What is a Promise?

1. What is a Promise?

We begin by considering what it means to make a promise. Let’s forget for just a moment about the law and think instead what normal people mean when they talk about a promise. Suppose that your professor tells you on the first day of class: “I promise that you’ll enjoy Contracts this semester.” Consider how we should understand this “promise.” Does the fact that the statement is oral rather than in writing make any difference? Is there anything about the circumstances in which this statement is made that undermines your confidence that the professor intends for this “promise” to be binding?

Now read the following sections of the Restatement (Second), and think about how the legal use of the term “promise” relates to our common sense understanding of the word.

Restatement (Second) of Contracts

§ 1. Contract Defined

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

§ 2. Promise; Promisor; Promisee; Beneficiary

(1) A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.

(2) The person manifesting the intention is the promisor.

(3) The person to whom the manifestation is addressed is the promisee.

(4) Where performance will benefit a person other than the promisee, that person is a beneficiary.

§ 3. Agreement Defined; Bargain Defined

An agreement is a manifestation of mutual assent on the part of two or more persons. A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances.

§ 4. How a Promise May Be Made

A promise may be stated in words either oral or written, or may be inferred wholly or partly from conduct.

1.0.1 Discussion of Promise

Try to identify the essential elements or components of the legal meaning of the word “promise.” Can you draw a diagram to represent how these elements relate to one another?

Now think about why people make promises. Why not just perform the act? Why talk about it first?

1.1 Principal Case – Bailey v. West

Our first principal case continues to explore what it means to make a promise. As you read the court’s opinion, think carefully about how you would describe the facts or tell the story of what happened. Consider also the “procedural posture” of the case. How has the litigation progressed? Who sued whom? What has happened so far? Who won at each stage and what did they get in the way of remedies? How does the Rhode Island Supreme Court resolve the case?

Bailey v. West

Supreme Court of Rhode Island

105 R.I. 61, 249 A.2d 414 (1969)

Paolino, Justice.

[1] This is a civil action wherein the plaintiff [Bailey] alleges that the defendant [West] is indebted to him for the reasonable value of his services rendered in connection with the feeding, care and maintenance of a certain race horse named “Bascom’s Folly” from May 3, 1962 through July 3, 1966. The case was tried before a justice of the superior court sitting without a jury, and resulted in a decision for the plaintiff for his cost of boarding the horse for the five months immediately subsequent to May 3, 1962, and for certain expenses incurred by him in trimming its hoofs. The cause is now before us on the plaintiff’s appeal and defendant’s cross appeal from the judgment entered pursuant to such decision.

[2] The facts material to a resolution of the precise issues raised herein are as follows. In late April 1962, defendant, accompanied by his horse trainer, went to Belmont Park in New York to buy race horses. On April 27, 1962, defendant purchased Bascom’s Folly from a Dr. Strauss and arranged to have the horse shipped to Suffolk Downs in East Boston, Massachusetts. Upon its arrival defendant’s trainer discovered that the horse was lame, and so notified defendant, who ordered him to reship the horse by van to the seller at Belmont Park. The seller refused to accept delivery at Belmont on May 3, 1962, and thereupon, the van driver, one Kelly, called defendant’s trainer and asked for further instructions. Although the trial testimony is in conflict as to what the trainer told him, it is not disputed that on the same day Kelly brought Bascom’s Folly to plaintiff’s farm where the horse remained until July 3, 1966, when it was sold by plaintiff to a third party.

[3] While Bascom’s Folly was residing at his horse farm, plaintiff sent bills for its feed and board to defendant at regular intervals. According to testimony elicited from defendant at the trial, the first such bill was received by him some two or three months after Bascom’s Folly was placed on plaintiff’s farm. He also stated that he immediately returned the bill to plaintiff with the notation that he was not the owner of the horse nor was it sent to plaintiff’s farm at his request. The plaintiff testified that he sent bills monthly to defendant and that the first notice he received from him disclaiming ownership was “maybe after a month or two or so” subsequent to the time when the horse was left in plaintiff’s care.

[4] In his decision the trial judge found that defendant’s trainer had informed Kelly during their telephone conversation of May 3, 1962, that “he would have to do whatever he wanted to do with the horse, that he wouldn’t be on any farm at the defendant’s expense.” He also found, however, that when Bascom’s Folly was brought to his farm, plaintiff was not aware of the telephone conversation between Kelly and defendant’s trainer, and hence, even though he knew there was a controversy surrounding the ownership of the horse, he was entitled to assume that “there is an implication here that, ‘I am to take care of this horse.’” Continuing his decision, the trial justice stated that in view of the result reached by this court in a recent opinion[1] wherein we held that the instant defendant was liable to the original seller, Dr. Strauss, for the purchase price of this horse, there was a contract “implied in fact” between the plaintiff and defendant to board Bascom’s Folly and that this contract continued until plaintiff received notification from defendant that he would not be responsible for the horse’s board. The trial justice further stated that “I think there was notice given at least at the end of the four months, and I think we must add another month on there for a reasonable disposition of his property.”

[5] In view of the conclusion we reach with respect to defendant’s first two contentions, we shall confine ourselves solely to a discussion and resolution of the issues necessarily implicit therein, and shall not examine other subsidiary arguments advanced by plaintiff and defendant.

I

[6] The defendant alleges in his brief and oral argument that the trial judge erred in finding a contract implied in fact between the parties. We agree.

[7] The following quotation from 17 C.J.S. Contracts § 4 at pp. 557-560, illustrates the elements necessary to the establishment of a contract implied in fact:

A “contract implied in fact,” … or an implied contract in the proper sense, arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts, or, as it has been otherwise stated, where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract.

It has been said that a contract implied in fact must contain all the elements of an express contract. So, such a contract is dependent on mutual agreement or consent, and on the intention of the parties: and a meeting of the minds is required. A contract implied in fact is to every intent and purpose an agreement between the parties, and it cannot be found to exist unless a contract status is shown. Such a contract does not arise out of an implied legal duty or obligation, but out of facts from which consent may be inferred; there must be a manifestation of assent arising wholly or in part from acts other than words, and a contract cannot be implied in fact where the facts are inconsistent with its existence.

[8] Therefore, essential elements of contracts implied in fact are mutual agreement, and intent to promise, but the agreement and the promise have not been made in words and are implied from the facts. Power-Matics, Inc. v. Ligotti, 191 A.2d 483 (N.J. Super. 1963); St. Paul Fire & M. Ins. Co. v. Indemnity Ins. Co. of No. America, 158 A.2d 825 (N.J. 1960); St. John’s First Lutheran Church v. Storsteen, 84 N.W.2d 725 (S.D. 1957).[2]

[9] In the instant case, plaintiff sued on the theory of a contract “implied in law.” There was no evidence introduced by him to support the establishment of a contract implied in fact, and he cannot now argue solely on the basis of the trial justice’s decision for such a result.

[10] The source of the obligation in a contract implied in fact, as in express contracts, is in the intention of the parties. We hold that there was no mutual agreement and intent to promise between the plaintiff and defendant so as to establish a contract implied in fact for defendant to pay plaintiff for the maintenance of this horse. From the time Kelly delivered the horse to him plaintiff knew there was a dispute as to its ownership, and his subsequent actions indicated he did not know with whom, if anyone, he had a contract. After he had accepted the horse, he made inquiries as to its ownership and, initially, and for some time thereafter, sent his bills to both defendant and Dr. Strauss, the original seller.

[11] There is also uncontroverted testimony in the record that prior to the assertion of the claim which is the subject of this suit neither defendant nor his trainer had ever had any business transactions with plaintiff, and had never used his farm to board horses. Additionally, there is uncontradicted evidence that this horse, when found to be lame, was shipped by defendant’s trainer not to plaintiff’s farm, but back to the seller at Belmont Park. What is most important, the trial justice expressly stated that he believed the testimony of defendant’s trainer that he had instructed Kelly that defendant would not be responsible for boarding the horse on any farm.

[12] From our examination of the record we are constrained to conclude that the trial justice overlooked and misconceived material evidence which establishes beyond question that there never existed between the parties an element essential to the formulation of any true contract, namely, an intent to contract. Compare Morrissey v. Piette, R.I., 241 A.2d 302, 303.

II

[13] The defendant’s second contention is that, even assuming the trial justice was in essence predicating defendant’s liability upon a quasi-contractual theory, his decision is still unsupported by competent evidence and is clearly erroneous.

[14] The following discussion of quasi-contracts appears in 12 Am.Jur., Contracts, § 6 (1938) at pp. 503 to 504:

A quasi-contract has no reference to the intentions or expressions of the parties. The obligation is imposed despite, and frequently in frustration of, their intention. For a quasi contract neither promise nor privity, real or imagined, is necessary. In quasi contracts the obligation arises, not from consent of the parties, as in the case of contracts, express or implied in fact, but from the law of natural immutable justice and equity. The act, or acts, from which the law implies the contract must, however, be voluntary. Where a case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfil that obligation. The duty, which thus forms the foundation of a quasi-contractual obligation, is frequently based on the doctrine of unjust enrichment.…. The law will not imply a promise against the express declaration of the party to be charged, made at the time of the supposed undertaking, unless such party is under legal obligation paramount to his will to perform some duty, and he is not under such legal obligation unless there is a demand in equity and good conscience that he should perform the duty.

[15] Therefore, the essential elements of a quasi-contract are a benefit conferred upon defendant by plaintiff, appreciation by defendant of such benefit, and acceptance and retention by defendant of such benefit under such circumstances that it would be inequitable to retain the benefit without payment of the value thereof. Home Savings Bank v. General Finance Corp., 10 Wis.2d 417, 103 N.W.2d 117, 81 A.L.R.2d 580.

[16] The key question raised by this appeal with respect to the establishment of a quasi-contract is whether or not plaintiff was acting as a “volunteer” at the time he accepted the horse for boarding at his farm. There is a long line of authority which has clearly enunciated the general rule that “if a performance is rendered by one person without any request by another, it is very unlikely that this person will be under a legal duty to pay compensation.” 1 A Corbin, Contracts § 234.

[17] The Restatement of Restitution, § 2 (1937) provides: “A person who officiously confers a benefit upon another is not entitled to restitution therefor.” Comment a in the above-mentioned section states in part as follows:

Policy ordinarily requires that a person who has conferred a benefit…by way of giving another services…should not be permitted to require the other to pay therefor, unless the one conferring the benefit had a valid reason for so doing. A person is not required to deal with another unless he so desires and, ordinarily, a person should not be required to become an obligor unless he so desires.

[18] Applying those principles to the facts in the case at bar it is clear that plaintiff cannot recover. The plaintiff’s testimony on cross-examination is the only evidence in the record relating to what transpired between Kelly and him at the time the horse was accepted for boarding. The defendant’s attorney asked plaintiff if he had any conversation with Kelly at that time, and plaintiff answered in substance that he had noticed that the horse was very lame and that Kelly had told him: “That’s why they wouldn’t accept him at Belmont Track.” The plaintiff also testified that he had inquired of Kelly as to the ownership of Bascom’s Folly, and had been told that “Dr. Strauss made a deal and that’s all I know.” It further appears from the record that plaintiff acknowledged receipt of the horse by signing a uniform livestock bill of lading, which clearly indicated on its face that the horse in question had been consigned by defendant’s trainer not to plaintiff, but to Dr. Strauss’s trainer at Belmont Park. Knowing at the time he accepted the horse for boarding that a controversy surrounded its ownership, plaintiff could not reasonably expect remuneration from defendant, nor can it be said that defendant acquiesced in the conferment of a benefit upon him. The undisputed testimony was that defendant, upon receipt of plaintiff’s first bill, immediately notified him that he was not the owner of Bascom’s Folly and would not be responsible for its keep.

[19] It is our judgment that the plaintiff was a mere volunteer who boarded and maintained Bascom’s Folly at his own risk and with full knowledge that he might not be reimbursed for expenses he incurred incident thereto.

[20] The plaintiff’s appeal is denied and dismissed, the defendant’s cross appeal is sustained, and the cause is remanded to the superior court for entry of judgment for the defendant.

1.1.1 Discussion of implied contract claim in Bailey v. West

Write down a detailed chronological account of what happened in this case. Try to identify the key legal questions that the court thought it should resolve. How does the court rule on these questions? Where does the court find legal authority to support its resolution of the case? What facts did the court think were most relevant to its decision? Can you think of how we might argue that Bailey rather than West should have prevailed?

One way of thinking about this case is to ask whether the court should endorse Bailey’s or West’s expectations about the alleged boarding contract. Is there any common thread that can unify our efforts to analyze the parties’ expectations? What word could we use to describe the test that the court applies to decide whether Bailey has a legal right to expect payment for boarding Bascom’s Folly?

Are you happy living under a rule that refuses to protect Bailey’s expectations? What would happen if we were to flip the rule and force West to pay Bailey for boarding his horse? Would it be good to require people like West to anticipate how people like Bailey will interpret situations like this one?

1.1.2 The Law of Agency

Although the court sometimes talks about Bailey and West as though they were dealing directly with one another, the Bailey case is also full of potential “agents.” A complex body of law determines who is an agent and what that agent is authorized to do on behalf of his or her “principal.” Here are a few sections of the Restatement (Third) of Agency (2006), [hereinafter Restament (Third)], that explain the basic legal rules governing when someone has the legal authority to make a contract for another person.

Restatement (Third) of Agency

§ 1.03 Manifestation

A person manifests assent or intention through written or spoken words or other conduct.

§ 2.01 Actual Authority

An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal’s manifestations to the agent, that the principal wishes the agent so to act.

§ 2.03 Apparent Authority

Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.

§ 3.03 Creation of Apparent Authority

Apparent authority, as defined in § 2.03, is created by a person’s manifestation that another has authority to act with legal consequences for the person who makes the manifestation, when a third party reasonably believes the actor to be authorized and the belief is traceable to the manifestation.

§ 3.11 Termination of Apparent Authority

(1) The termination of actual authority does not by itself end any apparent authority held by an agent.

(2) Apparent authority ends when it is no longer reasonable for the third party with whom an agent deals to believe that the agent continues to act with actual authority.

1.1.3 Hypo on Agency

Paula owns a major national restaurant chain called Pig Place. The chain’s staff includes Andrew, the Pig Place purchasing manager. It is Andrew’s job to deal with food distributors and farms. He places orders, receives deliveries, handles returns, and approves payment on behalf of the restaurants. Among the suppliers with whom Andrew has regularly done business is Confinement Farms.

During a recent staff meeting, Paula told Andrew she had decided that the chain must no longer purchase any meat raised in inhumane conditions. Accordingly, Paula instructed Andrew to order only products certified by the Organic Growers Council (OGC). She explained that Pig Place would soon begin a major print, radio and television advertising campaign announcing the new policy and touting the health and environmental benefits of treating food animals humanely. Paula expressly instructed Andrew to stop dealing with Confinement Farms because they run a conventional growing and packaging operation that lacks OGC certification.

Andrew ignored Paula’s instructions and placed an order for 100,000 pounds of pork from Tom, who is the national sales manager at Confinement. A day later, Pig Place’s media campaign began and wholesale meat markets responded with alarm. The price of conventionally raised pork fell by 35 percent. Pig Place wants to cancel the order, but Confinement stands to lose more than $70,000 if it must resell the pork. Paula has fired Andrew for disregarding her instructions, but Andrew can’t afford to pay for the decline in the value of the meat.

1.1.4 Discussion of Agency

As between Pig Place and Confinement, who should bear the loss? Can you think of any arguments that would justify imposing the loss on Pig Place? On Confinement?

Now consider how the Restatement (Third), rules on agency might apply. Did Andrew have actual authority to act on Pig Place’s behalf? Is this a proper case for applying the doctrine of apparent authority?

How might the choice of a legal rule affect the behavior of similar parties in the future? Does thinking about these prospective effects provide any justification for choosing one rule rather than another?

1.1.5 Problem on Agency

How do these agency rules apply to the situation in Bailey v. West? Is there a plausible argument based on agency law that supports finding that West should be obliged to pay for boarding Bascom’s Folly? If so, who is the agent or other actor who has the legal authority to act on behalf of whom? Can you also develop agency law arguments that tend to excuse West from any obligation to Bailey?

1.1.6 The Law of Restitution

After rejecting Bailey’s implied contract claim, the Bailey court also considers whether West should be bound to pay Bailey for boarding services under “a quasi-contractual theory.” Modern commentary has largely abandoned the term “quasi-contract” and instead analyzes such claims under the law of restitution. Courts ordinarily refuse to provide compensation without evidence of a bargain. They often characterize the unsuccessful claimant as a “mere volunteer” or even perhaps an “officious intermeddler.” In very limited circumstances, however, courts may be willing to impose liability on someone who receives a benefit for which he or she has not bargained. An oft-quoted example is the following hypothetical from a judicial opinion:

If a person saw day after day a laborer at work in his field doing services which must of necessity enure to his benefit, knowing that the laborer expected pay for his work, when it was perfectly easy to notify him his services were not wanted, even if a request were not expressly proved, such a request, either previous or contemporaneous with the performance of the services might fairly be inferred. But if the fact was merely brought to his attention upon a single occasion and casually, if he had little opportunity to notify the other that he did not desire the work and should not pay for it, or could only do so at the expense of much time and trouble, the same inference might not be made.

Day v. Caton, 119 Mass. 513 (1876) (Holmes, J.).

1.1.7 Hypo on Restitution

Bob (the Builder) runs a construction company. A farmer hires Bob to demolish a ramshackle barn and erect in its place a prefabricated metal shed. The farmer agrees to pay the standard price for the shed and to allow Bob to sell any lumber he can salvage from the old barn. Unfortunately, Bob loses the scrap of paper on which he had written the directions to the farm. He recalls, however, that the farm is located just west of the intersection between Owensville and Garth Roads.

Relying on Google Maps and his recollection of the directions, Bob quickly finds a decrepit barn and spends the next week completing the demolition and shed construction. Bob also notices that a fence on the neighboring property is in disrepair. He decides to use the lumber salvaged from the barn to fix the fence.

When Bob calls the farmer to collect his bill, he discovers to his chagrin that there were several old barns in the immediate area. The new shed stands on land owned by Randle, a retired investment banker. Randle had spent every afternoon of the previous week sipping martinis on his back porch while he watched Bob at work on his barn. The fence owner, Jane, spent the week vacationing in Europe. Both Randle and Jane are delighted with Bob’s work but they each refuse to pay.

Suppose that Bob seeks restitution from Randle and Jane. Who do you expect will win and why? Suppose that Bob had instead demolished a barn and built the shed on Jane’s land. Would Bob have a better or worse chance of recovery against Jane?

1.1.8 Discussion of Restitution

Do the “essential elements of quasi-contract” discussed in Bailey v. West help us to determine whether Bob will prevail against Randle or Jane?

Consider how a rule denying Bob compensation will affect the behavior of future contractors and other homeowners. What would happen if we were to flip the rule and allow Bob to recover against both of the lucky homeowners?

Does Bailey have any argument for restitutionary recovery from West?

Can you see any connection between the principles that govern the implied contract claim in Bailey v. West, the agency issue, and the rules for restitution?

1.2 Principal Case – Lucy v. Zehmer

Our second principal case addresses another context in which the parties dispute the existence of a promise. As you read the opinion, ask yourself from whose perspective the court chooses to evaluate Zehmer’s alleged promise to sell his farm.

Lucy v. Zehmer

Supreme Court of Virginia

196 Va. 493, 84 S.E.2d 516 (1954)

Buchanan, J., delivered the opinion of the court.

[1] This suit was instituted by W. O. Lucy and J. C. Lucy, complainants, against A. H. Zehmer and Ida S. Zehmer, his wife, defendants, to have specific performance of a contract by which it was alleged the Zehmers had sold to W. O. Lucy a tract of land owned by A. H. Zehmer in Dinwiddie county containing 471.6 acres, more or less, known as the Ferguson farm, for $50,000. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.

[2] The instrument sought to be enforced was written by A. H. Zehmer on December 20, 1952, in these words: “We hereby agree to sell to W. O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to buyer,” and signed by the defendants, A. H. Zehmer and Ida S. Zehmer.

[3] The answer of A. H. Zehmer admitted that at the time mentioned W. O. Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered that the offer was made in jest; that so thinking, and both he and Lucy having had several drinks, he wrote out “the memorandum” quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.

[4] Depositions were taken and the decree appealed from was entered holding that the complainants had failed to establish their right to specific performance, and dismissing their bill. The assignment of error is to this action of the court.

[5] W. O. Lucy, a lumberman and farmer, thus testified in substance: He had known Zehmer for fifteen or twenty years and had been familiar with the Ferguson farm for ten years. Seven or eight years ago he had offered Zehmer $20,000 for the farm which Zehmer had accepted, but the agreement was verbal and Zehmer backed out. On the night of December 20, 1952, around eight o’clock, he took an employee to McKenney, where Zehmer lived and operated a restaurant, filling station and motor court. While there he decided to see Zehmer and again try to buy the Ferguson farm. He entered the restaurant and talked to Mrs. Zehmer until Zehmer came in. He asked Zehmer if he had sold the Ferguson farm. Zehmer replied that he had not. Lucy said, “I bet you wouldn’t take $50,000.00 for that place.” Zehmer replied, “Yes, I would too; you wouldn’t give fifty.” Lucy said he would and told Zehmer to write up an agreement to that effect. Zehmer took a restaurant check and wrote on the back of it, “I do hereby agree to sell to W. O. Lucy the Ferguson Farm for $50,000 complete.” Lucy told him he had better change it to “We” because Mrs. Zehmer would have to sign it too. Zehmer then tore up what he had written, wrote the agreement quoted above and asked Mrs. Zehmer, who was at the other end of the counter ten or twelve feet away, to sign it. Mrs. Zehmer said she would for $50,000 and signed it. Zehmer brought it back and gave it to Lucy, who offered him $5 which Zehmer refused, saying, “You don’t need to give me any money, you got the agreement there signed by both of us.”

[6] The discussion leading to the signing of the agreement, said Lucy, lasted thirty or forty minutes, during which Zehmer seemed to doubt that Lucy could raise $50,000. Lucy suggested the provision for having the title examined and Zehmer made the suggestion that he would sell it “complete, everything there,” and stated that all he had on the farm was three heifers.

[7] Lucy took a partly filled bottle of whiskey into the restaurant with him for the purpose of giving Zehmer a drink if he wanted it. Zehmer did, and he and Lucy had one or two drinks together. Lucy said that while he felt the drinks he took he was not intoxicated, and from the way Zehmer handled the transaction he did not think he was either.

[8] December 20 was on Saturday. Next day Lucy telephoned to J. C. Lucy and arranged with the latter to take a half interest in the purchase and pay half of the consideration. On Monday he engaged an attorney to examine the title. The attorney reported favorably on December 31 and on January 2 Lucy wrote Zehmer stating that the title was satisfactory, that he was ready to pay the purchase price in cash and asking when Zehmer would be ready to close the deal. Zehmer replied by letter, mailed on January 13, asserting that he had never agreed or intended to sell.

[9] Mr. and Mrs. Zehmer were called by the complainants as adverse witnesses. Zehmer testified in substance as follows:

[10] He bought this farm more than ten years ago for $11,000. He had had twenty-five offers, more or less, to buy it, including several from Lucy, who had never offered any specific sum of money. He had given them all the same answer, that he was not interested in selling it. On this Saturday night before Christmas it looked like everybody and his brother came by there to have a drink. He took a good many drinks during the afternoon and had a pint of his own. When he entered the restaurant around eight-thirty Lucy was there and he could see that he was “pretty high.” He said to Lucy, “Boy, you got some good liquor, drinking, ain’t you?” Lucy then offered him a drink. “I was already high as a Georgia pine, and didn’t have any more better sense than to pour another great big slug out and gulp it down, and he took one too.”

[11] After they had talked a while Lucy asked whether he still had the Ferguson farm. He replied that he had not sold it and Lucy said, “I bet you wouldn’t take $50,000.00 for it.” Zehmer asked him if he would give $50,000 and Lucy said yes. Zehmer replied, “You haven’t got $50,000 in cash.” Lucy said he did and Zehmer replied that he did not believe it. They argued “pro and con for a long time,” mainly about “whether he had $50,000 in cash that he could put up right then and buy that farm.”

[12] Finally, said Zehmer, Lucy told him if he didn’t believe he had $50,000, “you sign that piece of paper here and say you will take $50,000.00 for the farm.” He, Zehmer, “just grabbed the back off of a guest check there” and wrote on the back of it. At that point in his testimony Zehmer asked to see what he had written to “see if I recognize my own handwriting.” He examined the paper and exclaimed, “Great balls of fire, I got ‘Firgerson’ for Ferguson. I have got satisfactory spelled wrong. I don’t recognize that writing if I would see it, wouldn’t know it was mine.”

[13] After Zehmer had, as he described it, “scribbled this thing off,” Lucy said, “Get your wife to sign it.” Zehmer walked over to where she was and she at first refused to sign but did so after he told her that he “was just needling him [Lucy], and didn’t mean a thing in the world, that I was not selling the farm.” Zehmer then “took it back over there…and I was still looking at the dern thing. I had the drink right there by my hand, and I reached over to get a drink, and he said, ‘Let me see it.’ He reached and picked it up, and when I looked back again he had it in his pocket and he dropped a five dollar bill over there, and he said, ‘Here is five dollars payment on it.’…I said, ‘Hell no, that is beer and liquor talking. I am not going to sell you the farm. I have told you that too many times before.’”

[14] Mrs. Zehmer testified that when Lucy came into the restaurant he looked as if he had had a drink. When Zehmer came in he took a drink out of a bottle that Lucy handed him. She went back to help the waitress who was getting things ready for next day. Lucy and Zehmer were talking but she did not pay too much attention to what they were saying. She heard Lucy ask Zehmer if he had sold the Ferguson farm, and Zehmer replied that he had not and did not want to sell it. Lucy said, “I bet you wouldn’t take $50,000 cash for that farm,” and Zehmer replied, “You haven’t got $50,000 cash.” Lucy said, “I can get it.” Zehmer said he might form a company and get it, “but you haven’t got $50,000.00 cash to pay me tonight.” Lucy asked him if he would put it in writing that he would sell him this farm. Zehmer then wrote on the back of a pad, “I agree to sell the Ferguson Place to W. O. Lucy for $50,000.00 cash.” Lucy said, “All right, get your wife to sign it.” Zehmer came back to where she was standing and said, “You want to put your name to this?” She said “No,” but he said in an undertone, “It is nothing but a joke,” and she signed it.

[15] She said that only one paper was written and it said: “I hereby agree to sell,” but the “I” had been changed to “We”. However, she said she read what she signed and was then asked, “When you read ‘We hereby agree to sell to W. O. Lucy,’ what did you interpret that to mean, that particular phrase?” She said she thought that was a cash sale that night; but she also said that when she read that part about “title satisfactory to buyer” she understood that if the title was good Lucy would pay $50,000 but if the title was bad he would have a right to reject it, and that that was her understanding at the time she signed her name.

[16] On examination by her own counsel she said that her husband laid this piece of paper down after it was signed; that Lucy said to let him see it, took it, folded it and put it in his wallet, then said to Zehmer, “Let me give you $5.00,” but Zehmer said, “No, this is liquor talking. I don’t want to sell the farm, I have told you that I want my son to have it. This is all a joke.” Lucy then said at least twice, “Zehmer, you have sold your farm,” wheeled around and started for the door. He paused at the door and said, “I will bring you $50,000.00 tomorrow….No, tomorrow is Sunday. I will bring it to you Monday.” She said you could tell definitely that he was drinking and she said to her husband, “You should have taken him home,” but he said, “Well, I am just about as bad off as he is.”

[17] The waitress referred to by Mrs. Zehmer testified that when Lucy first came in “he was mouthy.” When Zehmer came in they were laughing and joking and she thought they took a drink or two. She was sweeping and cleaning up for next day. She said she heard Lucy tell Zehmer, “I will give you so much for the farm,” and Zehmer said, “You haven’t got that much.” Lucy answered, “Oh, yes, I will give you that much.” Then “they jotted down something on paper … and Mr. Lucy reached over and took it, said let me see it.” He looked at it, put it in his pocket and in about a minute he left. She was asked whether she saw Lucy offer Zehmer any money and replied, “He had five dollars laying up there, they didn’t take it.” She said Zehmer told Lucy he didn’t want his money “because he didn’t have enough money to pay for his property, and wasn’t going to sell his farm.” Both of them appeared to be drinking right much, she said.

[18] She repeated on cross-examination that she was busy and paying no attention to what was going on. She was some distance away and did not see either of them sign the paper. She was asked whether she saw Zehmer put the agreement down on the table in front of Lucy, and her answer was this: “Time he got through writing whatever it was on the paper, Mr. Lucy reached over and said, ‘Let’s see it.’ He took it and put it in his pocket,’ before showing it to Mrs. Zehmer.” Her version was that Lucy kept raising his offer until it got to $50,000.

[19] The defendants insist that the evidence was ample to support their contention that the writing sought to be enforced was prepared as a bluff or dare to force Lucy to admit that he did not have $50,000; that the whole matter was a joke; that the writing was not delivered to Lucy and no binding contract was ever made between the parties.

[20] It is an unusual, if not bizarre, defense. When made to the writing admittedly prepared by one of the defendants and signed by both, clear evidence is required to sustain it.

[21] In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction “was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done. It is contradicted by other evidence as to the condition of both parties, and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed, and hence that instrument is not to be invalidated on that ground. 17 C.J.S., Contracts, § 133 b., p. 483; Taliaferro v. Emery, 124 Va. 674, 98 S.E. 627. It was in fact conceded by defendants’ counsel in oral argument that under the evidence Zehmer was not too drunk to make a valid contract.

[22] The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell.” Zehmer first said he could not remember about that, then that “I don’t think I wrote but one out.” Mrs. Zehmer said that what he wrote was “I hereby agree,” but that the “I” was changed to “We” after that night. The agreement that was written and signed is in the record and indicates no such change. Neither are the mistakes in spelling that Zehmer sought to point out readily apparent.

[23] The appearance of the contract, the fact that it was under discussion for forty minutes or more before it was signed; Lucy’s objection to the first draft because it was written in the singular, and he wanted Mrs. Zehmer to sign it also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the discussion of what was to be included in the sale, the provision for the examination of the title, the completeness of the instrument that was executed, the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back, are facts which furnish persuasive evidence that the execution of the contract was a serious business transaction rather than a casual, jesting matter as defendants now contend.

[24] On Sunday, the day after the instrument was signed on Saturday night, there was a social gathering in a home in the town of McKenney at which there were general comments that the sale had been made. Mrs. Zehmer testified that on that occasion as she passed by a group of people, including Lucy, who were talking about the transaction, $50,000 was mentioned, whereupon she stepped up and said, “Well, with the high-price whiskey you were drinking last night you should have paid more. That was cheap.” Lucy testified that at that time Zehmer told him that he did not want to “stick” him or hold him to the agreement because he, Lucy, was too tight and didn’t know what he was doing, to which Lucy replied that he was not too tight; that he had been stuck before and was going through with it. Zehmer’s version was that he said to Lucy: “I am not trying to claim it wasn’t a deal on account of the fact the price was too low. If I had wanted to sell $50,000.00 would be a good price, in fact I think you would get stuck at $50,000.00.” A disinterested witness testified that what Zehmer said to Lucy was that “he was going to let him up off the deal, because he thought he was too tight, didn’t know what he was doing. Lucy said something to the effect that ‘I have been stuck before and I will go through with it.’”

[25] If it be assumed, contrary to what we think the evidence shows, that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer’s place and there Zehmer told him for the first time, Lucy said, that he wasn’t going to sell and he told Zehmer, “You know you sold that place fair and square.” After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.

[26] Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm.

[27] In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. ‘The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’” First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S.E. 764, 770.

[28] At no time prior to the execution of the contract had Zehmer indicated to Lucy by word or act that he was not in earnest about selling the farm. They had argued about it and discussed its terms, as Zehmer admitted, for a long time. Lucy testified that if there was any jesting it was about paying $50,000 that night. The contract and the evidence show that he was not expected to pay the money that night. Zehmer said that after the writing was signed he laid it down on the counter in front of Lucy. Lucy said Zehmer handed it to him. In any event there had been what appeared to be a good faith offer and a good faith acceptance, followed by the execution and apparent delivery of a written contract. Both said that Lucy put the writing in his pocket and then offered Zehmer $5 to seal the bargain. Not until then, even under the defendants’ evidence, was anything said or done to indicate that the matter was a joke. Both of the Zehmers testified that when Zehmer asked his wife to sign he whispered that it was a joke so Lucy wouldn’t hear and that it was not intended that he should hear.

[29] The mental assent of the parties is not requisite for the formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party. Restatement of the Law of Contracts, Vol. I, § 71, p. 74.

…The law, therefore, judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them….

Clark on Contracts, 4 ed., § 3, p. 4.

[30] An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. If his words and acts, judged by a reasonable standard, manifest an intention to agree, it is immaterial what may be the real but unexpressed state of his mind. 17 C.J.S., Contracts, § 32, p. 361; 12 Am. Jur., Contracts, § 19, p. 515.

[31] So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement, 17 C.J.S., Contracts, § 47, p. 390; Clark on Contracts, 4 ed., § 27, at p. 54.

[32] Whether the writing signed by the defendants and now sought to be enforced by the complainants was the result of a serious offer by Lucy and a serious acceptance by the defendants, or was a serious offer by Lucy and an acceptance in secret jest by the defendants, in either event it constituted a binding contract of sale between the parties.

[33] Defendants contend further, however, that even though a contract was made, equity should decline to enforce it under the circumstances. These circumstances have been set forth in detail above. They disclose some drinking by the two parties but not to an extent that they were unable to understand fully what they were doing. There was no fraud, no misrepresentation, no sharp practice and no dealing between unequal parties. The farm had been bought for $11,000 and was assessed for taxation at $6,300. The purchase price was $50,000. Zehmer admitted that it was a good price. There is in fact present in this case none of the grounds usually urged against specific performance.

[34] Specific performance, it is true, is not a matter of absolute or arbitrary right, but is addressed to the reasonable and sound discretion of the court. First Nat. Bank v. Roanoke Oil Co., supra, 169 Va. at p. 116, 192 S.E. at p. 771. But it is likewise true that the discretion which may be exercised is not an arbitrary or capricious one, but one which is controlled by the established doctrines and settled principles of equity; and, generally, where a contract is in its nature and circumstances unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. Bond v. Crawford, 193 Va. 437, 444, 69 S.E.2d 470, 475.

[35] The complainants are entitled to have specific performance of the contracts sued on. The decree appealed from is therefore reversed and the cause is remanded for the entry of a proper decree requiring the defendants to perform the contract in accordance with the prayer of the bill.

Reversed and remanded.

1.2.1 Capacity to Contract

In Lucy, the court discusses at some length the possibility that Zehmer might be excused from contractual liability because he was intoxicated. The law concerning intoxication is simply one manifestation of a more general principle that we refer to as “capacity to contract.” Here is what the Restatement (Second) has to say on the subject:

Restatement (Second) of Contracts

§ 12. Capacity To Contract

(1) No one can be bound by contract who has not legal capacity to incur at least voidable contractual duties. Capacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or upon other circumstances.

(2) A natural person who manifests assent to a transaction has full legal capacity to incur contractual duties thereby unless he is

(a) under guardianship, or

(b) an infant, or

(c) mentally ill or defective, or

(d) intoxicated.

§ 16. Intoxicated Persons

A person incurs only voidable contractual duties by entering into a transaction if the other party has reason to know that by reason of intoxication

(a) he is unable to understand in a reasonable manner the nature and consequences of the transaction, or

(b) he is unable to act in a reasonable manner in relation to the transaction.

1.2.2 Discussion of Lucy v. Zehmer

What leads the court to reject Zehmer’s intoxication defense?

How does the court respond to Zehmer’s contention that his offer to sell the Ferguson farm was in jest?

Can you construct an argument to justify the court’s approach?

How would future parties respond if the legal rule favored Zehmer rather than Lucy in these circumstances?

1.2.3 Leonard v. Pepsico

Sometimes a purported promise is merely a joke. In the celebrated case of Leonard v. Pepsico, 88 F. Supp. 116 (S.D.N.Y. 1997), the court considered Leonard’s claim that a “Pepsi Stuff” commercial constituted a promise to redeem 7,000,000 Pepsi Points for a Harrier Jet. Leonard submitted an order form, fifteen Pepsi Points, and a check for $700,008.50 to purchase the remaining points. Although the order form offered additional points at 10 cents each, it did not list the jet as an available premium. Leonard wrote in “1 Harrier Jet” in the “Item” column and “7,000,000” in the “Total Points” column. Pepsico returned Leonard’s submission and explained that the company had included the images of the Harrier Jet for its comic effect. The court similarly rejected plaintiff’s claim and opined that:

[N]o objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet.… In evaluating the commercial, the Court must not consider defendant’s subjective intent in making the commercial, or plaintiff’s subjective view of what the commercial offered, but what an objective, reasonable person would have understood the commercial to convey… If it is clear that an offer was not serious, then no offer has been made: An obvious joke, of course, would not give rise to a contract.

Id. at 137.