Footwear Unlimited v. Herbert M‪.‬

Herbert M. Katzenberg, appeals from an order of the Circuit Court of St. Louis County, Missouri, granting Footwear Unlimited, Inc., a new trial following a jury verdict of $10,000 on Katzenberg's counterclaim because of instructional error. On appeal the appellant, defendant in the trial court, contends that the trial court erred in granting a new trial on his counterclaim on the grounds (1) that the agreement was unenforceable by reason of the Statute of Frauds, § 432.050 V.A.M.S., because respondent waived this defense, a written memorandum of the agreement existed, and application of the Statute of Frauds would have created a tenancy longer than the period of rental claimed and awarded, and; (2) Instruction No. 12 directed a verdict based upon a theory of fraud which was not supported by the evidence because respondent pleaded and proved a case of promissory estoppel which clearly supported the giving of Instruction No. 12. We affirm.