Westlaw Delivery Summary Report for PATRON ACCESS,-

Date/Time of Request: Monday, August 30, 2010 11:48 Eastern

Client Identifier: PATRON ACCESS
Database: NJ-CS
Citation Text: 216 A.2d 246
Lines: 395
Documents: 1
Images: 0

10.3 Firm Offer Contract Sales and Lease Contracts: Formation, title and Risk

The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
West and their affiliates.
216 A.2d 246 Page 1
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)

343I Requisites and Validity of Contract

343k23 Offer to Buy or Order for Goods
Superior Court of New Jersey 343k23(2) k. Withdrawal or Counter-
Appellate Division. mand. Most Cited Cases
E. A. CORONIS ASSOCIATES, a corporation of Uniform Commercial Code section dealing with
the State of New Jersey, Plaintiff-Respondent, signed offer to buy or sell which by its terms as-
v. sures that it will be held open reverses common law
M. GORDON CONSTRUCTION CO., a corpora- rule that an offer not supported by consideration
tion of the State of New Jersey, Defendant-Appel- can be revoked at any time prior to acceptance.
lant. N.J.S. 12A:2-205, N.J.S.A.
No. A-1005.
[2] Contracts 95 19
Argued Nov. 15, 1965.
Decided Jan. 12, 1966. 95 Contracts
95I Requisites and Validity
Action respecting general contractor's counterclaim 95I(B) Parties, Proposals, and Acceptance
for breach of contract by subcontractor. The Superi- 95k19 k. Revocation or Withdrawal of
or Court, Law Division, entered summary judgment Offer. Most Cited Cases
on cross-motions therefor in favor of subcontractor Subcontractor's letter to contractor which stated bid
and the general contractor appealed. The Superior but which gave no assurance that bid would be held
Court, Appellate Division, Collester, J.A.D., held open did not come within purview of statute stating
that doctrine of promissory estoppel could apply to that a signed written offer which by its terms gives
require subcontractor to perform in accordance with assurance that it will be held open is not revocable
its bid which was submitted to general contractor for lack of consideration during time stated or for a
which acted thereon in submitting its bid and which reasonable time. N.J.S. 12A:2-205, N.J.S.A.
was awarded contract prior to subcontractor's at-
tempt to withdraw bid, if general contractor could [3] Estoppel 156 85
establish the essentials of a cause of action based
on promissory estoppel. 156 Estoppel
156III Equitable Estoppel
Reversed and remanded. 156III(B) Grounds of Estoppel
156k82 Representations
West Headnotes 156k85 k. Future Events; Promissory
Estoppel. Most Cited Cases
[1] Sales 343 22(2)
Generally, estoppel only applies to representations
343 Sales of facts past or present.
343I Requisites and Validity of Contract
[4] Estoppel 156 85
343k22 Offer to Sell
343k22(2) k. Withdrawal of Offer. Most 156 Estoppel
Cited Cases 156III Equitable Estoppel
156III(B) Grounds of Estoppel
Sales 343 23(2)
156k82 Representations
343 Sales 156k85 k. Future Events; Promissory
Estoppel. Most Cited Cases

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

216 A.2d 246 Page 2
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)

Significant function of promissory estoppel is to contractor's part and that there was detriment to
apply an estoppel to representations or promises as general contractor.
to future events.
[8] Judgment 228 181(15.1)
[5] Estoppel 156 85
228 Judgment
156 Estoppel 228V On Motion or Summary Proceeding
156III Equitable Estoppel 228k181 Grounds for Summary Judgment
156III(B) Grounds of Estoppel 228k181(15) Particular Cases
156k82 Representations 228k181(15.1) k. In General. Most
156k85 k. Future Events; Promissory Cited Cases
Estoppel. Most Cited Cases (Formerly 228k181(15))
Given an appropriate factual situation, doctrine of Elements of promissory estoppel are essentially
promissory estoppel applies. factual and inappropriate to a summary judgment.
R.R. 4:58-3.
[6] Estoppel 156 85
[9] Estoppel 156 116
156 Estoppel
156III Equitable Estoppel 156 Estoppel
156III(B) Grounds of Estoppel 156III Equitable Estoppel
156k82 Representations 156III(F) Evidence
156k85 k. Future Events; Promissory 156k116 k. Presumptions and Burden of
Estoppel. Most Cited Cases Proof. Most Cited Cases
Doctrine of promissory estoppel could apply to re- General contractor, attempting to invoke doctrine of
quire subcontractor to perform in accordance with promissory estoppel against subcontractor which
its bid which was submitted to general contractor had attempted to withdraw bid, was required to
which acted thereon in submitting its bid and which show that subcontractor could reasonably expect
was awarded contract prior to subcontractor's at- general contractor to rely on bid and this in turn
tempt to withdraw bid, if general contractor could would depend on subcontractor's actual knowledge
establish the essentials of a cause of action based or custom and usage in the trade.
on promissory estoppel.
[10] Estoppel 156 87
[7] Estoppel 156 116
156 Estoppel
156 Estoppel 156III Equitable Estoppel
156III Equitable Estoppel 156III(B) Grounds of Estoppel
156III(F) Evidence 156k82 Representations
156k116 k. Presumptions and Burden of 156k87 k. Relying and Acting on Rep-
Proof. Most Cited Cases resentations. Most Cited Cases
General contractor to successfully establish a cause If subcontractor's bid was so low as to put general
of action based on promissory estoppel against sub- contractor on notice that it was erroneous, general
contractor, which had attempted to withdraw pro- contractor, seeking to invoke doctrine of promis-
posal, must prove that it had received a definite and sory estoppel, cannot claim reliance on bid which
clear offer from subcontractor, that the general con- subcontractor attempted to withdraw.
tractor could expect reliance of a substantial nature, *71 **247 Sam J. Abraham, Linden, for appellant
that there was actual reasonable reliance on general (Magner, Abraham & Kahn, Linden, attorneys.)

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

216 A.2d 246
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)
Peter A. Adams, Newark, for respondent.
Before Judges GOLDMANN, FOLEY and
COLLESTER.
The opinion of the court was delivered by
COLLESTER, J.A.D.
Summary judgment on cross-motions therefor was
entered in favor of plaintiff E. A. Coronis Asso-
ciates (Coronis) on defendant M. Gordon Construc-
tion Company's (Gordon) counterclaim in the Su-
perior Court, Law Division.
**248 This litigation began when plaintiff brought
suit on three contracts not here pertinent. Defendant
admitted liability thereon, but counterclaimed for
breach of a contract to supply and erect structural
steel on one of its projects. Gordon is a general
contractor. In anticipation of making a bid to con-
struct two buildings at the Port of New York Au-
thority's Elizabeth Piers it sought bids from subcon-
tractors. Coronis designs, fabricates, supplies and
erects structural steel. On April 22, 1963 it sent the
following letter to Gordon:
*72 ‘April 22, 1963
Mr. David BenZvi
Gordon Construction Co.
Elizabeth Avenue
Linden, N.J.
Subject: Bldgs. 131 & 132 Elizabeth Port Authority
Piers Structural Steel
Dear Mr. BenZvi:
We regret very much that this estimate was so
delayed. Be assured that the time consumed was
due to routing of the plans through our regular
sources of fabrication.
We are pleased to offer:
All structural steel including steel girts and purlins
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
Both Buildings delivered and erected $155,413.50
All structural steel equipped with clips for wood
girts & purlins
Both Buildings delivered and erected 98,937.50
NOTE:
This price is predicated on an erected price of .1175
per Lb. of steel and we would expect to adjust the
price on this basis to conform to actual tonnage of
steel used in the project.
Thank you very much for this opportunity to quote.
Very truly yours,
E. A. CORONIS ASSOCIATES
/s/ Arthur C. Pease
Arthur C. Pease'
Gordon contends that at some date prior to April 22
the parties reached an oral agreement and that the
above letter was sent in confirmation.
Bids were opened by the Port Authority on April
19, 1963, and Gordon's bid was the lowest. He al-
leges that Coronis was informed the same day. The
Port Authority contract was officially awarded to
Gordon on May 27, 1963 and executed about two
weeks later. During this period Gordon never ac-
cepted the alleged offer of Coronis. **249 Mean-
while, on June 1, 1963, Coronis sent a telegram, in
pertinent part reading:
‘Due to conditions beyond our control, we must
withdraw our proposal of April 22nd 1963 for
structural steel Dor Buildings 131 and 132 at the
Elizabeth-Port Piers at the earliest possible we will
resubmit our proposal.’
*73 Two days later, on June 3, 1963, Gordon
replied by telegram as follows:
‘Ref your tel. 6-3 and for the record be advised that
we are holding you to your bid of April 22, 1963
for the structural steel of cargo bldgs 131 and 132.’
Coronis never performed. Gordon employed the
Elizabeth Iron Works to perform the work and
216 A.2d 246
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)
claims as damages the difference between Coronis'
proposal of $155,413.50 and Elizabeth Iron Works'
charge of $208,000.
Gordon contends that the April 22 letter was an of-
fer and that Coronis had no right to withdraw it.
Two grounds are advanced in support. First, Gor-
don contends that the Uniform Commercial Code
firm offer section, N.J.S. 12A:2-205, N.J.S.A., pre-
cludes withdrawal and, second, it contends that
withdrawal is prevented by the doctrine of promis-
sory estoppel.
I Having so concluded, we need not consider the
[1][2] Prior to the enactment of the Uniform Com-
mercial Code an offer not supported by considera-
tion could be revoked at any time prior to accept-
ance. American Handkerchief Corp. v. Frannat
Realty Co., 17 N.J. 12, 109 A.2d 793 (1954). The
drafters of the Code recognized that the common
law rule was contrary to modern business practice
and possessed the capability to produce unjust res-
ults. See Corbin, ‘The Uniform Commercial Code-
Sales, Should it be Enacted,’ 59 Yale L.J. 821, 827
(1950). The response was section 2-205 (N.J.S.
12A:2-205, N.J.S.A.) which reverses the common
law rule and states:
‘An offer by a merchant to buy or sell goods in a
Signed writing which by its terms gives assurance
that it will be held open is not revocable, for lack of
consideration, during the time stated or if no time is
stated for a reasonable time. * * *’ (Emphasis ad-
ded)
Coronis' letter contains no terms giving assurance it
will be held open. We recognize that just as an of-
feree runs a risk in acting on an offer before accept-
ing it, the offeror runs a risk *74 if his offer is con-
sidered irrevocable. Cf., James Baird Co. v. Gimbel
Bros., Inc., 64 F.2d 344 (2 Cir. 1933). In their com-
ments to section 2-205 of the Code the drafters an-
ticipated these risks and stated:
‘However, despite settled courses of dealing or us-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
ages of the trade whereby firm offers are made by
oral communication and relied upon without more
evidence, such offers remain revocable under this
Article since authentication by a writing is the es-
sence of this section.’ Uniform Commercial Code (
N.J.S. 12A:2-205, N.J.S.A.), comment, par. 2
We think it clear that plaintiff's writing does not
come within the provision of section 2-205 of a
‘signed writing which by its terms gives assurance
that it will be held open.’ See Wilmington Trust
Company v. Coulter, 200 A.2d 441
(Del.Sup.Ct.1964).
question of whether the Coronis letter was an offer
or whether the letter dealt with ‘goods.’ We note in
this connection that Coronis quoted the price for
structural steel delivered and erected.
II
Defendant also argues that even if plaintiff's writing
of April 22 is not a firm offer within the meaning of
section 2-205, justice requires that we apply the
doctrine of promissory estoppel to preclude its re-
vocation.**250 Restatement, Contracts, s 90
provides:
‘A promise which the promisor should reasonably
expect to induce action or forbearance of a definite
and substantial character on the part of the prom-
isee and which does induce such action or forbear-
ance is binding if injustice can be avoided only by
enforcement of the promise.'[FN1]
FN1. The Restatement does not use the
term ‘promissory estoppel.’ It has been cri-
ticized as too broad. Professor Corbin ap-
proves of the Restatement's stating of the
rule ‘in terms of action or forbearance in
reliance on a promise.’ 1A Corbin, Con-
tracts, s 204 (1963), cited with approval in
Friedman v. Tappan Development Corp.,
22 N.J. 523, 538, 126 A.2d 646 (1956). We
216 A.2d 246
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)
use the term ‘promissory estoppel’ for con-
venience.
*75 Defendant argues that it relied on plaintiff's bid
in making its own bid and that in justice would res-
ult if plaintiff could now revoke. Thus, defendant
contends that plaintiff's bid is made irrevocable by
application of the doctrine of promissory estoppel.
[3][4] No New Jersey case has applied the rule in
our State. But our highest court has twice implied
that in appropriate circumstances it would. Fried-
man v. Tappan Development Corp., 22 N.J. 523,
126 A.2d 646 (1956); American Handkerchief
Corp. v. Frannat Realty Co., supra. The general
rule is that estoppel only applies to representations
of facts past or present. Berman v. One Forty-five
Belmont Ave. Corp., 109 N.J.Eq. 256, 261, 156 A.
830 (Ch.1931). The significant function of promis-
sory estoppel is to apply an estoppel to representa-
tions or promises as to future events. 31 C.J.S. Es-
toppel s 80, pp. 466, 467 (1964). Writing for the
court in Friedman, Justice Heher recognized that
the doctrine was not truly an estoppel in the histor-
ical sense. He described the doctrine by stating:
‘The term ‘promissory estoppel’ is of comparat-
ively recent origin in our jurisprudence, not alto-
gether clear in its quality and import. It is not a true
estoppel, but a departure from the classic doctrine
of consideration that the promise and the considera-
tion must purport to be the motive each for the oth-
er, in whole or at least in part, and it is not enough
that the promise induces the detriment or that the
detriment induces the promise if the other half is
wanting, Wisconsin & Michigan R. Co. v. Powers,
191 U.S. 379, 386, 24 S.Ct. 107, 48 L.Ed. 229
(1903), Holmes, C.J.; Coast National Bank v.
Bloom, supra (113 N.J.L. 597, 602, 174 A. 576, 95
A.L.R. 528 (E. & A.1934)), a professed adaptation
of the principle of estoppel to the formation of con-
tracts where, relying on a gratuitous promise, the
promisee has suffered detriment. Martin v. Meles,
179 Mass. 114, 60 N.E. 397 (Sup.Jud.Ct.1901),
Holmes, C.J. There is in such circumstances no rep-
resentation of an existing fact, but merely that the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
promisor at the time of making the promise intends
to fulfill it. The reliance is on a promise, and not on
a misstatement of fact, and so the estoppel is
termed ‘promissory’ to mark the distinction. Willis-
ton on Contracts (rev. ed.), section 139.' ( 22 N.J.,
at pp. 535, 536, 126 A.2d at p. 652)
The evolving nature of the doctrine under examina-
tion is illustrated by the variation in the expressions
of the authorities in its characterization. Thus it has
been called a ‘species *76 of consideration,’ Porter
v. Commissioner of Internal Revenue, 60 F.2d 673,
675 (2 Cir. 1932), affirmed, 288 U.S. 436, 53 S.Ct.
451, 77 L.Ed. 880 (1933); and the ‘equivalent of’ or
a ‘substitute for’ consideration. Allegheny College
v. National Chautauqua County Bank of
Jamestown, 246 N.Y. 369, 159 N.E. 173, 175, 57
A.L.R. 980 (Ct.App.1927). The doctrine has found
basic acceptance throughout the country. However,
the courts have not agreed on where the doctrine is
to be applied. They frequently state that in this
country promissory estoppel ‘has been generally
confined to charitable subscriptions, where diffi-
culty **251 has been encountered in sustaining the
promise under the conventional theories of consid-
eration, and to certain promises between individuals
for the payment of money, enforced as informal
contracts.’ Friedman v. Tappan Development
Corp., supra, 22 N.J. at p. 536, 126 A.2d at p. 653;
1 Williston, Contracts (3d ed.1957), s 140, pp. 611,
612. While the doctrine is now recognized ‘almost
universally’ in the charitable subscription cases, 1A
Corbin, op. cit., s 198, p. 204; 1 Williston, op. cit.,
p. 609, s 140, it also enjoys a much wider applica-
tion. Annotation 48 A.L.R.2d 1069, 1079-1087
(1950); Annotation 115 A.L.R. 152, 156 (1938); 1A
Corbin, op. cit., ss 193-209. For example, promis-
sory estoppel has been applied to preclude reliance
on the statute of limitations, Waugh v. Lennard, 69
Ariz. 214, 211 P.2d 806 (Sup.Ct.1949); to avoid the
statute of frauds, Alaska Airlines v. Stephenson,
217 F.2d 295, 15 Alaska 272 (9 Cir. 1954); to pre-
vent foreclosure of a mortgage, Bank of Fairbanks
v. Kaye, 227 F.2d 566, 16 Alaska 23 (9 Cir. 1955);
to enforce a pension plan, West v. Hunt Foods, 101
216 A.2d 246
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)
Cal.App.2d 597, 225 P.2d 978 (D.Ct.App.1951); to
require the granting of a franchise, Chrysler Cor-
poration v. Quimby, 1 Storey 264, 51 Del. 264, 144
A.2d 123, 885 (Sup.Ct.1958); to protect creditors
by requiring directors of a corporation to convey
land to it, Berman v. Griggs, 145 Me. 258, 75 A.2d
365 (Sup.Jud.Ct.1950); to enforce a release given
without consideration, Fried v. Fisher, 328 Pa. 497,
196 A. 39, 115 A.L.R. 147 (Sup.Ct.1938); and to
enforce an easement *77 granted without considera-
tion or a writing, Miller v. Lawlor, 245 Iowa 1144,
66 N.W.2d 267, 48 A.L.R.2d 1058 (Sup.Ct.1954).
[5] We see no reason why, given an appropriate
factual situation, the doctrine would not apply in
this State. Our view is reinforced by the ever ex-
panding scope of liability designed to compensate
those injured by wrongful conduct. See, e.g., Ekalo
v. Constructive Service Corporation of America,46
N.J. 82, 215 A.2d 1 (1965); Falzone v. Busch, 45
N.J. 559, 214 A.2d 12 (1965); Schipper v. Levitt &
Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965). As
Justice Jacobs said in Schipper:
‘The law should be based on current concepts of
what is right and just and the judiciary should be
alert to the never-ending need for keeping its com-
mon law principles abreast of the times. Ancient
distinctions which make no sense in today's society
and tend to discredit the law should be readily re-
jected. * * *’ (at p. 90, 207 A.2d at p. 325)
We see no difference between substantial reliance
on a representation or promise as to current or past
facts and as to future facts. It is only right and just
that a promise a promisor knows will induce action
of a substantial character be enforced if it is in fact
relied on.
The authorities are not uniform in applying the doc-
trine of promissory estoppel to situations compar-
able to that before us. We believe the better line of
authority applies the doctrine. N. Litterio & Co. v.
Glassman Constr. Co., 115 U.S.App.D.C. 335, 319
F.2d 736 (D.C.Cir. 1963); Air Conditioning Co. of
Hawaii v. Richards Constr. Co., 200 F.Supp. 167
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
(D.Hawaii 1963), affirmed on other grounds, 318
F.2d 410 (9 Cir. 1963); Reynolds v. Texarkana
Construction Company, 237 Ark. 583, 374 S.W.2d
818 (Sup.Ct.1964); Drennan v. Star Paving Co., 51
Cal.2d 409, 333 P.2d 757 (Sup.Ct.1958); Norcross
v. Winters, 209 Cal.App.2d 207, 25 Cal.Rptr. 821
(D.Ct.App.1962); Northwestern Engineering Co. v.
Ellerman, 69 S.D. 397, 10 N.W.2d 879
(Sup.Ct.1943); Union Tank Car Company v. Wheat
Brothers, 15 Utah 2d 101, 387 P.2d 1000
(Sup.Ct.1964). Cf., *78R. P. Farnsworth & Co. v.
Albert, 79 F.Supp. 27 (E.D.La.1948), reversed, 176
F.2d 198 (5 Cir. 1949); Harris v. Lillis, 24 So.2d
689 (La.Ct.App.1946). Contra, James Baird Co. v.
Gimbel Bros., Inc., 64 F.2d 344 (2 Cir. 1933);
Southeastern Sales & Service Co. v. T. T. Watson,
Inc., 172 So.2d 239 (Fla.D.Ct.App.1965).
**252 The Drennan case involved an oral bid by a
subcontractor for paving work at a school project
on which plaintiff general contractor was about to
bid. Defendant's paving bid was the lowest, and the
general contractor computed his own bid accord-
ingly. Plaintiff was the successful bidder but the
following day was informed by defendant it would
not do the work at its bid price. The California Su-
preme Court, per Justice Traynor, applied the doc-
trine of promissory estoppel to prevent defendant's
revocation of its bid, stating:
‘When plaintiff used defendant's offer in computing
his own bid, he bound himself to perform in reli-
ance on defendant's terms. Though defendant did
not bargain for this use of its bid neither did de-
fendant make it idly, indifferent to whether it would
be used or not. On the contrary it is reasonable to
suppose that defendant submitted its bid to obtain
the subcontract. It was bound to realize the substan-
tial possibility that its bid would be the lowest, and
that it would be included by plaintiff in his bid. It
was to its own interest that the contractor be awar-
ded the general contract; the lower the subcontract
bid, the lower the general contractor's bid was
likely to be and the greater its chance of acceptance
and hence the greater defendant's chance of getting
216 A.2d 246
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)
the paving subcontract. Defendant had reason not
only to expect plaintiff to rely on his bid but to
want him to. Clearly defendant had a stake in
plaintiff's reliance on its bid. Given this interest and
the fact that plaintiff is bound by his own bid, it is
only fair that plaintiff should have at least an op-
portunity to accept defendant's bid after the general
contract has been awarded to him.’ ( 333 P.2d at p.
760)
[6] The South Dakota Supreme Court was confron-
ted with a virtually identical set of facts in the
Northwestern Engineering case. In applying
promissory estoppel it stated,
‘Obviously it would seem unjust and unfair, after
appellant was declared the successful bidder and
imposed with all the obligations of such, to allow
respondents to then retract their promise and permit
the effect of such retraction to fall upon the appel-
lant.’ ( 10 N.W.2d, at p. 883)
*79 Similarly, in the Reynolds case a subcontractor
submitted a bid for the electrical work for a school
project on which the general contractor was about
to bid. The general contractor relied on the subcon-
tractor's bid. In applying promissory estoppel to
prevent revocation the court held that,
‘Justice demands that the loss resulting from the
subcontractor's carelessness should fall upon him
who was guilty of the error rather than upon the
principal contractor who relied in good faith upon
the offer that he received.’ ( 374 S.W.2d, at p. 820)
We agree.
III
[7] To successfully establish a cause of action
based on promissory estoppel Gordon must prove
that (1) it received a clear and definite offer from
Coronis; (2) Coronis could expect reliance of a sub-
stantial nature; (3) actual reasonable reliance on
Gordon's part, and (4) detriment. Restatement, Con-
tracts, s 90; N. Litterio & Co. v. Glassman Constr.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
Co., supra, 319 F.2d at p. 739.
[8] The Law Division did not think promissory es-
toppel would apply in the situation Sub judice.
Therefore we reverse. We also remand since it is
necessary to determine if the elements of a promis-
sory estoppel case are present. They are essentially
factual and inappropriate to a summary judgment.
R.R. 4:58-3; Robbins v. Jersey City, 23 N.J. 229,
128 A.2d 673 (1957). Gordon must show the exist-
ence of an offer. The April 22 letter is subsequent
in time to Gordon's bid to the Port Authority. It
cannot furnish the basis for this suit since it would
have been impossible for Gordon**253 to have re-
lied on it when making its bid. However, it is al-
leged that the letter merely confirmed prior oral
agreements. The true facts must await a full hear-
ing.
[9][10] Similarly, Gordon must show that Coronis
could reasonably expect Gordon to rely on the bid.
This will depend on Coronis' actual knowledge or
the custom and usage in the trade. N. Litterio & Co.
v. Glassman Constr. Co., supra; *80 Hedden v. Lu-
pinsky, 405 Pa. 609, 176 A.2d 406 (Sup.Ct.1962).
Gordon must also show actual reliance.[FN2] Nor-
cross v. Winters,supra. And we note that if Coronis'
bid was so low as to put Gordon on notice that it
was erroneous it cannot claim reliance. Drennan v.
Star Paving Co., supra; AmcIsaac & Menke Co. v.
Freeman, 194 Cal.App.2d 327, 15 Cal.Rptr. 48
(D.Ct.App.1961); cf., Feldman v. Urban Commer-
cial, Inc., 70 N.J.Super. 463, 175 A.2d 683
(Ch.Div.1961). Finally, of course, detriment must
be shown.
FN2. We do not consider whether the ex-
istence of section 2-205 of the Uniform
Commercial Code precludes reliance on an
offer not conforming to its provisions.
Reversed and remanded.
N.J.Super.A.D. 1966.
E. A. Coronis Associates v. M. Gordon Const. Co.
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv.
216 A.2d 246 Page 8
90 N.J.Super. 69, 216 A.2d 246, 3 UCC Rep.Serv. 42
(Cite as: 90 N.J.Super. 69, 216 A.2d 246)

42

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.