Appeal by plaintiff from Sitton, Judge. Judgment entered 30 September 1986 in Superior Court, Caldwell County.
Orr, Judge. Judges Johnson and Eagles concur.
Plaintiff argues that the trial court erred in dismissing its contractual claim on the grounds of a failure of consideration. It is contended by the plaintiff that the doctrine of promissory estoppel should apply in the case sub judice so as to serve as a substitute for consideration. We decline to expand the use of the doctrine of promissory estoppel in cases such as this one and affirm the trial court's decision for the reasons set forth below.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint, Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970), which will be dismissed if it is completely without merit. Lee v. Paragon Group Contractors, 78 N.C. App. 334, 337 S.E.2d 132 (1985). A complaint is without merit if (1) there is an absence of law to support a claim of the sort made; (2) there is an absence of fact sufficient to make a good claim; or (3) there is the disclosure of some fact which will defeat a claim. Id. at 337, 337 S.E.2d at 134. In the case sub judice, there is an absence of law to support the plaintiff's claim.
Plaintiff's complaint alleges the existence of a contract between plaintiff and defendant. However, the complaint fails to allege the existence of any consideration for defendant's promise to perform the duct work for $29,400. A contract, to be enforceable, must be supported by adequate consideration. Matthews v. Matthews, 2 N.C. App. 143, 162 S.E.2d 697 (1968). Consideration which is sufficient to support a contract "consists of 'any benefit, right, or interest bestowed upon the promisor, or any forbearance, detriment, or loss undertaken by the promisee.'" Lee v. Paragon Group Contractors, 78 N.C. App. at 338, 337 S.E.2d at 134 (citation omitted).
Plaintiff, however, asserts the doctrine of promissory estoppel and argues that it serves as a substitute for consideration.
The Restatement of Contracts states the following:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.
Restatement (Second) of Contracts § 90 (1979). The comment to this section states that this section is often referred to in terms of "promissory estoppel."
However, there are differing interpretations of § 90.
It [§ 90] appears to be intended as a substantive rule of law to be used as a sword under which a promisee can bring an action and, if he proves the elements set out in § 90, enforce the promise. By supplying the missing elements to the contract
it appears to give the promisee an enforceable right of action in contract against his promisor. In effect, if a complaint is patterned after § 90, it anticipates the defenses of lack of assent and lack of consideration, and thus precludes, at ...