Appellants assert three exceptions to the Statute of Frauds. First, appellants assert part performance as an exception. In order for part performance of an oral agreement to remove the agreement from operation of the Statute of Frauds and permit specific performance, the appellants must establish acts which relate clearly and unequivocally 106*106 to the agreement, exclusive of any other relation between parties touching such agreement. Aust v. Beard, 230 S.C. 515, 96 S.E. (2d) 558 (1957); Gibson v. Hrysikos, 293 S.C. 8, 358 S.E. (2d) 173 (S.C. App. 1987). According to the terms of the 1980 lease, appellants were entitled to make improvements to the leased property as they desired. Thus, the construction of the Ghost Ship II does not relate clearly to the oral agreement exclusive of the original lease agreement.
Second, appellants assert that equitable estoppel takes the oral agreement out of the operation of the Statute of Frauds. In order to overcome statutory requirements that an agreement be in writing, the party asserting estoppel must show that he suffered a definite, substantive, detrimental change of position in reliance on such agreement and that no remedy except enforcement of the bargain is adequate to restore his former position.
The appellants fail to show any definite, substantial and detrimental change of position in reliance upon any oral agreement. Exercise of the full extension options under the lease would allow appellants to have the benefit of any improvements for an additional fifteen years beyond the initial lease term. The record reveals no substantive detrimental change in appellants' position sufficient to estop enforcement of the requirements of the Statute of Frauds. Atlantic Wholesale Co., Inc. v. Solondz, 283 S.C. 36, 320 S.E. (2d) 720 (S.C. App. 1984); 73 Am. Jur. (2d) Statute of Frauds, § 278 (1974).
Third, appellants assert that Exhibits Numbers 3 and satisfy the memorandum requirement of the Statute of Frauds. A writing prepared by a party to a contract or by his agent may constitute a memorandum sufficient to satisfy the Statute of Frauds, although not delivered to the other contracting party and was neither intended for nor known to him, provided it is intended to evidence the contract of the parties and its contents are disclosed for that purpose. Smith v. McClam, 289 S.C. 452, 346 S.E. (2d) 720 (1986). The writing must reasonably identify the subject matter of the contract, sufficiently indicate a contract has been made between the parties, and state with reasonable certainty the essential terms of the agreement. Restatement (Second) of Contracts, § 131 (1981). Exhibit 107*107 No. 3 is a letter to the respondents, written by Attorney C.C. Grimes, discussing the proposed amendments which he enclosed. Exhibit No. 3 does not indicate that an agreement had been reached and supports respondents' contention that negotiations were not complete.
Exhibit No. 4 is a letter written by respondent William A. Chandler to Mr. Grimes wherein he states that the terms of the proposed amendments were not acceptable. We hold that these exhibits are insufficient to constitute a written memorandum of agreement under the Statute of Frauds.
Finally, appellants contend that if they cannot recover under contract, they are due monetary relief for restitution or under the theory of quantum meruit. In order to recover under these causes of action, it must be shown that a party was enriched by the unjust retention of a benefit to the loss of another. 66 Am. Jur. (2d), Restitution and Implied Contracts, § 3 (1973). In this case, improvements to the premises were contemplated by the original lease. Furthermore, the appellants hold the right to benefit from any improvements during the term and under the provisions of the lease. According to the record, construction of the second restaurant was commenced one day after the February 5, 1985, telephone conversation and while the original lease was still in effect. The appellants were notified within three weeks of the February 5th telephone conversation that the lease would not be extended unless an agreement was reached on certain additional terms and conditions. This Court concludes that the record fails to establish the unjust enrichment of the respondents to the exclusion of appellants' benefit and that the retention of any benefit by the respondents is a result of the initial lease.
