## Facts

- Wade Berryman owned 960 acres in Stanton County, Kansas.
- Norbert H. Kmoch, a Colorado real estate broker, sought an option to purchase the land through an intermediary.
- Kmoch drafted a written option dated June 19, 1973, granting an option for 120 days “for $10.00 and other valuable consideration.”
- The $10.00 recited as consideration was never paid.
- In late July 1973, Berryman called Kmoch and asked to be released from the option; no definitive agreement to modify or continue the arrangement was reached.
- Berryman thereafter sold the land to a third party.
- In August 1973, when Kmoch attempted to arrange financing and exercise the option, he learned the property had been sold.
- Kmoch later recorded the option and sent written notice purporting to exercise it in October 1973.

## Issues

1. Whether the written “option” was a binding option contract supported by consideration, or instead a revocable offer withdrawable before acceptance.
2. Whether the promise was enforceable under promissory estoppel based on Kmoch’s claimed reliance efforts to obtain purchasers or investors.

## Decision

- The Supreme Court of Kansas affirmed summary judgment for Berryman.
- The court held the purported option lacked consideration because the recited $10.00 was not paid and no other bargained-for exchange supported the promise to keep the offer open.
- Without consideration, the instrument was only an offer to sell, revocable at any time before acceptance.
- Berryman revoked the offer before any effective acceptance by Kmoch; subsequent attempts to “exercise” after the sale could not form a contract.
- Promissory estoppel did not apply because Kmoch failed to show reasonable, foreseeable reliance and a resulting fraud or injustice from nonenforcement.

## Legal Principles

- A purported option contract requires consideration; absent consideration, it operates only as a revocable offer that may be withdrawn before acceptance.
- A recital of consideration in an option does not establish an irrevocable option where the stated consideration is not actually given.
- Acts by the offeree do not substitute for consideration unless they are required by, and bargained for as part of, the option promise.
- Promissory estoppel requires (1) a promise the promisor should reasonably expect to induce action or forbearance, (2) actual and reasonable reliance, and (3) fraud or injustice if the promise is not enforced.
- Reliance is not reasonable where the promisee, especially a sophisticated drafter, knows consideration was not provided and the writing does not bind the promisor to keep the offer open.

## Conclusion

The court treated the unpaid, recited “$10.00” option as a revocable offer rather than an enforceable option contract, found that Berryman revoked the offer before acceptance, and refused to enforce the promise under promissory estoppel because Kmoch’s claimed reliance was not reasonable or sufficiently tied to preventing fraud or injustice.


Berryman v. Kmoch, 221 Kan. 304, 559 P.2d 790 (Kan. 1977)