nothing in the case law that requires Newman to do so before being entitled to have Wright's promise enforced. Second, this requirement would be an imposing, if not an impossible, burden, and would require Newman not only to identify the father (if possible), but also to locate him, bring a costly legal action against him, and to succeed in that action. Imposing this requirement would effectively penalize Newman for no reasons other than (1) her reasonable reliance upon a promise that was not kept, and (2) for allowing herself to be dissuaded by Wright from seeking the identity of the biological father. As noted, nowhere does the case law support imposing such a requirement, and none of the facts in this case support doing so now.

Finally, there can be no doubt that, unless Wright's promise to Newman is enforced, injustice will result. Given the approximately ten years that have passed since the child's birth, during which time Wright, for all purposes, was the child's father, it likely will be impossible for Newman to establish the identity of the child's biological father, bring a successful paternity action, and obtain support from that individual. Consequently, if Wright is allowed to renege on his obligation, Newman likely will not receive any support to assist in the cost of raising her son, despite having been promised the receipt of such by Wright. Furthermore, an even greater injustice will be inflicted upon the boy himself. A child who has been told by any adult, regardless of the existence of a biological relationship, that he will always be able to depend upon the adult for parenting and sustenance, will suffer a great deal when that commitment is broken. And when a child suffers under those circumstances, society-at-large suffers as well.^[5]

Because Wright's promise is capable of being enforced under the law, and because I believe that Wright's promise must be enforced in order to prevent a grave miscarriage of justice, I concur fully in the majority opinion.

BENHAM, Chief Justice, dissenting.

I respectfully dissent. While I agree with the majority opinion's statement that liability for child support may be based on promissory estoppel in a case where there is no statutory obligation or express contract, I first note that this issue was not brought by either of the parties. Further, there is a critical element that must be shown for promissory estoppel to apply. In addition to making a showing of expectation and reasonable reliance, a person asserting liability on the theory of promissory estoppel must show that she relied on the promise to her detriment. Nickell v. IAG Federal Credit Union, 213 Ga.App. 516, 445 S.E.2d 335 (1994); Lake Tightsqueeze, Inc. v. Chrysler First Financial Services Corp., 210 Ga.App. 178, 435 S.E.2d 486 (1993). The majority states that Newman and her son incurred detriment by refraining from identifying and seeking support from the child's natural father. However, the record is completely bereft of any evidence that Newman met her burden of proof as to promissory estoppel, and the majority fails to state how she is prevented from now instituting a child support action against the natural father. Newman has not alleged, nor does the record reveal, that she does not know the identity of the natural father, nor does she show that the natural father is dead or unable to be found. Consequently, Newman has not shown that she is now unable to do what she would have had to do ten years ago—seek support from the natural father.

In fact, Wright contends, and Newman does not refute, that Newman severed the relationship and all ties with Wright when the child was approximately three years old. For approximately the next five years, until the child was eight, Newman and Wright did not communicate. Only for the past two years has Wright visited with the child. Importantly, Wright contends that during the past seven years he did not support the child. Thus, taking Wright's undisputed contentions as true, any prejudice incurred by Newman because of the passage of ten years in time is not due to Wright's actions, since, at least for the past seven years, Newman has been in the same situation—receiving no support payments from Wright. Thus, although Wright may be morally obligated to support the ten-year-old child, he is not legally obligated to do so because Newman has failed to show that she or the child incurred any detriment by Wright's failure to fulfill his promise made ten years ago.

For the foregoing reasons, I dissent.

NOTES

[1] OCGA § 13-3-44; Insilco Corp. v. First Nat'l Bank of Dalton, 248 Ga. 322, 322-23, 283 S.E.2d 262 (1981); see Pepsi Cola Bottling Co. v. First Nat'l Bank of Columbus, 248 Ga. 114, 116, 281 S.E.2d 579 (1981); Restatement (Second) of Contracts, § 90 (1981 and Supp.1992).

[2] Doll v. Grand Union Co., 925 F.2d 1363, 1371 (11th Cir.1991).

[3] Pepsi Cola Bottling Co., 248 Ga. at 116, 281 S.E.2d 579; see Zachos v. C & S Nat. Bank, 213 Ga. 619, 624, 100 S.E.2d 418 (1957); Folks, Inc. v. Dobbs, 181 Ga.App. 311, 352 S.E.2d 212 (1986).

[4] Fidelity & Deposit Co. v. West Point Construction Co., 178 Ga.App. 578, 344 S.E.2d 268 (1986); see Doll, supra.

[5] Wright is also morally obligated to provide support for Newman's son. Merely because an obligation may not be capable of legal enforcement, one is not necessarily free to act in any way that he might choose. In addition to our legal duties, we are also bound by a consciousness of duty that is based upon fundamental values such as honor, truth, and responsibility. The "non-legal" obligations that we undertake are no less sacrosanct merely because they may not be capable of legal enforcement. The moral (as opposed to the legal) dilemma faced by Wright lies within his conscience, heart, and soul. He need have looked no further than there to determine what he must do in this case.

1092Keven A. McKenna, Cheryl A. Asquino, Providence, for plaintiff.

DeSimone & Del Sesto, Herbert F. DeSimone, Ronald W. Del Sesto, Providence, for defendant.

OPINION

SHEA, Justice.

The defendant employer, Plantations Steel Company (Plantations), appeals from a Superior Court judgment for the plaintiff employee, Edward J. Hayes (Hayes). The trial justice, sitting without a jury, found that Plantations was obligated to Hayes on the basis of an implied-in-fact contract to pay him a yearly pension of $5,000. The award covered three years in which payment had not been made. The trial justice ruled, also, that Hayes had made a sufficient showing of detrimental reliance upon Plantations's promise to pay to give rise to its obligation based on the theory of promissory estoppel. The trial justice, however, found in part for Plantations in ruling that the payments to Hayes were not governed by the Employee Retirement Income Security Act, 29 U.S.C.A. §§ 1001-1461 (West 1975), and consequently he was not entitled to attorney's fees under § 1132(g) of that act. Both parties have appealed.

We reverse the findings of the trial justice regarding Plantations's contractual obligation to pay Hayes a pension. Consequently we need not deal with the cross-appeal concerning the award of attorney's fees under the federal statute.

Plantations is a closely held Rhode Island corporation engaged in the manufacture of steel reinforcing rods for use in concrete construction. The company was founded by Hugo R. Mainelli, Sr., and Alexander A. DiMartino. A dispute between their two families in 1976 and 1977 left the DiMartinos in full control of the corporation. Hayes was an employee of the corporation from 1947 until his retirement in 1972 at age of sixty-five. He began with Plantations as an "estimator and draftsman" and ended his career as general manager, a position of considerable responsibility. Starting in January 1973 and continuing until January 1976, Hayes received the annual sum of $5,000 from Plantations. Hayes instituted this action in December 1977, after the then company management refused to make any further payments.

Hayes testified that in January 1972 he announced his intention to retire the following July, after twenty-five-years of continuous service. He decided to retire because he had worked continuously for fifty-one years. He stated, however, that he would not have retired had he not expected to receive a pension. After he stopped working for Plantations, he sought no other employment.

Approximately one week before his actual retirement Hayes spoke with Hugo R. Mainelli, Jr., who was then an officer and a stockholder of Plantations. This conversation was the first and only one concerning payments of a pension to Hayes during retirement. Mainelli said that the company "would take care" of him. There was no mention of a sum of money or a percentage of salary that Hayes would receive. There was no formal authorization for payments by Plantations's shareholders and/or board of directors. Indeed, there was never any formal provision for a pension plan for any employee other than for unionized employees, who benefit from an arrangement through their union. The plaintiff was not a union member.

Mr. Mainelli, Jr., testified that his father, Hugo R. Mainelli, Sr., had authorized the first payment "as a token of appreciation for the many years of [Hayes's] service." Furthermore, "it was implied that that check would continue on an annual basis." Mainelli also testified that it was his "personal intention" that the payments would continue for "as long as I was around."

Mainelli testified that after Hayes's retirement, he would visit the premises each year to say hello and renew old acquaintances. During the course of his visits, Hayes would thank Mainelli for the previous check and ask how long it would continue so that he could plan an orderly retirement.

The payments were discontinued after 1976. At that time a succession of several poor business years plus the stockholders' dispute, resulting in the takeover by the DiMartino family, contributed to the decision to stop the payments.

The trial justice ruled that Plantations owed Hayes his annual sum of $5,000 for the years 1977 through 1979. The ruling implied that barring bankruptcy or the cessation of business for any other reason, Hayes had a right to expect continued annual payments.

The trial justice found that Hugo Mainelli, Jr.'s statement that Hayes would be taken care of after his retirement was a promise. Although no sum of money was mentioned in 1972, the four annual payments of $5,000 established that otherwise unspecified term of the contract. The trial justice also found that Hayes supplied consideration for the promise by voluntarily retiring, because he was under no obligation to do so. From the words and conduct of the parties and from the surrounding circumstances, the trial justice concluded that there existed an implied contract obligating the company to pay a pension to Hayes for life. The trial justice made a further finding that even if Hayes had not truly bargained for a pension by voluntarily retiring, he had nevertheless incurred the detriment of foregoing other employment in reliance upon the company's promise. He specifically held that Hayes's retirement was in response to the promise and held also that Hayes refrained from seeking other employment in further reliance thereon.

The findings of fact of a trial justice sitting without a jury are entitled to great weight when reviewed by this court. His findings will not be disturbed unless it can be shown that they are clearly wrong or that the trial justice misconceived or overlooked material evidence. Lisi v. Marra, R.I., 424 A.2d 1052 (1981); Raheb v. Lemenski, 115 R.I. 576, 350 A.2d 397 (1976). After careful review of the record, however, we conclude that the trial justice's findings and conclusions must be reversed.

Assuming for the purpose of this discussion that Plantations in legal effect made a promise to Hayes, we must ask whether Hayes did supply the required consideration that would make the promise binding? And, if Hayes did not supply consideration, was his alleged reliance sufficiently induced by the promise to estop defendant from denying its obligation to him? We answer both questions in the negative.

We turn first to the problem of consideration. The facts at bar do not present the case of an express contract. As the trial justice stated, the existence of a contract in this case must be determined from all the circumstances of the parties' conduct and words. Although words were expressed initially in the remark that Hayes "would be taken care of," any contract in this case would be more in the nature of an implied contract. Certainly the statement of Hugo Mainelli, Jr., standing alone is not an expression of a direct and definite promise to pay Hayes a pension. Though we are analyzing an implied contract, nevertheless we must address the question of consideration.

Contracts implied in fact require the element of consideration to support them as is required in express contracts. The only difference between the two is the manner in which the parties manifest their assent. J. Koury Steel Erectors, Inc. v. San-Vel Concrete Corp., R.I., 387 A.2d 694 (1978); Bailey v. West, 105 R.I. 61, 249 A.2d 414 (1969). In this jurisdiction, consideration consists either in some right, interest, or benefit accruing to one party or some forbearance, detriment, or responsibility given, suffered, or undertaken by the other. See Dockery v. Greenfield, 86 R.I. 464, 136 A.2d 682 (1957); Darcey v. Darcey, 29 R.I. 384, 71 A. 595 (1909). Valid consideration furthermore must be bargained for. It must induce the return act or promise. To be valid, therefore, the purported consideration must not have been delivered before a promise is executed, that is, given without reference to the promise. Plowman v. Indian Refining Co., 20 F. Supp. 1 (E.D.Ill. 1937). Consideration is therefore a test of the enforceability of executory promises, Angel v. Murray, 113 R.I. 482, 322 A.2d 630 (1974), and has no legal effect when rendered in the past and apart from an alleged exchange in the present. Zanturjian v. Boornazian, 25 R.I. 151, 55 A. 199 (1903).

In the case before us, Plantations's promise to pay Hayes a pension is quite clearly not supported by any consideration supplied by Hayes. Hayes had announced his intent to retire well in advance of any promise, and therefore the intention to retire was arrived at without regard to any promise by Plantations. Although Hayes may have had in mind the receipt of a pension when he first informed Plantations, his expectation was not based on any statement made to him or on any conduct of the company officer relative to him in January 1972. In deciding to retire, Hayes acted on his own initiative. Hayes's long years of dedicated service also is legally insufficient because his service too was rendered without being induced by Plantations's promise. See Plowman v. Indian Refining Co., supra.

Clearly then this is not a case in which Plantations's promise was meant to induce Hayes to refrain from retiring when he could have chosen to do so in return for further service. 1 Williston on Contracts, § 130B (3d ed., Jaeger 1957). Nor was the promise made to encourage long service from the start of his employment. Weesner v. Electric Power Board of Chattanooga, 48 Tenn. App. 178, 344 S.W.2d 766 (1961). Instead, the testimony establishes that Plantations's promise was intended "as a token of appreciation for [Hayes's] many years of service." As such it was in the nature of a gratuity paid tm Hayes for as long as the company chose. In Spickelmier Industries, Inc. v. Passander, 172 Ind. App. 49, 359 N.E.2d 563 (1977), an employer's promise to an employee to pay him a year-end bonus was unenforceable because it was made after the employee to pay him a year-end bonus was unenforceable because it was made after the employee had performed his contractual responsibilities for that year.

The plaintiff's most relevant citations are still inapposite to the present case. Bredemann v. Vaughan Mfg. Co., 40 Ill. App.2d 232, 188 N.E.2d 746 (1963), presents similar yet distinguishable facts. There, the appellate court reversed a summary judgment granted to the defendant employer, stating that a genuine issue of material fact existed regarding whether the plaintiff's retirement was in consideration of her employer's promise to pay her a lifetime pension. As in the present case, the employer made the promise one week prior to the employee's retirement, and in almost the same words. However, Bredemannis distinguishable because the court characterized that promise as a concrete offer to pay if she would retire immediately. In fact, the defendant wanted her to retire. Id. 188 N.E.2d at 749. On the contrary, Plantations in this case did not actively seek Hayes's retirement. DiMartino, one of Plantation's founders, testified that he did not want Hayes to retire. Unlike Bredemann, here Hayes announced his unsolicited intent to retire.

Hayes also argues that the work he performed during the week between the promise and the date of his retirement constituted sufficient consideration to support the promise. He relies on Ulmann v. Sunset-McKee Co., 221 F.2d 128 (9th Cir.1955), in which the court ruled that work performed during the one-week period of the employee's notice of impending retirement constituted consideration for the employer's offer of a pension that the employee had solicited some months previously. But there the court stated that its prime reason for upholding the agreement was that sufficient consideration existed in the employee's consent not to compete with his employer. These circumstances do not appear in our case. Hayes left his employment because he no longer desired to work. He was not contemplating other job offers or considering going into competition with Plantations. Although Plantations did not want Hayes to leave, it did not try to deter him, nor did it seek to prevent Hayes from engaging in other activity.

Hayes argues in the alternative that even if Plantations's promise was not the product of an exchange, its duty is grounded properly in the theory of promissory estoppel. This court adopted the theory of promissory estoppel in East Providence Credit Union v. Geremia, 103 R.I. 597, 601, 239 A.2d 725, 727 (1968) (quoting 1 Restatement Contracts§ 90 at 110 (1932)) stating:

"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 its promise."

In East Providence Credit Union this court said that the doctrine of promissory estoppel is invoked "as a substitute for a consideration, rendering a gratuitous promise enforceable as a contract." Id. To restate the matter differently, "the acts of reliance by the promisee to his detriment [provide] a substitute for consideration." Id.

Hayes urges that in the absence of a bargained-for promise the facts require application of the doctrine of promissory estoppel. He stresses that he retired voluntarily while expecting to receive a pension. He would not have otherwise retired. Nor did he seek other employment.

We disagree with this contention largely for the reasons already stated. One of the essential elements of the doctrine of promissory estoppel is that the promise must induce the promisee's action or forbearance. The particular act in this regard is plaintiff's decision whether or not to retire. As we stated earlier, the record indicates that he made the decision on his own initiative. In other words, the conversation between Hayes and Mainelli which occurred a week before Hayes left his employment cannot be said to have induced his decision to leave. He had reached that decision long before.

An example taken from the restatement provides a meaningful contrast:

"2. A promises B to pay him an annuity during B's life. B thereupon resigns 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." (Emphasis added.) 1 Restatement Contracts § 90 at 111 (1932).

In Feinberg v. Pfeiffer Co., 322 S.W.2d 163 (Mo. App. 1959), the plaintiff-employee had worked for her employer for nearly forty years. The defendant corporation's board of directors resolved, in view of her long years of service, to obligate itself to pay "retirement privileges" to her. The resolution did not require the plaintiff to retire. Instead, the decision whether and when to retire remained entirely her own. The board then informed her of its resolution. The plaintiff worked for eighteen months more before retiring. She sued the corporation when it reduced her monthly checks seven years later. The court held that a pension contract existed between the parties. Although continued employment was not a consideration to her receipt of retirement benefits, the court found sufficient reliance on the part of the plaintiff to support her claim. The court based its decision upon the above restatement example, that is, the defendant informed the plaintiff of its plan, and the plaintiff in reliance thereon, retired. Feinberg presents factors that also appear in the case at bar. There, the plaintiff had worked many years and desired to retire; she would not have left had she not been able to rely on a pension; and once retired, she sought no other employment.

However, the important distinction between Feinberg and the case before us is that in Feinberg the employer's decision definitely shaped the thinking of the plaintiff. In this case the promise did not. It is not reasonable to infer from the facts that Hugo R. Mainelli, Jr., expected retirement to result from his conversation with Hayes. Hayes had given notice of his intention seven months previously. Here there was thus no inducement to retire which would satisfy the demands of § 90 of the restatement. Nor can it be said that Hayes's refraining from other employment was "action or forbearance of a definite and substantial character." The underlying assumption of Hayes's initial decision to retire was that upon leaving the defendant's employ, he would no longer work. It is impossible to say that he changed his position any more so because of what Mainelli had told him in light of his own initial decision. These circumstances do not lead to a conclusion that injustice can be avoided only by enforcement of Plantations's promise. 1097Hayes received $20,000 over the course of four years. He inquired each year about whether he could expect a check for the following year. Obviously, there was no absolute certainty on his part that the pension would continue. Furthermore, in the face of his uncertainty, the mere fact that payment for several years did occur is insufficient by itself to meet the requirements of reliance under the doctrine of promissory estoppel.

For the foregoing reasons, the defendant's appeal is sustained and the judgment of the Superior Court is reversed. The papers of the case are remanded to the Superior Court.