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Garwood Packaging, Inc., et al. v. Allen Company, Inc., et al. — Seventh Circuit (Aug. 10, 2004)

Factual and Procedural Background

This is a diversity suit governed by Indiana law in which plaintiffs Garwood Packaging, Inc. (GPI) and its two principals (Garwood and McNamara) sued Allen Company (an investment company) and an Allen vice-president, Martin, seeking substantial damages based on promissory estoppel. GPI had developed a packaging system intended to increase the shelf life of fresh meat but had failed in marketing and by 1993 had debts of about $3 million. GPI engaged Martin to help find investors.

Martin told GPI that Allen would consider investing $2 million if another investor matched it, and Allen planned to share half of its projected investment with other investors to reduce its risk. Martin located Hobart Corporation, which was prepared to manufacture $2 million worth of packaging machines for equity, but negotiations stalled over equity allocation and releases from GPI's creditors. Martin repeatedly assured GPI that he would see the deal through "come hell or high water." Eventually Allen decided not to invest because the other investors Allen expected to contribute half of Allen's $2 million backed out, no releases from creditors had been obtained, and no contract had been signed. As a result, the deal collapsed and GPI declared bankruptcy.

GPI sued, asserting promissory estoppel among other claims. The district court granted summary judgment for Allen and dismissed the suit. On appeal the Seventh Circuit first addressed timeliness of the appeal and then reached the merits, affirming the district court's grant of summary judgment.

Legal Issues Presented

  1. Was the notice of appeal filed by GPI timely despite procedural complications involving an undismissed (but never served) defendant and a subsequent late-filed notice of appeal?
  2. On the merits, did Martin's statements to GPI—including his repeated assurances and the phrase "come hell or high water"—constitute enforceable promises under the doctrine of promissory estoppel (i.e., were they promises that induced reasonable reliance such that Allen could be bound)?

Arguments of the Parties

Appellant's (GPI's) Arguments

  • Martin made unequivocal promises that Allen would invest $2 million and that he would see the deal through "come hell or high water," and those promises induced GPI and its principals to incur costs and forgo other opportunities.
  • Under Indiana law and the doctrine of promissory estoppel, promises that induce reasonable reliance are legally enforceable even if they do not constitute fully formed contracts; therefore GPI is entitled to relief based on reliance induced by Martin's assurances.

The opinion does not contain a detailed account of Allen's specific framed arguments in the style of separate party briefs; instead the court analyzes the legal sufficiency of GPI's promissory-estoppel claim and the reasonableness of the plaintiffs' understanding of Martin's statements.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
United States v. Brown, 133 F.3d 993 (7th Cir. 1998) Illustrates that the district court's extension of time to file a notice of appeal is discretionary. Cited to show the discretionary nature of Rule 4(a)(5)(A)(ii) relief and that where a district court fails to indicate it exercised discretion a remand may be required.
Brotherhood of Ry. Carmen v. Chicago N. W. Transp. Co., 964 F.2d 684 (7th Cir. 1992) Another example supporting that extension of time is a discretionary ruling. Used with other cases to explain that absent an indication discretion was exercised, remand may be necessary.
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355 (2d Cir. 2003) Shows that extending time for appeal is discretionary. Cited as an authority that the ruling is discretionary, supporting the general principle on Rule 4(a)(5) relief.
Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132 (7th Cir. 1996) Explains remand is necessary if the district court did not indicate it exercised discretion and the issue is not one-sided. Cited to explain the circumstances under which remand is required for a court's failure to make necessary findings about excusable neglect.
Manley v. City of Chicago, 236 F.3d 392 (7th Cir. 2001) Addresses finality of judgments when a defendant was never served and therefore never became a party. Applied to conclude that the district court's judgment was final and appealable because the remaining defendant had never been served and therefore had not become a party.
Ordower v. Feldman, 826 F.2d 1569 (7th Cir. 1987) Discusses finality where an unserved defendant could not be considered a party. Cited to support the proposition that a judgment may be final despite an undismissed defendant who was never served.
Federal Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469 (5th Cir. 1990) Examines similar finality principles regarding unserved defendants. Used with other cases to support that the judgment was final because the undismissed defendant had never been served.
FirstTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991) Interprets Fed. R. App. P. 4(a)(2): a notice of appeal filed after an announcement of decision but before entry of judgment is treated as filed when judgment is entered. Relied upon to hold that the first (premature) notice of appeal took effect when the last defendant was dismissed and the decision became final.
Otis v. City of Chicago, 29 F.3d 1159 (7th Cir. 1994) (en banc) Interprets Rule 4(a)(2) and its treatment of premature notices of appeal. Cited to support that a premature notice filed after announcement but before entry of judgment is treated as filed on the entry date.
Brown v. Branch, 758 N.E.2d 48 (Ind. 2001) States that promissory estoppel makes a promise that induces reasonable reliance enforceable under Indiana law. Used to state the governing law on promissory estoppel under Indiana law as applied to GPI's claim.
First Nat'l Bank of Logansport v. Logan Mfg. Co., 577 N.E.2d 949 (Ind. 1991) Describes promissory estoppel and the role of reliance as a substitute for consideration under Indiana law. Cited for the proposition that reliance can substitute for consideration and that Indiana may recognize promises that are not enforceable as contracts under promissory estoppel.
Consolidation Services, Inc. v. KeyBank Nat'l Ass'n, 185 F.3d 817 (7th Cir. 1999) Discusses promissory estoppel and reliance under Indiana-law-based disputes. Used to support the view that reliance may substitute for consideration in commercial contexts.
Porter v. Commissioner, 60 F.2d 673 (2d Cir. 1932) (Hand, J.) Referenced regarding reasons for requiring consideration as evidence of a genuine promise. Cited to illustrate historical rationale for consideration as evidence that a promise was intended to be binding.
Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126 (7th Cir. 1997) Discusses the evidentiary role of consideration in identifying enforceable promises. Quoted to support the point that consideration serves as evidence a promise was intended to be relied upon as a commitment.
Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995) Referenced on the evidentiary function of consideration and enforcement of promises. Cited in the discussion of why reliance can stand in for consideration.
Krell v. Codman, 28 N.E. 578 (Mass. 1891) (Holmes, J.) Historical contract law authority referenced in the discussion of consideration and form. Used as a classic example in the court's discussion of contract doctrines and evidence of promises.
Yontz v. BMER Enterprises, Inc., 632 N.E.2d 527 (Ohio App. 1993) Supports the idea that actual (costly) reliance is substitute evidence of a genuine promise. Cited to support the proposition that costly reliance can indicate the existence of an enforceable promise.
Security Bank Trust Co. v. Bogard, 494 N.E.2d 965 (Ind. App. 1986) Explains that the promise relied upon for estoppel must be definite and not merely a statement of intention. Cited to show the requirement that a promissory-estoppel claim rests on a statement that is clearly a promise, not an intention.
Wood v. Mid-Valley, Inc., 942 F.2d 425 (7th Cir. 1991) Addresses the definiteness requirement for promises under Indiana law. Cited to support the statement that promissory-estoppel claims need a definite promise.
Major Mat Co. v. Monsanto Co., 969 F.2d 579 (7th Cir. 1992) Discusses the line between promises and nonbinding statements in estoppel contexts. Used to illustrate that a promise must be distinguishable from mere expressions of intent or prediction.
Janke Construction Co. v. Vulcan Materials Co., 527 F.2d 772 (7th Cir. 1976) Example of cases holding that promissory-estoppel terms need not be as precise as contractual terms. Cited to show that promissory estoppel can enforce promises even where contractual terms would be insufficiently definite.
Hawkins Construction Co. v. Reiman Corp., 511 N.W.2d 113 (Neb. 1994) Another example where estoppel enforces promises less definite than contract terms. Used to demonstrate that promissory estoppel tolerates less precise terms than contract enforcement.
Neiss v. Ehlers, 899 P.2d 700 (Ore. App. 1995) Illustrates that promissory estoppel may apply where contract terms are insufficient. Cited in the court's discussion of the relative definiteness required for estoppel versus contract.
Rosnick v. Dinsmore, 457 N.W.2d 793 (Neb. 1990) Explains that promissory estoppel typically provides reliance damages and does not always aim to give benefit-of-the-bargain damages. Quoted to present an explanation of why estoppel damages are often framed as reliance damages.
Goldstick v. ICM Realty, 788 F.2d 456 (7th Cir. 1986) Shows that when a promise is clear, courts will often award its value, akin to expectation damages. Cited to correct the premise that estoppel never awards expectation-equivalent relief; used to explain damages principles.
Walters v. Marathon Oil Co., 642 F.2d 1098 (7th Cir. 1981) Discusses the rationale for awarding benefit-of-the-bargain-type relief as proxy for foregone opportunities. Used to support the court's discussion of damages measures in promissory estoppel cases.
Mays v. Trump Indiana, Inc., 255 F.3d 351 (7th Cir. 2001) Notes that vaguer alleged promises are less likely to be found to be promises. Cited to support the proposition that extreme vagueness undermines promissory-estoppel claims.
All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862 (7th Cir. 1999) Addresses the need for a promise to be sufficiently clear to be enforceable. Used to reinforce that the vagueness of a statement affects whether it is a legally enforceable promise.
McInerney v. Charter Golf, Inc., 680 N.E.2d 1347 (Ill. 1997) Discusses how a sophisticated party's understanding may affect whether a statement is reasonably understood as a promise. Cited to illustrate that a financially sophisticated promisee may not reasonably interpret optimistic statements as enforceable promises.
Gruen Industries, Inc. v. Biller, 608 F.2d 274 (7th Cir. 1979) Examines reasonable reliance and the interpretation of statements as promises. Used to support the court's point that sophistication and context affect whether reliance was on a promise.
Clardy Mfg. Co. v. Marine Midland Bus. Loans Inc., 88 F.3d 347 (5th Cir. 1996) Discusses the role of expectations and probability in assessing whether reliance is based on a promise versus a risked gamble. Cited to illustrate that reliance may be reasonable even if it is a calculated gamble rather than reliance on an enforceable promise.
Mason Dixon Lines, Inc. v. Glover, 975 F.2d 1298 (7th Cir. 1992) Explains that questions of fact not susceptible to only one answer normally preclude summary judgment. Cited to explain the standard for deciding when a factual question (here, understanding whether a statement was a promise) can be resolved on summary judgment.
J.C. Wyckoff Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474 (6th Cir. 1991) Also addresses when fact questions may be decided as a matter of law if only one reasonable conclusion exists. Cited to support the court's conclusion that the case could be resolved by summary judgment because the question had only one reasonable answer.

Court's Reasoning and Analysis

The court proceeded in two major parts: first resolving a threshold jurisdictional/procedural issue about timeliness of the appeal, and second addressing the substantive promissory-estoppel claim on the merits.

Timeliness of the Appeal

  • The court noted that GPI filed an initial notice of appeal within 30 days of the entry of judgment, but at that time the judgment had not dismissed the suit as to one defendant, so the judgment appeared not to be final. GPI later dismissed the remaining defendant and filed a new notice of appeal more than 30 days after that dismissal. The district judge permitted filing a late notice but did not make the required finding of "excusable neglect."
  • The court observed that a district court may extend the time for filing a notice of appeal only upon a showing of "excusable neglect or good cause" under Fed. R. App. P. 4(a)(5)(A)(ii), and that such rulings are discretionary. It cited authorities showing discretion and that failure to show the exercise of discretion can require remand.
  • However, the Seventh Circuit found remand unnecessary for two alternative reasons: (1) the "remaining" defendant had never been served and therefore never became a party, so the judgment as entered was final and appealable when entered; and (2) Rule 4(a)(2) treats a notice of appeal filed after announcement of decision but before entry of judgment as filed upon entry, and GPI had filed a timely premature notice of appeal after the decision had been announced. Thus the appeal was timely.

Merits — Promissory Estoppel Analysis

  • The court framed the core legal question as whether Martin's assurances (including "come hell or high water") were enforceable promises under promissory estoppel that induced reasonable reliance by GPI.
  • The court summarized the doctrinal background: promissory estoppel allows reliance to substitute for consideration so that a promise that induces reasonable reliance can be enforced; in commercial settings, actual costly reliance is persuasive evidence that a promise was intended to be binding.
  • The opinion explained distinctions between promissory estoppel and breach of contract: while estoppel requires that the promise be definite (clearly a promise), its terms need not be as detailed as required for contract enforcement; courts may award expectation-like relief if the promise is clear, otherwise reliance damages are typical.
  • The court emphasized that the crucial element is not merely that the promisee relied, but that the promisee reasonably understood the statement to be a legal commitment rather than an expression of hope, prediction, or puffery. In short, the plaintiff must have reasonably relied on the statement's being a promise.
  • Applying these principles to the facts, the court observed that GPI and its principals did incur costly reliance (moved to Ohio, forgave personal loans, forwent other opportunities) and that, accepting GPI's evidence for summary-judgment purposes, Martin repeatedly confirmed the deal would go through. But the controlling question was whether such statements could reasonably have been understood as legally binding promises by the primary recipient, McNamara, who was a former investment banker and therefore highly financially sophisticated.
  • The court concluded that McNamara could not reasonably have understood Martin literally (e.g., that the deal would occur even in the face of impossible obstacles such as a tsunami). McNamara was aware of the numerous contingencies (Hobart's demands, creditor releases including the IRS, and the many ways a rescue deal can fail) and therefore could not reasonably have interpreted Martin's statements as legally enforceable promises rather than expressions of determination or optimism.
  • Finally, the court addressed the procedural posture: usually whether a statement was reasonably understood as a promise is a factual question for a jury, but if only one reasonable conclusion exists, summary judgment is appropriate. The court held this was such a case and affirmed the district court's grant of summary judgment for Allen.

Holding and Implications

Holding: AFFIRMED.

Implications:

  • The Seventh Circuit affirmed the district court's summary judgment in favor of Allen, meaning GPI's promissory-estoppel claim was dismissed and the judgment for the defendants stands.
  • The court held that the appeal was timely, both because the undismissed defendant had never been served (so the judgment was final) and because Rule 4(a)(2) treated GPI's earlier premature notice of appeal as effective when the judgment became final.
  • The court concluded that, given the sophistication of GPI's principal (McNamara) and the contingencies known to him, Martin's statements could not reasonably have been understood as legal promises rather than expressions of optimism or determination; thus promissory estoppel did not apply. Because the court found only one reasonable conclusion on this legal-fact question, summary judgment was appropriate.
  • No broader new legal rule or precedent was announced; the decision applies existing promissory-estoppel and procedural principles to the facts and affirms dismissal of the plaintiffs' claim.

GARWOOD PACKAGING, INC., et al., Plaintiffs-Appellants v. ALLEN COMPANY, INC., et al., Defendants-Appellees.

POSNER, Circuit Judge.

This is a diversity suit, governed by Indiana law, in which substantial damages are sought on the basis of promissory estoppel. The suit pits Garwood Packaging, Inc., which created a packaging system designed to increase the shelf life of fresh meat, and its two principals, Garwood and McNamara, against Allen Company (an investment company) and a vice-president of Allen named Martin. We shall refer to the plaintiffs collectively as "GPI" and the defendants collectively as "Allen." The district court granted summary judgment in favor of Allen and dismissed the suit.

There is a threshold question: whether GPI's appeal was timely. The notice of appeal was filed within 30 days of the entry of judgment, but the judgment had not dismissed the suit as to one of the defendants and was therefore, on its face anyway, not final and appealable. GPI then dismissed its suit against the remaining defendant and filed a new notice of appeal, but did so more than 30 days after the dismissal of that defendant had removed the cloud on the finality of the district court's judgment. The district judge granted GPI's motion to file a late notice of appeal, but failed in doing so to make a finding that GPI's tardiness had been due to "excusable neglect." A district court may extend the time for filing a notice of appeal only if the appellant demonstrates to the court's satisfaction "excusable neglect or good cause." Fed.R.App.P. 4(a)(5)(A)(ii). The ruling is regarded as discretionary, e.g., United States v. Brown, 133 F.3d 993, 996 (7th Cir. 1998); Brotherhood of Ry. Carmen v. Chicago North Western Transportation Co., 964 F.2d 684, 686 (7th Cir. 1992); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 362 (2d Cir. 2003), and so when there is no indication that discretion was actually exercised, a remand is necessary unless the issue is so one-sided (which is not the case here) that it could have been resolved only one way. Cf. Prizevoits v. Indiana Bell Tel. Co., 76 F.3d 132, 133-34 (7th Cir. 1996).

No remand is necessary here on a different ground, or rather grounds. One is that the notice of appeal may not have been premature, because the judgment may already have been final. The defendant who was not formally dismissed from the case at the same time as the other defendants had never been served with the complaint, and it was much too late to serve him by the time the judgment was entered against the other defendants. Since he had never become and never could become a party, the judgment that did not mention him was nevertheless final, complete, and appealable. Manley v. City of Chicago, 236 F.3d 392, 395 (7th Cir. 2001); Ordower v. Feldman, 826 F.2d 1569, 1571-73 (7th Cir. 1987); Federal Savings Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469 (5th Cir. 1990), and cases cited there.

It might be objected that these cases conflate a good reason for entering a final decision with entry of the final decision itself. Suppose a plaintiff filed suit and then appealed the same day, before the district court even looked at the case, and defended his precipitate action by saying that he knew he would lose in the district court under circuit precedent (which he would urge the court of appeals to overrule, but which would bind the district court) and since his suit was doomed in the district court it was as if there were a final judgment and he should therefore be able to appeal immediately. But in the cases that we have cited, as in the present case, the defendant who hadn't been dismissed with the others had never actually become a party because he had never been served. The significance of the fact that he could no longer be served was that the dismissal of the suit could not be regarded as a dismissal without prejudice as to him; it was therefore securely final.

The alternative ground for regarding the decision of the district court as final and appealable is based on Rule 4(a)(2) of the Federal Rules of Appellate Procedure. The rule provides that a notice of appeal filed after the court announces its decision but before the judgment is entered shall be treated as if filed when the judgment was entered. In other words, once the decision is announced, a premature notice of appeal lingers until the final decision is entered. FirstTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991); Otis v. City of Chicago, 29 F.3d 1159, 1166 (7th Cir. 1994) (en banc). Here a decision was announced and a notice of appeal filed (the first notice). It took effect when, the last defendant having been dismissed, the decision became final.

So the appeal was timely and we can proceed to the merits.

GPI had flopped in marketing its food-packaging system and by 1993 had run up debts of $3 million and was broke. It engaged Martin to help find investors. After an initial search turned up nothing, Martin told GPI that Allen (Martin's employer, remember) would consider investing $2 million of its own money in GPI if another investor could be found who would make a comparable investment. The presence of the other investor would reduce the risk to Allen not only by augmenting GPI's assets but also by validating Allen's judgment that GPI might be salvageable, because it would show that someone else was also willing to bet a substantial sum of money on GPI's being salvageable. To further reduce its risk Allen decided to off-load half its projected $2 million investment on other investors.

Martin located a company named Hobart Corporation that was prepared to manufacture $2 million worth of GPI packaging machines in return for equity in the company. Negotiations with Hobart proved arduous, however. There were two sticking points: the amount of equity that Hobart would receive and the obtaining of releases from GPI's creditors. Hobart may have been concerned that unless the creditors released GPI the company would fail and Hobart wouldn't be able to sell the packaging systems that it manufactured. Or it may have feared that the creditors would assert liens in the systems. All that is clear is that Hobart insisted on releases. They were also important to the other investors whom Allen wanted to bring into the deal, the ones who would contribute half of Allen's offered $2 million.

Martin told Garwood and McNamara (GPI's principals) that he would see that the deal went through "come hell or high water." Eventually, however, Allen decided not to invest, the deal collapsed, and GPI was forced to declare bankruptcy. The reason for Allen's change of heart was that the investors who it thought had agreed to put up half of "Allen's" $2 million had gotten cold feet. When Allen withdrew from the deal, no contract had been signed and no agreement had been reached on how much stock either Allen or Hobart would receive in exchange for their contributions to GPI. Nor had releases been obtained from the creditors.

GPI's principal claim on appeal, and the only one we need to discuss (the others fall with it), is that Martin's unequivocal promise to see the deal through to completion bound Allen by the doctrine of promissory estoppel, which makes a promise that induces reasonable reliance legally enforceable. Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001); First National Bank of Logansport v. Logan Mfg. Co., 577 N.E.2d 949, 954 (Ind. 1991); Consolidation Services, Inc. v. KeyBank National Ass'n, 185 F.3d 817, 822 (7th Cir. 1999) (Indiana law); Restatement (Second) of Contracts § 90(1) (1981); 1 E. Allan Farnsworth, Farnsworth on Contracts § 2.19 (3d ed. 2004). If noncontractual promises were never enforced, reliance on their being enforceable would never be reasonable, so let us consider why the law might want to allow people to rely on promises that do not create actual contracts and whether the answer can help GPI.

The simplest answer to the "why" question is that the doctrine merely allows reliance to be substituted for consideration as the basis for making a promise enforceable. First National Bank of Logansport v. Logan Mfg. Co., supra, 577 N.E.2d at 954; Workman v. United Parcel Service, Inc., 234 F.3d 998, 1001 (7th Cir. 2000); Consolidation Services, Inc. v. KeyBank National Ass'n, supra, 185 F.3d at 822; Porter v. Commissioner, 60 F.2d 673, 675 (2d Cir. 1932) (L. Hand, J.). On this view promissory estoppel is really just a doctrine of contract law. The most persuasive reason for the requirement of consideration in the law of contracts is that in a system in which oral contracts are enforceable — and by juries, to boot — the requirement provides some evidence that there really was a promise that was intended to be relied on as a real commitment. Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1131 (7th Cir. 1997); Scholes v. Lehmann, 56 F.3d 750, 756 (7th Cir. 1995); Krell v. Codman, 28 N.E. 578 (Mass. 1891) (Holmes, J.); Lon L. Fuller, "Consideration and Form," 41 Colum. L. Rev. 799, 799-801 (1941). Actual reliance, in the sense of a costly change of position that cannot be recouped if the reliance turns out to have been misplaced, is substitute evidence that there may well have been such a promise. Consolidation Services, Inc. v. KeyBank National Ass'n, supra, 185 F.3d at 822; Yontz v. BMER Interprises, Inc., 632 N.E.2d 527, 530 (Ohio App. 1993). The inference is especially plausible in a commercial setting, because most businesspeople would be reluctant to incur costs in reliance on a promise that they believed the promisor didn't consider himself legally bound to perform.

In other words, reasonable reliance is seen as nearly as good a reason for thinking there really was a promise as bargained-for reliance is. In many such cases, it is true, no promise was intended, or intended to be legally enforceable; in those cases the application of the doctrine penalizes the defendant for inducing the plaintiff to incur costs of reliance. The penalty is withheld if the reliance was unreasonable; for then the plaintiff's wound was self-inflicted — he should have known better than to rely.

A relevant though puzzling difference between breach of contract and promissory estoppel as grounds for legal relief is that while the promise relied on to trigger an estoppel must be definite in the sense of being clearly a promise and not just a statement of intentions, Security Bank Trust Co. v. Bogard, 494 N.E.2d 965, 968-69 (Ind.App. 1986); Wood v. Mid-Valley Inc., 942 F.2d 425, 428 (7th Cir. 1991) (Indiana law); Major Mat Co. v. Monsanto Co., 969 F.2d 579, 582-83 (7th Cir. 1992), its terms need not be as clear as a contractual promise would have to be in order to be enforceable. E.g., Janke Construction Co. v. Vulcan Materials Co., 527 F.2d 772, 777 (7th Cir. 1976) (Wisconsin law); Hawkins Construction Co. v. Reiman Corp., 511 N.W.2d 113, 117 (Neb. 1994); Neiss v. Ehlers, 899 P.2d 700, 707 (Ore.App. 1995). Indiana may go furthest in this direction: "Even though there were insufficient terms for the enforcement of an express oral contract, and unfulfilled pre-existing conditions prohibiting recovery for breach of a written contract . . ., we are not precluded from finding a promise under these circumstances. Indeed, it is precisely under such circumstances, where a promise is made but which is not enforceable as a `contract,' that the doctrine of promissory estoppel is recognized." First National Bank of Logansport v. Logan Mfg. Co., supra, 577 N.E.2d at 955.

The reason for this difference between breach of contract and promissory estoppel is unclear. A stab at an explanation is found in Rosnick v. Dinsmore, 457 N.W.2d 793, 800 (Neb. 1990), where the court said that "promissory estoppel only provides for damages as justice requires and does not attempt to provide the plaintiff damages based upon the benefit of the bargain. The usual measure of damages under a theory of promissory estoppel is the loss incurred by the promisee in reasonable reliance on the promise, or `reliance damages.' Reliance damages are relatively easy to determine, whereas the determination of `expectation' or `benefit of the bargain' damages available in a contract action requires more detailed proof of the terms of the contract." The only problem with this explanation is that its premise is mistaken; if the promise giving rise to an estoppel is clear, the plaintiff will usually be awarded its value, which would be the equivalent of the expectation measure of damages in an ordinary breach of contract case. Goldstick v. ICM Realty, 788 F.2d 456, 463-64 (7th Cir. 1986); Restatement, supra, § 90 comment d. The rationale in both cases is that the benefit of the contract to the promisee is a good proxy for the opportunities that he forewent in making the contract. Walters v. Marathon Oil Co., 642 F.2d 1098, 1100-01 (7th Cir. 1981); L.L. Fuller William R. Perdue, Jr., "The Reliance Interest in Contract Damages: 1," 46 Yale L.J. 52, 60 (1936) ("physicians with an extensive practice often charge their patients the full office call fee for broken appointments. Such a charge looks on the face of things like a claim to the promised fee; it seems to be based on the `expectation interest'. Yet the physician making the charge will quite justifiably regard it as compensation for the loss of the opportunity to gain a similar fee from a different patient"). Of course, if the promise is unclear, damages will be limited to expenses incurred in reasonable reliance on the vague promise, First National Bank of Logansport v. Logan Mfg. Co., supra, 577 N.E.2d at 952, 955-56, but that would be equally true in a breach of contract case in which the promise that the defendant had broken was unclear.

But even though the court is "not precluded from finding a promise" by its vagueness, id. at 955, the vaguer the alleged promise the less likely it is to be found to be a promise. Mays v. Trump Indiana, Inc., 255 F.3d 351, 358-59 (7th Cir. 2001) (Indiana law); All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 868-69 (7th Cir. 1999); Restatement, supra, § 33(3) and comment f. And if it is really vague, the promisee would be imprudent to rely on it — he wouldn't know whether reliance was worthwhile. The broader principle, which the requirement that the promise be definite and at least minimally clear instantiates, is that the promisee's reliance must be reasonable; if it is not, then not only is he the gratuitous author of his own disappointment, but probably there wasn't really a promise, or at least a promise intended or likely to induce reliance. The "promise" would have been in the nature of a hope or possibly a prediction rather than a commitment to do something within the "promisor's" power to do ("I promise it will rain tomorrow"); and the "promisee" would, if sensible, understand this. He would rely or not as he chose but he would know that he would have to bear the cost of any disappointment.

We note, returning to the facts of this case, that there was costly reliance by GPI, which forewent other opportunities for salvation, and by Garwood and McNamara, who moved from Indiana to Ohio to be near Hobart's plant where they expected their food-packaging system to be manufactured, and who forgave their personal loans to GPI and incurred other costs as well. The reliance was on statements by Martin, of which "come hell or high water" was the high water mark but is by no means an isolated example. If GPI's evidence is credited, as it must be in the procedural posture of the case, Martin repeatedly confirmed to GPI that the deal would go through, that Allen's commitment to invest $2 million was unconditional, that the funding would be forthcoming, and so on; and these statements induced the plaintiffs to incur costs they would otherwise not have done.

But were these real promises, and likely to be understood as such? Those are two different questions. A person may say something that he intends as merely a prediction, or as a signal of his hopes or intentions, but that is reasonably understood as a promise, and if so, as we know (this is the penal or deterrent function of promissory estoppel), he is bound. Tipton County Farm Bureau Cooperative Ass'n, Inc. v. Hoover, 475 N.E.2d 38, 42 (Ind.App. 1985). But what is a reasonable, and indeed actual, understanding will often depend on the knowledge that the promisee brings to the table. McNamara, with whom Martin primarily dealt, is a former investment banker, not a rube. He knew that in putting together a deal to salvage a failing company there is many a slip `twixt cup and lips. Unless blinded by optimism or desperation he had to know that Martin could not mean literally that the deal would go through "come hell or high water," since if Satan or a tsunami obliterated Ohio that would kill the deal. Even if Allen had dug into its pockets for the full $2 million after the investors who it had hoped would put up half the amount defected, the deal might well not have gone through because of Hobart's demands and because of the creditors. GPI acknowledges that the Internal Revenue Service, one of its largest creditors, wouldn't give a release until paid in full. Some of GPI's other creditors also intended to fight rather than to accept a pittance in exchange for a release. Nothing is more common than for a deal to rescue a failing company to fall apart because all the creditors' consent to the deal cannot be obtained — that is one of the reasons for bankruptcy law. Again these were things of which McNamara was perfectly aware.

The problem, thus, is not that Martin's promises were indefinite, which they were not if GPI's evidence is credited, but that they could not have been reasonably understood by the persons to whom they were addressed (mainly McNamara, the financial partner in GPI) to be promises rather than expressions of optimism and determination. Security Bank Trust Co. v. Bogard, supra, 494 N.E.2d at 968-69; Workman v. United Parcel Service, Inc., supra, 234 F.3d at 1001-02; Wood v. Mid-Valley Inc., supra, 942 F.2d at 428; Major Mat Co. v. Monsanto Co., supra, 969 F.2d at 582-83. To move to Ohio, to forgive personal loans, to forgo other searches for possible investors, and so forth were in the nature of gambles on the part of GPI and its principals. They may have been reasonable gambles, in the sense that the prospects for a successful salvage operation were good enough that taking immediate, even if irrevocable, steps to facilitate and take advantage of the expected happy outcome was prudent. But we often reasonably rely on things that are not promises. A farmer plants his crops in the spring in reasonable reliance that spring will be followed by summer rather than by winter. There can be reasonable reliance on statements as well as on the regularities of nature, but if the statements are not reasonably understood as legally enforceable promises there can be no action for promissory estoppel.

Suppose McNamara thought that there was a 50 percent chance that the deal would go through and believed that reliance on that prospect would cost him $100,000, but also believed that by relying he could expect either to increase the likelihood that the deal would go through or to make more money if it did by being able to start production sooner and that in either event the expected benefit of reliance would exceed $100,000. Then his reliance would be reasonable even if not induced by enforceable promises. The numbers are arbitrary but the example apt. GPI and its principals relied, and may have relied reasonably, but they didn't rely on Martin's "promises" because those were not promises reasonably understood as such by so financially sophisticated a businessman as McNarama. McInerney v. Charter Golf, Inc., 680 N.E.2d 1347, 1352-53 (Ill. 1997); Gruen Industries, Inc. v. Biller, 608 F.2d 274, 281-82 (7th Cir. 1979); Clardy Mfg. Co. v. Marine Midland Business Loans Inc., 88 F.3d 347, 358, 360-61 (5th Cir. 1996). So we see now that the essence of the doctrine of promissory estoppel is not that the plaintiff have reasonably relied on the defendant's promise, but that he have reasonably relied on its being a promise in the sense of a legal commitment, and not a mere prediction or aspiration or bit of puffery.

One last point. Ordinarily the question whether a plaintiff reasonably understood a statement to be a promise is a question of fact and so cannot be resolved in summary judgment proceedings. But if it is clear that the question can be answered in only one way, there is no occasion to submit the question to a jury. See Mason Dixon Lines, Inc. v. Glover, 975 F.2d 1298, 1303-05 (7th Cir. 1992); J.C. Wyckoff Associates, Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1493 (6th Cir. 1991). This, we believe, is such a case.

AFFIRMED.

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GARWOOD PACKAGING v. ALLEN CO
(Aug 10, 2004)