that a charitable subscription is enforceable without consideration if the charity changes position in reliance on a donor's promise to contribute. Here, it was not the Foundation that allegedly relied on von Kaulbach's promise; indeed, the Foundation did not and does not exist. It was the prospective trustees who allegedly relied.
The issue is not whether, if the facts alleged by defendants are true, and assuming New York law applies, there was some contractual obligation from von Kaulbach to defendants; assuredly, there was. Rather, the issue is whether on these facts defendants would be entitled to the benefit of their alleged bargain, and thus to compel von Kaulbach to authorize Quappi's executors to fund the Foundation.
Although at one time only conventional contract remedies were employed when a plaintiff proved detrimental reliance on a promise, see, e.g., Williston, IV American Law Institute Proceedings, Appendix p. 103 (1926), recent authority appears to follow Professor Corbin's advice to "make the remedy fit the crime," with the result that remedies are tailored to suit the circumstances of the case. Corbin on Contracts One Volume Edition § 205 at 294 (1952). In New York the proper measure of damages to a plaintiff who alleges detrimental reliance is the value of plaintiff's performance:
Whether denominated "acting in reliance" or "restitution," all cocur that a promisee who partially performs (e.g., by doing work in a building or at an accelerated pace) at a promisor's request should be allowed to recover the fair and reasonable value of the performance rendered, regardless of the enforceability of the original agreement.
Farash v. Sykes Datatronics, Inc., 59 N.Y.2d 500, 506, 465 N.Y.S.2d 917, 452 N.E.2d 1245 (1983). Thus, although the plaintiff in Sykes was barred by the statute of frauds from enforcing an alleged contract to extend a lease, despite alleged detrimental reliance, he was not barred from seeking the value of the work he performed assertedly as a result of that reliance.
Similarly here, for the reasons set forth above in section IV, although defendants are barred from enforcing von Kaulbach's uncompleted transfer, they may be able to recover the value of what they say were their services to her as a result of their alleged reliance. However, that measure of damages is not at issue in this action. All that is at issue is whether the Foundation Trust agreement may be enforced as written. For the above reasons, it may not.
Accordingly, plaintiff's motion for summary judgment declaring the Foundation Trust agreement unenforceable is granted.
Michael B. Mukasey
U.S. District Judge
Dated: New York, New York
January 30, 1992
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