1.

Promisor should reasonably expect promise to induce action or forbearance Promise does induce such action or forbearance Promise must be enforced to prevent injustice

2. 3.

A Very Bad Break-Up. Cecilia Barnes broke-up with her boyfriend, who responded by posting unauthorized profiles of Barnes, including her contact information and nude photographs taken without her knowledge, on a Yahoo website. The ex-boyfriend, posing as Barnes, corresponded with men using Yahoos online chat rooms and directing them to the false profiles. Barnes learned of the exs actions when strangers began contacting and visiting her without invitation. Barnes sent proof of identity and a signed statement disavowing any role in the profiles to Yahoo, requesting Yahoo remove the profiles from its website. After months of inaction despite repeated communications from Barnes, a local news program prepared to broadcast a report of the incident. A day before the broadcast, Yahoos Director of Communication called Barnes and promised to personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it. Two more months passed. Barnes filed a lawsuit against Yahoo, and shortly thereafter the profiles disappeared. Does Barnes have a viable promissory estoppel claim against Yahoo?

A Very Bad Break-Up. a) No, because it was not foreseeable that Barnes would rely on Yahoos promise. b) Yes, if Barnes can prove actual reliance.

A Very Bad Break-Up. In Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), Judge OScannlain reversed the trial courts dismissal of Barness promissory estoppel claim. The trial court had found that Yahoo was immune from the claim because of the Communications Decency Acts protection against tort suits. The courts of appeals disagreed, finding that a promissory estoppel claim, while on the blurry boundary between contract and tort, its promissory character distinguishes it from tort. That character drives our analysis here and places promissory estoppel beyond the reach of [the CDA]. OScannlain explained that, under Oregon law, The principal criteria that determine when action renders a promise enforceable under this doctrine are: (1) a promise[;] (2) which the promisor, as a reasonable person, could foresee would induce conduct of the kind which occurred[;] (3) actual reliance on the promise[;] (4) resulting in a substantial change in position. OScannlain treats promissory estoppel as a species of contract claim. Yahoo may be liable for its promise to remove the profiles to the extent that Barnes relied to her detriment.

The Surviving Spouse. In 1983, Jackson National sold a life insurance policy to Carl and Patricia Green, in which Mrs. Green was the primary beneficiary. In 1991, the Greens separated, and Mr. Green changed the primary beneficiary to two sons from a previous marriage. When Mr. Green became seriously ill in 1992, the couple reconciled, and Mrs. Green took substantial responsibility for caring for Mr. Green until his death in 2003. She incurred $20,000 worth of debt for his medical expenses. In 2002, Mr. Green told Mrs. Green that he wanted her to get the life insurance proceeds to cover the costs she incurred, and he contacted Jackson National asking who was listed as the beneficiary on the policy. Jackson National sent a reply stating that it could not provide a duplicate copy of the policy but its policy summary listed Mrs. Green as the beneficiary on the date of issue. Mr. Green reported to Mrs. Green in front of two witnesses that Jackson had confirmed that Mrs. Green was the beneficiary. But, when Mrs. Green contacted Jackson after Mr. Greens death, Jackson informed her that the sons were in fact the beneficiaries of the policy. Mrs. Green sued Jackson National for breach of contract and promissory estoppel. What result?

The Surviving Spouse. a) There can be no liability because Jackson made no promise concerning Mrs. Greens status as beneficiary. b) Whether Jackson made a promise and whether the Greens relied on it was a question of fact for the jury to decide.

The Surviving Spouse. In Patricia Green v. Jackson National Life Insurance Company, 2006 WL 2373289 (6th Cir. 2006), the Sixth Circuit reversed the district courts grant of summary judgment in favor of the defendant. First, the court found that it was a material issue of fact who was the official beneficiary of the policy. Second, the court finds a material issue of fact as to whether Jacksons reply constituted a promise that Mrs. Green was the beneficiary and whether the Greens detrimentally relied by failing to take additional steps to ensure that she was the official beneficiary of the policy. The court states that this reliance was reasonable in light of the communications with Jackson (which also included an earlier phone call and discussion with the local agent). It would be interesting to discuss whether Mrs. Green could seek quantum meruit recovery from the estate of Mr. Green.

Order of the Coif. Meyer Blatt attended the night program at the University of Southern California School of Law. While in school, he inquired about the requirements for induction to the Order of the Coif, a prestigious national legal honor society, and was told that he would be eligible if he was in the top 10 percent of his class. Later but while Blatt was still a student, the law school added a requirement that students serve on the law review to be chosen for Coif. Blatt had started work on the law review but chose to quit after he was told that the requirement did not apply to him because he was a night student. Blatt graduated 4th in his class of 135, but was not selected for Coif because he did not continue with law review. He has brought breach of contract and promissory estoppel claims against USC. Should his claims survive a motion to dismiss?

Order of the Coif. a) Yes, on these facts Blatt is entitled to recover because USC promised he would be chosen for Coif if his grades were in the top 10 percent of his class and he relied on this. b) No, Blatt has not stated a claim for promissory estoppel.

Order of the Coif. In Blatt v. University of Southern California, the California Court of Appeal, Second District, found that the plaintiff failed to state a cause of action in contract or in promissory estoppel. 5 Cal. App. 3d 935, 85 Cal. Rptr. 601 (Cal. App. 1970). The court concluded that the alleged unilateral agreement lacked consideration because USC did not seek anything in exchange for its promise. (The analysis might be different in Blatt had inquired about Coif membership prior to accepting USCs offer of admission into its program.) The court gives more attention to the promissory estoppel claim. Blatt argued that he could have taken an easier path through law school, but instead worked hard to obtain the promised reward of Coif induction, which he likened to an employment bonus. The court concluded that the promise was insufficient to support his claim because Blatt did not take definite and substantial steps in reliance. Presumably he would have tried to do well in his classes regardless. The court also notes that he school did not promise membership but only made representations as to eligibility for selection, which remained in the schools discretion.

Discarded Evidence. Bryan Cooper was involved in a single car accident caused by tread separation of the right rear tire. His insurer, State Farm Mutual Automobile Insurance Company, acquired possession of the car (including the right rear tire) as part of the collision damage settlement with Cooper. State Farm informed Cooper that its expert concluded that the tread separated because the tire was defectively manufactured. Cooper sued the tire manufacturer, and his attorney notified State Farm of the importance of the tire to Coopers case. After State Farm informed Cooper that it would retain the tire, State Farm disposed of the car including the defective tire. Cooper has sued State Farm. On what claim(s), if any, is Cooper likely to succeed?

Discarded Evidence. a) Cooper should recover on a promissory estoppel theory because State Farm promised to retain the tire and its failure to do so made it impossible for Cooper to prevail in its original lawsuit. b) Cooper should not recover because, even if State Farm made and broke a promise, there was no guarantee that Cooper would have prevailed in the trial and thus there are no damages.

Discarded Evidence. Cooper sued State Farm in California Superior Court on a

promissory estoppel claim (among others), asserting that State Farm promised to keep the tire, he relied on the promise by not taking possession of the tire immediately, and that as a result of State Farm's conduct, he was unable to prove his product defect case against the tire manufacturer. In a bench trial, the trial court granted State Farms motion for a nonsuit after Cooper counsels opening statement. The trial court ruled that Cooper was legally precluded from recovering damages for the alleged destruction of the tire because Cooper would be unable to show that he would have prevailed in his case against the manufacturer had the tire not been destroyed. The California Court of Appeal reversed. Cooper v. State Farm Mut. Auto. Ins. Co., --- Cal.Rptr.3d ----, 2009 WL 2962494 (Cal.App. 4 Dist. 2009). The appellate court found that plaintiff, during his opening statement, presented prima facie facts to support an independent duty to preserve the tire based on State Farm's promise and plaintiff's reliance thereon. (The court also concluded that Cooper could succeed on a tort theory of a voluntary assumption of a duty.) The trial court was correct in ruling that Cooper had to prove that he suffered a harm as a result of State Farms breach of its promise to preserve the tire. But, unlike the trial judge, the appellate judges concluded that the harm was not too speculative because the opening statement detailed expert testimony which would be introduced establishing the defect in the tire and that it proximately caused Coopers accident as well as expert testimony that, but for the missing tire, Cooper was likely to succeed in his claim. Thus the appeals court sent the case back for a bench trial.

A Scenic View. Ken Nelson sold a lot to Karen and Alan Nicol, who planned to build a vacation home there. The property offered scenic views across an undeveloped piece of land. Prior to closing the deal, the Nicols expressed concern that the open land would be developed, cutting off their view. Nelson assured them that the property would remain undeveloped, and told them that although he did not own the land, he had an option to purchase it. Nelson later purchased the open land and started to build on it. The Nicols sued to enjoin the construction, asserting promissory estoppel. Nelson asserted the statute of frauds barred enforcement of the alleged promise because it related to interests in real property and was not reflected in a writing. And, even if promissory estoppel were available, Nelson argued that his statements did not constitute an actionable promise. How should the court rule?

A Scenic View. a) The Nicols should recover because a Nelson made and broke a promise, on which the Nicols relied, and the statute of frauds should not be applicable to a promissory estoppel claim. b) Nelson should prevail because the promise concerned a transaction in land and there was no signed writing memorializing the promise. c) Nelson should prevail because his statement constituted a statement of present intent, not a promise.

A Scenic View. The Colorado Court of Appeals found that a promissory estoppel claim is viable notwithstanding the statute of frauds. Nicol v. Nelson, 776 P.2d 1144 (1989). Colorado adopts the position of the Rest. (2d) Contracts 139 that reasonable and detrimental reliance on a promise overrides application of the statute of frauds. The court found sufficient evidence in the record to support the trial courts finding that Nelsons promise was sufficient to meet the requirements of Section 90. Although Nelsons statements regarding the current owners intentions were statements of opinion, his statements regarding his right to purchase and his commitment to keep the land as open space served as a sufficient basis for the Nicols reliance that he would not develop. Finally, the court held that equitable relief was available for a promissory estoppel claim in these circumstances.

Rule Offeror can revoke Prior to complete performance (Common Law) Beginning performance creates option K (Rest. 45)

Problem Offeree who partially performs is vulnerable

Offeree who prepares is vulnerable Offeror is vulnerable when Offeree partially performs

Preparation creates option K

Offeror is vulnerable

Losing the Bet. Pop's Cones operated a TCBY Yogurt franchise in Margate, New
Jersey. From May through July 1994, Pops President Brenda Taube had numerous discussions with The Players Club Casino Resort on the Atlantic City boardwalk about moving Pop's business there. Pops obtained approval from TCBY to change its franchise site, and delivered a written proposal to the Resort on August 18. Three weeks later, Taube pressed the Resorts Executive Director for a decision, explaining that Pops option to renew its Margate lease expired October 1. He responded that we are 95% there, we just need the COOs signature on the deal and advised her to pack up the Margate store and plan on moving. Taube did just that, storing the yogurt shops equipment and preparing to relocate. On December 1, the Resorts General Counsel made a written offer to Pops proposing slightly different terms. In early December, Taube met with the Resorts General Counsel to finalize lease terms. The Resort put off a planned meeting to close the deal until January 1995, but assured Pops that the Resort wanted TCBY ... on the boardwalk for the following season. In January, Pops received a letter from the Resort withdrawing its December 1 offer. (Simultaneously, the Resort pursued an ultimately successful lease with Host Marriott to operate a TCBY franchise in the space.) Pops immediately began looking for another space (the Margate location was now unavailable), but was unable to reopen for business until July 1996. Pops is now considering a suit against the Resort. What claims could it bring and what are its prospects for success?

Losing the Bet. a) Pops should prevail on a promissory estoppel if it can prove the facts alleged. b) Pops has no viable claim for breach of contract or promissory estoppel because the Resort never assented to a contract nor promised Pops it would definitely provide Pops with the site in question.

Losing the Bet. Pops brought a promissory estoppel claim against the corporation which owned The Players Club (Resorts International Hotel). The trial court (Superior Court, Law Division) dismissed the complaint. On appeal, the New Jersey Superior Court, Appellate Division reversed, holding that complaints allegations that Resorts Executive Director assured Pops President that the lease would be finalized, instructed her not to renew its existing lease, and told her to pack up the shop and prepare to move, and that Pops failed to renew its existing lease based on this assurance, vacated existing location, and ultimately incurred expense of relocating after hotel withdrew its offer to lease space, set forth prima facie case of promissory estoppel against Resorts. Pops Cones, Inc. v. Resorts Intl Hotel, Inc., 704 A.2d 1321(N.J. Super. 1998). The appellate court concluded that the trial court had mistakenly treated the complaint as seeking recovery on a contract theory (and expectation damages) rather than recovery on a promissory estoppel theory (and damages measured by unavoidable costs incurred). The appellate court agreed that Pops could not succeed on a contract claim nor receive damages measured by the lost boardwalk lease, but concluded it was not seeking such a recovery.

Meals to Go. Babybacks International, which sells ready-to-eat barbeque meat products, had a co-marketing agreement with the Indianapolis distributor of Coke products (Coke Indy). Coke Indy paid Babybacks to arrange and place coolers in grocery stores with their products displayed side-by-side. Based on the success of this meals to go concept, Babybacks met with Cokes national office to discuss expanding to other markets, including Atlanta. After the meeting, Coke faxed a multi-page memo to Babybacks, reviewing numerous terms on which the parties had agreed and discussing specific steps which had already been taken in an Atlanta grocery store chain. The first page of the fax stated We enjoyed our meeting yesterday with you and believe we have made further strides toward coming to agreement... As we have stated several times, we do agree that complimentary merchandising of Babybacks with Coca-Cola does make sense. Based on plans made in the meeting, Babybacks spent approximately $500,000 on coolers and advertising for the Atlanta stores. After doubts arose about the quality of Babybacks products, Coke withdrew from the deal, and Babybacks brought suit. Does it have a successful promissory estoppel claim?

Meals to Go. a) Yes, because Babybacks reliance on the partnership with Coke was foreseeable and substantial. b) No, because Babybacks reliance expenditure was not reasonable given the fact that there was no contract.

Meals to Go. The Indiana Supreme Court held that the Babybacks reliance was unreasonable in light of the language in Cokes fax stating that the parties did not yet have an agreement. Coca-Cola Co. v. Babybacks Intl, 841 N.E. 2d 557 (Ind. 2006). The court also held that the oral promise could be enforced under promissory estoppel even though it was unenforceable as a contract under the statute of frauds because it could not be performed within one year and the fax did not meet the writing requirement. But, in this case, Babybacks failed to prove that Cokes promise induced reasonable reliance, a required element of promissory estoppel.

Bid Shopping. Pavel Enterprises Inc., a general contractor, planned to submit a proposal for a National Institutes of Health construction project and solicited bids from mechanical subcontractors. A.S. Johnson Company called with a quote of $898,000. Pavel used Johnsons sub-bid in computing its own bid of $1,585,000 for the project. A month later when the original winning bidder was disqualified, NIH informed Pavel that it was the successful bidder. Pavel met with Johnson to discuss Johnsons proposed role in the work, and then faxed all prospective mechanical subcontractors to ask them to resubmit their bids. None of the subcontractors submitted a bid below Johnsons original. When Pavel sought to accept, Johnson withdrew its bid because of a mistake in its calculation. Pavel has sued, seeking the difference between Johnsons bid and the next lowest bid ($32,000). What result under Drennan?

Bid Shopping. a) Pavel should prevail because it relied on Johnsons sub-contract bid when submitting its general contract bid. b) Johnson should prevail because Pavel did not actually rely on its bid.

Bid Shopping. The Maryland Court of Appeals affirmed the trial courts judgment in favor of subcontractor. While Johnsons bid could serve as the basis for a promissory estoppel claim, Pavel failed to prove that it had detrimentally relied on Johnsons bid. Pavel Enterprises, Inc. v. A.S. Johnson Co., Inc., 342 Md. 143, 674 A.2d 521 (Md. 1996). Pavels actions in meeting with Johnson to assess whether to use it as a subcontractor and in faxing all subcontractors supports the trial courts finding that Pavel did not rely. Pavel appeared to be bid shopping as well as bid chopping (trying to persuade the lowest subcontractor to reduce its bid). The court refused to hold that bid shopping alone was sufficient evidence of a failure to rely, but listed it as one relevant piece of evidence.
(The court also concluded that, while a close question, Pavels acceptance was not timely and thus did not create a bilateral contract. The appellate court found two separate grounds to support the trial courts ruling: either too much time had passed due to disqualification or Pavels acceptance was conditioned on final award of contract from NIH which did not occur until several weeks later, and Johnson could revoke between the time of the conditional acceptance and NIHs final award.)

Implied-In-Law Contract Unjust Enrichment Restitution Quantum Meruit Constructive Contract

Quasi-Contract

Enrich

Unjust

Not Unjust: Gratuitous Officious

(1) Did the parties have an opportunity to contract?

Yes

No

No Quasi-K

(2) Would a reasonable person have contracted if she had the chance?

Yes

No

Quasi-K

No Quasi-K

Working on the Railroad. Azmina Weatherby and her husband are employees of
Burlington Northern & Santa Fe Railway Co. (BNSF). She holds a salaried crew planner position, and he holds an hourly engineering position. When BNSF transferred her husband from Fort Worth to Kansas City, Weatherby applied for an open crew planner position in Kansas City to accompany him. At the time, she asked whether she would receive relocation benefits. She knew that other employees at her level had received relocation benefits when they had moved within the company. The Kansas City superintendent told her that he would check on it. After Weatherby accepted the Kansas City position and had arrived at her new job, she asked the superintendant again, and he again said he would find out. The employee handbook states:
The BNSF Salaried Employee Relocation Policy provides coverage for most travel, living and moving expenses associated with your relocation. This policy applies to all salaried employees who are transferred from one location to another at the request of the Company, provided that the distance between your departure residence and the new work location must be 50 miles greater than the distance between your departure residence and your former work location. This policy is subject to revision by the Company at any time, without notice, as necessary, and is not to be construed as conferring any contractual right or becoming a part of any employment contract. Furthermore, BNSF does not assume any liability for relocation services provided by or arising out of any of the activities of the individual service providers, their agents, representatives, or employees.

Weatherby is now seeking relocation expenses which BNSF is refusing to pay. (BNSF did not pay any relocation expenses to her husband because he is an hourly employee.) Does she have a valid quasi-contract claim?

Working on the Railroad. a) No, because her salary provides compensation for any value she conferred on BNSF. b) No, because she should have obtained an express promise before assuming she would receive relocation benefits. c) Yes, because she reasonably believed she was contractually entitled to the benefits and conferred a benefit on the railroad in reliance on that belief.

Working on the Railroad. In Weatherby v. Burlington Northern & Santa Fe Railway

Co., 209 F. Supp 2d 1155 (D. Kan. 2002), the district judge ruled that no implied-in-fact contract existed between the employee and the employer regarding the relocation benefits and further that the employee could not recover relocation expenses under a quantum meruit theory. After finding (1) BNSF had never represented to Weatherby that she would receive relocation expenses and (2) other employees at Weatherbys level were transferred at the request of BNSF or otherwise in circumstances different from those of Weatherby, the court concluded there was no implied promise to pay benefits to Weatherby. Under Kansas law, the essential elements of a quantum meruit claim (1) a benefit conferred on the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) acceptance or retention of the benefit by the defendant under circumstances in which such acceptance or retention is not equitable without payment for its value. Haz-Mat Response, Inc. v. Certified Waste Servs. Ltd., 259 Kan. 166, 176, 910 P.2d 839, 845 (1996). even if plaintiff could satisfy the first and second elements, she cannot satisfy the third. The court found no benefit for the BNSF because it had to pay relocation costs to fill the Fort Worth crew planner position which Weatherby vacated (but failed to address the question of whether Weatherbys move was a condition to her husband accepting his transfer). And, to the extent BNSF benefited from retaining her as an employee (given the possibility she would have taken a job with another company in KC), the court held that she was already compensated for that by her salary. Finally, it found no inequities given the circumstances of BNSF accommodating her wish to move with her husband.

Capping Fees. Elizabeth Rosenbaum, a private attorney, was appointed by the juvenile court as guardian ad litem for a minor in October 2003. The guardian statute sets a $1000 cap on fees, but allows a guardian to exceed fee limitations if she proves good cause and obtains approval prior to exceeding the limits. Despite the statutory language, Rosenbaum in the past had been permitted to obtain any necessary orders to exceed statutory fee limitations at the time she submitted her fee claim. In March 2004, Rosenbaum submitted a fee claim for $2,200 along with an application to exceed fee limitations. Her fee claim was reduced to $1000 on the ground that she did not obtain prior approval for exceeding the fee limitations. The reasonableness of her fee claim is undisputed. Rosenbaum has filed suit asking for payment on quantum meruit grounds. What result?

Capping Fees. a) Rosenbaum should recover because she conferred a benefit with a reasonable expectation of being compensated. b) Rosenbaum should not recover because she had the opportunity to contract for her services prior to providing them.

Capping Fees. The juvenile court awarded Rosenbaum the excess fees on a quantum meruit theory, but the Supreme Court of Iowa reversed. (The public defenders office was assigned responsibility for evaluating and paying guardian fee applications.) State Public Defender v. Iowa District Court for Woodbury County, 731 N.W.2d 680 (Iowa 2007). Quantum meruit is a quasicontractual theory of recovery providing that, [when] one person renders services for another which are known and accepted by him, the law implies a promise on his part to pay therefor. Id. At 684 (citations omitted). The court acknowledged that it was tempting to allow Rosenbaum to recover on a quantum meruit theory because of the quality of her work and the public defenders failure to consistently follow the statute. But, the court concluded that quantum meruit cannot be used to supersede the affirmative requirements of a statute. (The courts reasoning essentially allows that recognizing a claim of quantum meruit is within the equitable power of the court, but the court cannot use that power it would supersede clear legislative action.)

Sharing in the Winnings Redux. Wo Sin Chiu was seriously injured in an auto collision on March 27, 1998. Chiu signed a retention agreement with attorney Richard Shapero on April 1, which provided that Shapero would represent Chiu in exchange for a 40% contingency fee. Shapero immediately began working on the matter. On May 7, Chiu discharged Shapero, but rehired him four days later. On July 14, Chiu discharged Shapero for the last time and retained the services of Kenneth Baker. With Bakers assistance, Chiu ultimately obtained a settlement of $175,000. Shapero filed an attorneys lien against the settlement, claiming the 40% contingency fee. Can Shapero recover in quasi-contract?

Sharing in the Winnings Redux. a) Shapero can recover in quasi-contract for the value his work provided to Chiu to avoid unjust enrichment. b) Shapero cannot recover because he could have contracted expressly for the fee he would be do if Chiu fired him before the case settled.

Sharing in the Winnings Redux. The lower court awarded Shapero recovery on a contract theory: the 40% contingency fee less the reasonable cost of services of other attorneys required to complete the contract (here, Baker). The Kentucky Supreme Court reversed and overturned its own precedent, opting to follow the vast majority position that attorneys discharged in such circumstances should recover on a quantum meruit basis rather than a contract basis. Thus, Shapero could recover for the value of any work performed during the two periods that he was retained as Chius counsel. This case offers an opportunity to talk about the general view that clients should have a broad right to discharge attorneys with or without cause. Quantum meruit remains available to attorneys discharged without cause, reflecting the view that it would be unfair for the client retain the value of the service provided by the attorney without compensating him.

Subcontractors Claim. Hy-Brasil Restaurants entered into a contract with Howell Management for the construction of a restaurant and bar, and in September, Howell hired Mike Glynn & Company as a subcontractor to do the plumbing, heating, and air-conditioning work. Mike Glynn had known Hy-Brasils President, Liam Tiernan, for over thirty years. On October 27, Howell breached its contract with Glynn by failing to pay an invoice in full within ten days, and Glynn threatened to walk off the job. Glynn and Tiernan dispute the exact content of their conversation. Glynn claims that Tiernan told him that it was most important that the job be finished before the holidays and promised Glynn that either Tiernan personally, or Hy-Brasil, would pay him if he completed the job. Tiernan denied making any promises to pay Glynn if Howell failed to do so, but admits that he encouraged Glynn to continue to work and explained that a delay past the holidays would work a terrible hardship on Hy-Brasil. Glynn did continue to work and hired additional workers and worked overtime to complete the job before the holidays. If Glynn had left the job when Howell stopped making payment, he would have incurred roughly $5,000 in damages. By remaining, he incurred $42,000. After Howell failed to pay him, Glynn demanded payment from Tiernan and Hy-Brasil, and Tiernan refused to make any payment. Are Tiernan and Hy-Brasil liable in quasi-contract to Glynn?

Subcontractors Claim. a) Yes, because Glynn provided services expecting to be paid and Tiernan encouraged him to do so. b) No, because Glynn had the opportunity to obtain a promise to pay from Tiernan but he did not.

Subcontractors Claim. After a bench trial, the Massachusetts Superior Court Department found Hy-Brasil and Tiernan liable in quantum meruit to Glynn. The trial judge concluded that there was no written or oral contract between Glynn and Tiernan, but that it was uncontested that [Tiernan] accepted the services of [Glynn] with knowledge that [Glynn] expected to be paid by someone. The trial judge reasoned that Glynn incurred an additional eight times the amount of damages as a result of some motivation from the defendants, who were the direct beneficiaries of the completion of the project. It is significant to this Court that the parties involved knew each other for over thirty years, as the trier must consider all relevant circumstances including the situation and the relationship of the parties. Because Tiernan failed to prove that he had paid Howell specifically for the work completed by Glynn, the judge ordered Tiernan and Hy-Brasil to pay Glynn for all outstanding invoices. The Appeals Court upheld the trial judge, decreased the damages award by the $5,000 in damages incurred prior to any encouragement by Tiernan. Mike Glynn & Co. v. Hy-Brasil Restaurants, Inc., --- N.E.2d ----, 2009 WL 3087211 (Mass.App.Ct. 2009)