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Part I: Who’s Suing Whom For What on What Theory (Remedies)Case Chart (CC)..................................................................................................................02

Case Briefs...............................................................................................................................Butler v. Wolf Sussman...........................................................................................................08Duke of Somerset v. Cookson ................................................................................................10Butler v. Frontier Telephone Co. ..........................................................................................12Hadley v. Baxendale..............................................................................................................14Krauss v. Greenbarg ............................................................................................................16Virginia Railway v. Armentrout............................................................................................18In Re Polemis and Furness, Wilthy & Co. ..........................................................................20Christianson v. Chicago St. Paul, Minneapolis & Omaha Railway....................................22Hill v. Winsor........................................................................................................................23Palsgraf v. Long Island Railroad.........................................................................................24Overseas Tankship Ltd. v. Morts Dock & Engineering (Wagon Mound 1)........................CCOverseas Tankship Ltd. v. Miller Steamship Co. (Wagon Mound 2)..................................CCMauney v. Gulf Refining .....................................................................................................25Sanford v. Boston Edison Co. .............................................................................................26Wheelock v. Noonan............................................................................................................28Campbell v. Seaman............................................................................................................30

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Spur Industries, Inc. v. Del. E. Webb Development Co. .....................................................32Boomer v. Atlantic Cement Co. .........................................................................................CC

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Case SoC Holding/Rule

Butler v. Wolf Sussman- 2 counts of Replevin- Conversion

Action by a married woman with superior possessory rights of a ring against a licensed pawnbroker, for replevin and conversion of the diamond ring pledged by the wife’s husband to the pawnbroker without the wife’s consent.

The court held that by claiming a title to the ring, the appellee waived necessity for a demand.- D’s actions to establish title in

himself (ie: filed delivery bond, contested suit on the merits. claimed protection under the married woman’s act) showed he would not have complied with demand

- A spouse can’t claim or dispose of an item w/o the permission of the other spouse if the other is the rightful owner.

Duke of Somerset v. Cookson - Equity

The owner, who claims title to an a unique altarpiece through treasure trove, brings this case in equity against a goldsmith for return of the altarpiece undefaced.

The court held that a bill of equity can be used to recover property if no other legal remedy would adequately compensate the rightful owner and where the return of the property in its unaltered form is essential.- Only the intrinsic value of the

item can be recovered in trover, but the item is has value far beyond that which is intrinsic and detinue will not prevent the possessor from defacing the item and thus lowering its value.

- Other causes of action would not have compensated the owner for what was actually important to him.

Butler v. Frontier Telephone Co. - Ejectment

A property owner filed an action of ejectment against the Frontier Telephone Co., seeking damages and recovery of space for stringing a wire across his property.

The court held that an ejectment lies because the owner was deprived of land which includes the surface and the space above.- The ability of the sheriff to

deliver possession is a test of the right to maintain an action of ejectment.

- You have to include the space above the surface of the land to ensure that the property owner will have complete enjoyment of their land.

Hadley v. Baxendale- Breach of Contract (because

of the relationship)- Negligence

Patrons, who owned and operated a mill, brought an action for breach of contract and negligence against a common carrier of goods, seeking consequential damages and loss profits for the delay in delivery of a broken crank shaft of a steam engine to a repair company while mill was stopped.

The court held that the defendant is only liable for damages that were reasonably (communication of special circumstances & in the contemplation of the parties at the time of execution of the contract) at the time of the contract and arise naturally from breach- Limit damages: damages

can’t be too remote- Protect commerce- Encourage bargain contract

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Case SoC Holding/Rule

Krauss v. Greenbarg- Breach of contract

Action brought by a seller of webbing against a buyer to recover the unpaid price of the webbing delivered to the buyer. Buyer files counterclaim for breach of contract against seller to recover consequential damages for delayed delivery resulting in the webbing buyer’s violation of a Government Contract.

Court applied the Hadley Test, adding a causation element- Special damages for breach of

a contract are not recoverable unless they arise naturally from the breach or are within the contemplation of the parties, at the time the contract was made, as the probable result of the breach (foreseeability).

- For something which is a cause in fact to be a legal cause, it must be a substantial factor in causing the harm.

- A party to contract cannot cover damages which he could have avoided by reasonable means. The very essence of the promise of a contract to deliver articles is ability to procure or make them. Delay resulting from the absence of such ability is not the same kind enumerated in the contract, not a cause extraneous to it, and independent of the engagements and exertions of the parties.

Virginia Railway v. Armentrout- Tort (Negligence)

Guardian bought a negligence action on behalf of his “intellegent” infant son against a railroad company to recover damages for injuries sustained by the infant when struck by the railroad company’s train allegedly due to failure to adhere to Virginia Statute requiring warning signals to be given at within so many feet of a crossing.

One cannot be liable for injuries caused by negligent act when that act is not the proximate cause of the injury. - The child could not be guilty

of contributory negligence. The incompetency which rendered the child incapable of contributory negligence would have rendered it unable to understand the statutory signals if they had been given.

- Parents should be responsible for their children.

- Virginia Statute (p.117): meant to protect cattle. To use this statute it must be that the purpose of the law was meant to protect against the harm in the instant case and if the plaintiff is in the class of persons meant to be protected.

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Case SoC Holding/Rule

In Re Polemis and Furness, Wilthy & Co.

- Tort (Ct. made decision based on negligence): Can’t be said the damages flowed from the breach of K or that the damages were foreseeable at the time of contracting.

- Has been rejected, but never overturned

- Is it still good law? My guess is no.

The shipowners of a Greek steamship brought a negligence claim against the charterers to recover damages for the total loss of the steamship by fire caused by the negligence of the charterers’ agent in allowing a board to fall into the lower hold.

All that matters is that some damage was the reasonably foreseeable consequence. - The expected peril does not

prevent the defendant from acting carefully, and he is liable for damages directly flowing from his breach of his obligation to act carefully, though the breach acts through the medium of an expected peril (ie: the exception of fire)

- If the reasonable person would not foresee that the act would cause some damage, the act is not negligent; but if the act would or might probably cause damage, the fact that the damage it causes is not the exact kind of damage one would expect is immaterial, so long as the damage is directly traceable to the negligent act.

Christianson v. Chicago St. Paul, Minneapolis & Omaha Railway- Tort (Negligence)

A railroad employee brought an action against his employer, a railroad company, to recover damages for personal injuries caused by the alleged negligence of defendant railroad company’s servants.

Negligent party is responsible for all of the natural and proximate consequences of the negligence whether or not they are foreseeable- anything that flows in an unbroken sequence form the original negligent act.

Hill v. Winsor- Tort (Negligence)

The victim, a bridge worker, brought an action in tort against the owners of a steam-tug to recover damages for personal injuries sustained by the victim, through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of a bridge.

Consequences of negligent act need not be foreseen by defendant. It’s enough that the injury is the natural and probable consequence of negligence. It is not necessary that injury in the precise form should have been foreseen.

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Case SoC Holding/Rule

Palsgraf v. Long Island Railroad- Tort (Negligence)

The victim, a bystander on a platform, brought a negligence action against the railroad company to recover damages for injuries sustained from scales falling from the platform during an explosion that followed the dropping of an indiscreet package due to negligence of the railroad company’s guards in trying to help a man on the moving train to prevent him from falling.

Where there is an act that unreasonably threatens the safety of others the doer is liable for all its proximate consequences, except where they result in injury to one who falls outside the radius of danger (ie: P has no duty to someone outside the zone of danger).- Adds the “zone of danger” limitation to duty

- The question of liability is always anterior to the question of the measure of consequences that go with liability. Because danger to the victim was not apparent in the guards’ actions it was not negligence on her part. Also because the victim’s claim is for negligence resulting in bodily injury while the foreseeable consequences of negligence was property damage of another passenger, it is futile to build the victim’s right upon the basis of a right to someone else.

Overseas Tankship Ltd. v. Morts Dock & Engineering (Wagon Mound 1)- Tort (Negligence) - Policy driven decision (?)

Wharf owner sued tank owner to recover damages for the destruction to his property and the equipment on it due to a fire caused by the charterers’ negligence in carelessly allowing a large quantity of oil to spill in the bay & making no attempt to disperse the oil before unberthing.

A man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance of a minimum standard of behavior. (Effectually overturns Polemis w/o actually overturning.)- Double foreseeability test:

(1)Is the risk in general foreseeable? (2)Were the specific damages foreseeable?

- Mess around dock was foreseeable, but the fire was not.

- Chain of foreseeability stops when there is an intervening act (welding)

- Directly traceable is not the test according to this court

Overseas Tankship Ltd. v. Miller Steamship Co. (Wagon Mound 2)- Tort (Negligence)

2 steamships sue the tanker for money damages when the ships were destroyed in the fire

There is liability if the damage is foreseeable as a real risk occurring in the mind of a reasonable man- No double foreseeability - No contributory negligence,

but can argue foreseeability

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Case SoC Holding/Rule

Mauney v. Gulf Refining - Tort (Negligence)

The victim brought action by attachment of chancery against an oil company to recover damages for personal injuries sustained when victim fell over a misplaced chair while trying to save herself and her child from a fire allegedly due to the negligence of the oil company’s agent, contending that the fire was the proximate cause of her miscarriage.

In order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom; but the actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence although such happening is within the range of possibilities.- Causal chain of events

between negligence and injury cannot be broken (here, chain broken by her tripping over her own chair)

- Differs from Polemis: brings back foreseeability of the individual harm- something remote is not in the circle

- Do not look at the harm first and then go back and find the cause; has to be foreseeable before the act.

Sanford v. Boston Edison Co. - Equitable relief

(Injunction/specific performance) - Policy Driven decision

A labor union filed an action against a company for breach of contract, seeking an injunction against the employer to prevent him from refusing to recognize the assignments of the contract, for specific performance of the contract, and for an execution for the amount due.

- Damages are not adequate if full compensation resulting harm will involve the P in multiple litigation, either with several different parties or in the form of repeated actions against the D.

- Anti-injunction statute: An injunction is preventive relief not affirmative relief; therefore, the statute doesn’t apply. (Specific performance is affirmative, not injunctive relief)

Wheelock v. Noonan- Injunction

The owner of a certain lot brought suit against a stranger whom he’d given license to use his property for trespass, seeking an injunction.

While ordinarily courts of equity will not wield their power merely to redress a trespass, yet they will interfere under peculiar circumstances, and have often done so where the trespass was a continuing one, and a multiplicity of suits at law was involved in the legal remedy. In cases of intrusion where no consent had been given for the entry of the intruder, but whether the trespass was such from the beginning, or became one after a revocation of the license, can make no difference as it respects the adequacy of the legal remedy. A court of equity will act in such cases only after the plaintiff’s right has been established at law.

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Case SoC Holding/Rule

Campbell v. Seaman- Injunction

The owner of land improved by planting trees and shrubs brought an action against a neighboring brick manufacturer to recover damages for nuisance and an injunction restraining defendant from burning brick, alleging that gas from kiln that escaped during the process of brick manufacturing killed and destroyed valuable pine and spruce trees and injured their grape vines and plum trees.

- Every person is bound to make reasonable use of his property so as not to unnecessarily damage or annoy his neighbor. If he make unreasonable use of his land so as to produce material annoyance, inconvenience, discomfort, or hurt to his neighbor. he will be guilty of a nuisance to his neighbor and the law will hold him responsible for the consequent damage.

- Where the damage to one complaining of a nuisance is small or trifling, and the damage to the one causing the nuisance will be large in case he be restrained, the courts will sometimes deny an injunction.

Spur Industries, Inc. v. Del. E. Webb Development Co.- Injunction

A development company sued a neighboring feeding operation to enjoin the feeding operation from operating a cattle feedlot near the developing town, alleging that the feeding operation was a public nuisance because of the flies and the odor which were drifting or being blown by the prevailing south to north wind over the southern portion of the company’s new development.

The operation of a business that becomes a nuisance by reason of a nearby residential area may be enjoined, but the party seeking the injunction must indemnify the defendant for a reasonable cost of moving or shutting down.- Having shown a special injury

in the loss of sales the development company has a standing to bring suit to enjoin the nuisance.

- It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result.

Boomer v. Atlantic Cement Co. - Injunction- Policy driven: protecting the

cement plants.

Land owners sue a neighboring cement plant operator for injunction and damages, alleging injury to property from dirt, smoke and vibration emanating from the plant.

Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. Such a nuisance will be enjoined although marked disparity be shown in economic consequence between the effect of the injunction and the effect of the injunction and the effect of the nuisance. However, to follow the rule literally in this case would be to close down the plant at once. To avoid that immediately drastic remedy, it seems fair to both sides to grant permanent damages to plaintiffs.

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Citation: Butler v. Wolf Sussman, Inc., 221 Ind. 47, 46 N.E.2d 243 (Ind. 1943).Statement of the Case: Action by a married woman with superior possessory rights of a ring against a licensed pawnbroker, for replevin and conversion of the diamond ring pledged by the wife’s husband to the pawnbroker without the wife’s consent.Procedure: Plaintiff filed complaint on 2 counts of replevin and 1 count of conversion. Defendant answered in general denial. Plaintiff waived entitlement to judgment on the pleadings and went to trial. Trial court entered judgment for the pawnshop. Plaintiff moved for a new trial. Trial court denied motion. Ring owner appeals the denial of the motion for new trial.Statement of Facts: The wife inherited said ring from her mother. She is currently married though she and her husband are separated and she does not know his whereabouts. The wife missed the ring while packing at the time of the separation. She demanded that her it from her husband who produced and delivered to her a ticket disclosing that he had pawned the ring as his own approximately a year and two months before the separation to a licensed pawnbroker without the prior knowledge of the appellant.Issue: Did the trial court err in denying the motion for a new trial and denying the wife repossession of her property given that the pawnshop waived necessity for demand by filing redelivery bond, by contesting the suit on its merits, and by claiming protection of the Pawnbrokers Act, and given that a married woman is authorized to hold property as if she were unmarried?Result on Appeal: ReversedHolding: Yes, the trial court erred in denying the motion for a new trial and denying the wife repossession of her property given that the pawnshop waived necessity for demand by filing redelivery bond, by contesting the suit on its merits, and by claiming protection of the Pawnbrokers Act, and given that a married woman is authorized to hold property as if she were unmarried.Doctrinal Reasons:• A waiver may result from the character of defense made to the action... Any affirmative

action on the part of the defendant calculated to establish title in himself, whether by pleading or proof ought to waive a demand. D’s actions to establish title in himself showed that he would not have complied with a demand.

• Pawnbrokers do not have a lien a first lien on articles where the pledge or possession thereof by the pledger constituted larceny at common law

Policy Reasons: • Establishing rights for married women: A married woman has been authorized to take,

acquire, and hold personal property...• Constitutional considerations: No person shall be deprived of property without due

process of law.Additional Points: (Dicta) Court found that Section 32 of the Pawnbroker’s Act of 1935 violated the due process provisions of the State and Federal Constitutions. (Dicta) A married woman may have property interests and if so those interests cannot be taken away without due process of law.

Class NotesConstitutionality of Statute- Courts don’t like to judge constitutionality of statutes because it’s antidemocratic. The

more constitutionalism there is, the less democracy there might be.

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- Court determines that section 32 of the act violates due process of state and federal constitutions and is therefore unconstitutional as applied because the defendant had a vested interest in the property for which she could not be deprived without due process

- Due Process: Substantive, Procedural. - Pawnbrokers Act retroactively changed the vested interest in Property. --> Butler had a

vested interest in the property before the pawnbroker’s act was passed. - After finding this, why not just enter final judgment instead of remanding the case? -->

Not enough evidence to prove the factual basis of the case. - Standard of finding a statute unconstitutional

- On its face- As applied- The court found that the statute was unconstitutional as applied in the present case

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Case name & citation: Duke of Somerset v. Cookson, 24 Eng. Rep. 1114 (1735)Statement of the case: The owner of an old and unique altar piece brought a bill in equity against the possessor of the altar piece, a goldsmith, for the delivery of the altar piece, undefaced.Procedure: The owner brought a bill in equity. The possessor demurred. Statement of facts: The owner came into possession of an old alter piece made of silver, remarkable for a Greek inscription and dedication to Hercules by way of treasure trove. The owner’s altar piece was taken and sold to the possessor, a goldsmith, who had notice of the owner’s claim to the piece. Issues: Did the trial court err in granting demurrer where party bought a case in equity to recover personal property in the possession of another and where there is an adequate remedy at law by action of trover or detinue for the return of an old alter piece made of silver, remarkable for a Greek inscription and dedication to Hercules?Result: Demurrer overruled Holding: (Narrow) Yes, the trial court err in granting demurrer where party bought a case in equity to recover personal property in the possession of another where there an adequate remedy at law by action of trover or detinue for the return of an old alter piece made of silver, remarkable for a Greek inscription and dedication to Hercules.(Broad) A bill of equity can be used to recover property if no other legal remedy would adequately compensate the rightful owner and where the return of the property in its unaltered form is essential. Doctrinal rationale: Only the intrinsic value of the item can be recovered in trover, but the item is has value far beyond that which is intrinsic and detinue will not prevent the possessor from defacing the item and thus lowering its value.Policy rationale: Other causes of action would not have compensated the owner for what was actually important to him.

Class NotesDefendant - legal remedies and these remedies are adequate

- trover: gives only money damages- replevin (why is this not mentioned): We don’t know if the person who took the item

didn’t have a better claim to it as the items true owner - detinue:

- item might be defaced before it is returned- pay damages or return it- must prove that item was unlawfully detained

- “Flood gates” argument --> horrible things will happen if the ct. rules a certain way

When is equitable remedy suitable? - Limitation of means: you’re not always going to get what you want.- Factors: (1)Subjective vs. Objective value (Subjective: sentimental attachment &

Objective: one of a kind item.); (2)Likelihood of return; (3) one of a kind item can’t be compensated for fully in monetary damages; (4)Likelihood that the item will be defaced

- Equitable remedy: (1)force ppl to do things otherwise be held in contempt; (2)justice (ideal result vs. limitation of means); (3)injunctive relief; (4)overseeing enforcement

- Reluctancy to get into equity: (1)oversight; (2)questions of legitimacy

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Case name & citation: Butler v. The Frontier Tele. Co., 186 N.Y. 486, 79 N.E. 716 (N.Y. 1906).Statement of the case: The owner in fee of the premises in question commenced an action of ejectment against telephone company to recover damages for removal of the wire for wrongfully dispossessing the owner of her property. Procedure: The trial court entered judgment for the owner of the premises and awarded damages in the amount of six cents. The telephone company appealed. The appellate court affirmed the lower courts decision by a divided vote. The telephone company appeals. Statement of facts: From January 1st to January 10th the telephone company entered the owner’s premises without the consent of the owner and without lawful authority and stretched a wire over and across the premises. Telephone Company took wire down after action was commenced. The owner was in possession of the premises at all times mentioned and since, except the part that was occupied by the telephone company during the period specified. There was no allegation or evidence that the wire was supported by any structure standing in the owner’s lot. Telephone company removed wire after the complaint was filed, but before trial.Issues: Was the trial court correct in entering judgment for the owner of the premises in an action for ejectment thereby holding that ejectment will lie when the soil is not touched, but part of the space a few feet above the soil is occupied by a telephone wire unlawfully strung by the telephone company across the owner’s premises and that the owner was deprived of possession to the extent necessary to authorize ejectment?Result on appeal: Affirmed.Holding:

Broad: An ejectment lies because the owner was deprived of land which includes the surface and the space above.Narrow: Yes, the trial court correct in entering judgment for the owner of the premises in an action for ejectment thereby holding that ejectment will lie when the soil is not touched, but part of the space a few feet above the soil is occupied by a telephone wire unlawfully strung by the telephone company across the owner’s premises and that the owner was deprived of possession to the extent necessary to authorize ejectment.

Doctrinal rationale: The ability of the sheriff to deliver possession is a test of the right to maintain an action of ejectment.Policy rationale: You have to include the space above the surface of the land to ensure that the property owner will have complete enjoyment of their land.

Class NotesQuestion: Who owns the air space and how can they use it? - use of airspace for telephone wires - This case set the tone for airspace ownership.

Trespass is an invasion in the possessory interest of someone else’s property (Trespass vs. ejectment). NOTE: all trespasses don’t give rise to an ejectment action.- requires re-filing

Nuisance: interference with the use and enjoyment of one’s property interest- public- private

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- Nuisance vs. trespass- Continuing trespass may become a nuisance - There must be and interference with the person’s use and enjoyment (personally) for

nuisance

Which is preferred nuisance, trespass, ejectment?

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Case name & citation: Hadley v. Baxendale, 156 Eng. Rep. 145 (Ex. 1854).Statement of the case: The patron sued the common carriers of goods and chattels for hire to recover damages for the breach of contract and/or negligence.Procedure: The patron filed a complaint claiming breach of contracts and negligence. The common carriers pleaded non assumpserunt to the breach of contract claim. The patron entered a nolle prosequi as to the breach of contract claim. The trial court entered judgment and awarded the jury verdict of 25l. damages beyond the amount to be paid into court. The carriers moved for a new trial, contesting the jury instructions. The appellate court found instructions to be adequate and affirmed the jury award. The carriers appealed.Statement of facts: Patron’s shaft broke and he hired the carriers of goods and chattels to deliver the broken shaft to the company that would repair it within two days or in a reasonable time. The carriers negligently did not deliver the broken shaft until a week later, causing the delivery of the repaired shaft to be delayed at the profit loss of the patron. The patron filed suit. The only circumstances communicated by the patrons to the carriers at the time the contract was made were that the said article to be delivered was the broken crank shaft of a mill and that said patrons were the millers of that mill. Issues: (1) Did the ct. err in giving the jury general directions, allowing jury to determine whether

the common carriers knew the purpose of sending the shaft and that its nondelivery would stop the operation of the mill?

(2) Did the ct. err in failing to instruct the jury not to use lost profits when estimating damages?

Result on appeal: Reversed and remanded.Holding: (1) Yes, the ct. erred in giving the jury general directions, allowing jury to determine whether

the common carriers knew the purpose of sending the shaft and that its nondelivery would stop the operation of the mill.

(2) Yes, the ct. erred in failing to instruct the jury not to use lost profits when estimating damages.

Doctrinal rationale: Where two parties have made a contract which one of them had broken, the damages which the other party ought to receive with respect of such breach of contract should be such as would fairly and reasonably be considered either arising naturally according to the usual course of the breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract as the probable result of the breach of it.Policy rationale: (1)Protect Commerce; (2)Encourage bargain contract

Class NotesConsignment: someone gives another common goods to carry to someone else

Made Damages a legal question rather than a question of fact: In drafting instructions for the jury favorable to the plaintiff, one cannot assume that the common carriers knew or would have reason to know that shaft was broken (?)

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Foreseeability: even if the carriers did not know, if they could reasonably foresee, based on special facts that certain damages will be incurred. - Even if P communicated the circumstances he said he had, one can argue that the

defendant did not agree to the consequences of the special circumstances, because if he did, he would have charged more.

- Applying the rule through some sort of normative lens: Ppl are in equal bargaining positions normatively in contracts.

Is this a torts case in which foreseeability should apply or is it a contract case in which foreseeability applies?

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Case name & citation: Krauss v. Greenbarg, 137 F.2d 569 (3d Cir. 1943).Statement of the case: Suppliers sued manufacturers to recover damages for the price of goods delivered. Manufacturers counterclaimed to recover damages for breaching contract by failing to deliver goods on schedule. Procedure: Suppliers filed complaint against manufacturers. Manufacturers counterclaimed. The jury at trial returned a verdict in favor for the manufacturer for the counterclaim. The manufacturer agreed to The court entered judgment for the manufacturer and awarded damages.Statement of facts: The manufacturer received an award and contract from the War department of the U.S. to supply leggings. By memorandum of the same date the manufacturers placed an order with the supplier for the webbing to be used in making leggings. The order provided for certain quantities of webbing to be delivered at given dates. The supplier did not maintain the scheduled deliveries of the webbing and as a result the manufacturer could not meet its schedule with the Government. Issues: a. Did the trial court err in awarding special damages to the manufacturer and thereby

holding that at the time of making the contract the supplier knew that his breach of contract would probably result in the kind of special damages claimed and thus could be said to have foreseen them given that the suppliers contemplated the harm of contract breach to the manufacturer?

b. Applicable law (?)c. Did the trial court err by instructing the jury that although there may have been other

contributing causes, if the “primary”... cause of the overall company’s delay was the supplier’s failure to deliver on time, then the loss was chargeable to it?

d. Did the trial court err in holding that as a matter of law the cause of delay was not such as to entitle the overall company to an extension of time and that therefore the failure to request an extension of time was of no consequence?

Result on appeal: AffirmedHolding: a. No, the trial court did not err in awarding special damages to the manufacturer and

thereby holding that at the time of making the contract the supplier knew that his breach of contract would probably result in the kind of special damages claimed and thus could be said to have foreseen them given that the suppliers merely contemplated the harm of contract breach to the manufacturer.

b. Applicable law. c. No, the trial court did not err by instructing the jury that although there may have been

other contributing causes, if the “primary”... cause of the overall company’s delay was the supplier’s failure to deliver on time, then the loss was chargeable to it.

d. No, the trial court did not err in holding that as a matter of law the cause of delay was not such as to entitle the overall company to an extension of time and that therefore the failure to request an extension of time was of no consequence.

Doctrinal rationale: a. Special damages for breach of a contract are not recoverable unless they can fairly and

reasonably be considered as arising naturally from the breach or as being within the contemplation of the parties, at the time the contract was made, as the probable result of the breach.

b. Applicable law

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c. For something which is a cause in fact to be a legal cause, it shall have been a substantial factor (ie: the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as cause) in bringing about the harm.

d. A party to contract cannot cover damages which he could have avoided by reasonable means. The very essence of the promise of a contract to deliver articles is ability to procure or make them. It would have no sense or incentive otherwise; and a delay resulting from the absence of such ability is not the same kind enumerated in the contract- is not a cause extraneous to it and independent of the engagements and exertions of the parties. The suppliers knew at the time of contracting that the manufacturer’s contract with the government included a penalty clause

Policy rationale: There was a war going on at the time of the contract. The manufacturer’s contract was to provide leggings for the soldiers. The special circumstances surrounding such a contract should be commonly known to the suppliers.

Class Notes:Issues- Cause in fact

- Sole (highest std), primary (intermediate std), or substantial factor (lowest std) in the injury

- Defendant asked for primary cause test- Ct held: should apply substantial factor test

- Extension clause: Why not req. the manufacturer to ask the Gov. for ext.? - Foreseeability

- Questions:- Is what happened what generally happens in the usual course of events- Is what happened a special circumstance

- Supplier’s argument: - It is the responsibility of the non-breaching party to mitigate damages;

Manufacturer should have tried to mitigate- Even if I knew about it I have to agree to be responsible for the damages

- Court held: - Part of the question is whether or not supplier could foresee that manufacturer

could not mitigate his damages; however, supplier didn’t ask for this instruction at trial and made assurances to the manufacturer.

- All a person has to do is understand the consequences; not agree to the consequences to be held liable for damages from breach

- Is it enough to tell someone about a special circumstance or is it necessary to explain the amount of damages at stake.

Rule: Applies Hadley

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Case name & citation: Virginia Railway v. Armentrout, 158 F.2d 358 (4th Cir. 1946).Statement of the case: Guardian bought a negligence action on behalf of his infant son against a railroad company for injuries sustained by the infant when struck by the railroad company’s train alleging that failing to sound the whistle and the failure of the engineer to stop the train after he saw the infant on the track caused the infant’s injuries. Procedure: Two issues of negligence were submitted to the jury: (1)that the engineer failed to give adequate warning of the approach of the engine and (2)that he failed to keep an adequate lookout to save the child from injury after his presence on the track was observed and there was still time to stop. In the first trial, the jury was hung. In the second trial, the jury returned a verdict for the guardian in the sum of $100,000. The trial court entered judgment for the guardian and awarded damages. The railroad company appeals. Statement of facts: A 13 month old baby strayed from his parent’s house, located on a hill above the railroad track by the side of a public road, undetected, to a railroad track 289 feet away. When next the baby was seen, he was in a crawling position on the track or near the crossing. There he was run over by a passing engine, losing his left arm above the elbow and his right arm above the wrist. The infant was a very intelligent child. The engineer was familiar with the crossing. A number of witnesses testified that no signals of any kind were given. All the witnesses agreed that the engine made a loud noise as it approached, which could be heard a long way off.Issues: (1) Did the trial judge err in charging the jury that the defendant was liable if the jury should

find that the engineer failed to give the warning signals required by law, and should further find that this failure was the cause of the accident?

(2) Was the trial court correct in submitting for the jury’s determination whether the engineer was negligent in his failure to stop the train after he saw the infant?

(3) Did the trial court err in rejecting the defendant’s request to instruct the jury that on the question whether the engineer should have seen the infant on the track in time to have stopped the engine before striking him the test is not whether it was possible to stop the engine before striking the infant after it was possible to see him on the track, but whether the engineer used reasonable and ordinary care under the operating condition then and there existing, to discover the infant on the track and stop the engine before striking him, and in calling the jury’s attention to the fact that the engine concerned in this case had been in operation until a few weeks before the trial and yet the defendant had made no test as to the engineer’s ability to stop the engine when running at certain speeds?

Result on appeal: Reversed and RemandedHolding: (1) Yes, the trial judge erred in charging the jury that the defendant was liable if the jury

should find that the engineer failed to give the warning signals required by law, and should further find that this failure was the cause of the accident.

(2) Yes, the trial court was correct in submitting for the jury’s determination whether the engineer was negligent in his failure to stop the train after he saw the infant.

(3) Yes, the trial court erred in rejecting the defendant’s request to instruct the jury that on the question whether the engineer should have seen the infant on the track in time to have stopped the engine before striking him the test is not whether it was possible to stop the engine before striking the infant after it was possible to see him on the track, but whether the engineer used reasonable and ordinary care under the operating condition then and there

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existing, to discover the infant on the track and stop the engine before striking him, and in calling the jury’s attention to the fact that the engine concerned in this case had been in operation until a few weeks before the trial and yet the defendant had made no test as to the engineer’s ability to stop the engine when running at certain speeds.

Doctrinal rationale: (1) The child could not be guilty of contributory negligence. The incompetency which

rendered the child incapable of contributory negligence would have rendered it unable to understand the statutory signals if they had been given. (Proximate Cause)

(2) N/A(3) The jury may have been misled because they were told that they could infer that the test

was not made because the results would have been unfavorable to the defendant. Furthermore, the judge failed to comment on the absence of the element of emergency from a test staged after the event.

Policy rationale: Parents should be responsible for their children.Additional Points: (Dicta) There may be recovery if the liability of the railroad company is established on retrial based on the 2nd negligence issue (failure of the engineer to stop the train after he saw the child), but there can be no recovery on the failure to sound the whistle since it was not the proximate cause.

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Case name & citation: In Re Polemus and Furness, Withy & Co., Court of Appeal [1921] 3 K.B. 560.Statement of the case: The shipowners of a Greek steamship brought a negligence claim against the charterers to recover damages for the total loss of the steamship by fire.Procedure: The shipowners filed their complaint. The arbitrators awarded that the owners were entitled to recover 196,165l., the full value of the ship. The court affirmed the award. The charterers appealed. Statement of facts: The shipowners chartered the steamship to the charterers. The cargo in the No. 1 hold of the ship consisted of considerable quantity of cases of benzine or petrol that had begun to leak. Thus, a considerable of petrol vapor was in the hold. In the process of shifting cases of benzine from the lower hold to the upper decks one of the boards fell into the lower hold and the fall was instantaneously followed by a rush of flames from the lower hold, and this resulted in the total destruction of the ship. The arbitrators found that the fall of the board was caused by the negligence of the charterers’ agents engaged in the work of discharging. Clause 5 provided that the ship was to be returned to the owners in same good order and condition as when delivered fair wear and tear excepted. Clause 21 of the contract between the shipowner and the charterers supplies that the loss or damage from fire on board in hulk or craft, or on shore are always mutually excepted.Issues: (1) Was the trial court correct in awarding damages to the shipowner, holding that the

charterers were not protected by an exception of fire which in the charter is mutually accepted?

(2) Was the trial court correct in awarding damages to the shipowner, holding that the actual damages is not too remote to be the subject of a claim even though it found that it could not be reasonably anticipated that the falling of the board would make a spark?

Result on appeal: Affirmed.Holding:(1) Yes, the trial court was correct in awarding damages to the shipowner, holding that the

charterers were not protected by an exception of fire which in the charter is mutually accepted.

(2) Yes, the trial court was correct in awarding damages to the shipowner, holding that the actual damages is not too remote to be the subject of a claim even though it found that it could not be reasonably anticipated that the falling of the board would make a spark.

Doctrinal rationale: (1) The expected peril does not prevent the defendant from acting carefully, and he is liable

for damages directly flowing from his breach of his obligation to act carefully, though the breach acts through the medium of an expected peril (ie: the exception of fire)

(2) If the reasonable person would not foresee that the act would cause damage, the act is not negligent; but if the act would or might probably cause damage, the fact that the damage it causes is not the exact kind of damage one would expect is immaterial, so long as the damage is directly traceable to the negligent act.

Policy rationale: The Court will not let people contract out of liability for negligence. Additional Points: Plaintiffs sue under contract; defendants argue for Hadley rule (damages are too remote to be liable). Class Notes

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Charterer’s argument: Charterers are not liable for the type of damage which could not reasonably have been anticipated. ---> Foreseeability- In an action for negligence the measure of damage is the same as in an action for breach

of contract- Proximate Cause: Damages must be such as can be reasonably be anticipated as the result

of the negligent act. In other words they must be the natural and probable consequences of the act.

- Extent of damage vs. Type of damage. Ship-owner’s argument: If the act is negligent, all damage that directly flows from it is recoverable. Hadley vs. Polemis- Polemis is taught as tort, but could be contract. Hadley is taught as contract, but could be

tort. Why is this?- Damages not foreseeable in Hadley, but are damages foreseeable in Polemis? Were

damages really not foreseeable in Hadley?- Could you argue that the rule in Polemis is for both contracts and negligence?- Contracts: self-imposed duty; Tort: law imposes duty (?)- Considerations

- naturally arising- foreseeability- special circumstances communicated

- What is the breach of contract in Polemis?- Failure to return the ship (?)- Dropping the board that started the fire (?)

- Whether you call something a tort or a contract does affect the damages ruling. 2 views of foreseeability- Foreseeable that some harm results from negligent act; negligent party is responsible for

all the harm that occurs. - Foreseeable that the breach of the contract will lead to the result which occurred

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Case name & citation: Christianson v. Chicago, 67 Minn. 94, 69 N.W. 640 (1896).Statement of the case: An employee brought an action against his employer, a railroad company, to recover damages for personal injuries caused by the alleged negligence of defendant’s servants. Procedure: District court denied the employer’s motion for a new trial. Statement of facts: Two hand cars travelled westerly. The front car on which the employee rode, was of old style, not capable of as great speed as the rear. The employee was standing on the rear end of the car with nothing to hold on to but handles that were attached to the lever and moved so rapidly that it was difficult for one standing on the car to hold on to them. The usual distance at which hand cars kept apart was 540 feet. At the speed at which the rear car was going, it would not have been able to stop in less than 100 feet. The cars travelled like this until the rear car got within 60 feet of the one in front of it. At this point when the employee looked back he became dizzy, lost his balance and fell off. The rear car collided with the employee inflicting very severe injuries. Issues: Was the trial court correct in denying the employer’s motion for a new trial...Result on appeal: Affirmed.Holding: Yes, the trial court was correct in denying the employer’s motion for a new trial...Doctrinal rationale: If the act is one which the party ought, in exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen.

Class NotesD’s Argument: Not foreseeable that P would fall off of the car and get run over.Ct rejected D’s Argument because they used foreseeability of harm generally not whether the specific harm was foreseeable to determine liability. Ct. agrees with Polemis.

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Case name & citation: Hill v. Winsor, 118 Mass. 251 (1875).Statement of the case: The victim brought an action in tort against the owners of a steam-tug to recover damages for personal injuries sustained by the victim, through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of a bridge.Procedure: At trial, the jury found for the victim.Statement of facts: Boat hit the bridge and the bridge worker was injured. Issues: Was the trial court correct in entering the verdict of the jury, holding that the jury might properly find it obviously probable that the injury in some form would be caused to those who were at work on the fender by the act of the defendants in running against it?Result on appeal: AffirmedHolding: Yes, the trial court was correct in entering the verdict of the jury, holding that the jury might properly find it obviously probable that the injury in some form would be caused to those who were at work on the fender by the act of the defendants in running against it.Doctrinal rationale: Consequences of negligent act need not be foreseen by defendant. It’s enough that the injury is the natural and probable consequence of negligence. It is not necessary that injury in the precise form should have been foreseen.

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Case name & citation: Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928).Statement of the case: The victim sued the railroad company to recover damages for injuries sustained during an explosion resulting from the negligence of the railroad company’s guard. Procedure: The trial court entered judgment for the victim. The appellate division of the Supreme Court affirmed the trial court’s judgment for the victim. Defendant appeals.Statement of facts: Two men ran to catch a stopped train. One hopped aboard while the train was moving; the other, carrying a package, hopped aboard the moving train, but almost fell. Two guards tried to help the man on the moving train to prevent him from falling. In this effort the package fell. (It was a small package covered with newspaper.) The package contained fireworks, but nothing in its appearance gave notice of its contents. The fireworks exploded when they fell throwing down some scales at the other end of the platform several feet away. The scales struck the victim causing the injuries for which she sues.Issues: Did the appellate division err in affirming the district court’s judgment in the victim’s favor, holding that the railroad company is responsible for the reasonably unforeseeable injuries of the victim resulting from the negligence of the railroad company’s guard? Result on appeal: Reversed and dismissed with costs in all courts.Holding: Yes, the appellate division erred in affirming the district court’s judgment in the victim’s favor, holding that the railroad company is responsible for the reasonably unforeseeable injuries of the victim resulting from the negligence of the railroad company’s guard.Doctrinal rationale: The question of liability is always anterior to the question of the measure of consequences that go with liability. Because danger to the victim was not apparent in the guards’ actions it was not negligence on her part. Also because the victim’s claim is for negligence resulting in bodily injury while the foreseeable consequences of negligence was property damage of another passenger, it is futile to build the victim’s right upon the basis of a right to someone else.Additional Points: (Dicta) Judge proposes no duty to unforeseeable P. “No such thing as negligence in the air.”

(Dissent) Where there is an act that unreasonably threatens the safety of others the doer is liable for all its proximate consequences, even where they result in injury to one who seems to fall outside the radius of danger. Breach of a general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to every one. This statement was not limited to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined ti those who might probably be hurt.

Class Notes- Cardozo: outside the zone of danger- Andrews: any harm being foreseeable negligent party is responsible for the harm that

occurs as a direct result of the party’s negligent act. - Question of allocating risk. - Polemis is still seen as a torts case and not contract case

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Case name & citation: Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942).Statement of the case: The victim brought action by attachment of chancery against an oil company and others for personal injuries resulting from a fall, contending that the fire was the proximate of her misfortune. Procedure: After a full hearing the chancellor dismissed the bill.Statement of facts: While the agent of the oil company was delivering gasoline to a filling station a fire was suddenly started, which rapidly spread to the tank car and to the filling station itself. People ran shouting fire loudly. When the victim heard these shouts and saw the fire, she turned to get her child with the intention of fleeing from the cafe that she and her husband operated. In her hurry to get to the child she fell over a misplaced chair and, subsequently, suffered a miscarriage. Issues: Was the chancellor correct in dismissing the victim’s bill, holding that the oil company cannot be held to the liability of having been obliged to foresee that the victim in her preparation or departure would run over a misplaced chair in her own place?Result on appeal: Affirmed.Holding: Yes, the chancellor was correct in dismissing the victim’s bill, holding that the oil company cannot be held to the liability of having been obliged to foresee that the victim in her preparation or departure would run over a misplaced chair in her own place.Doctrinal rationale: In order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom; but the actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence although such happening is within the range of possibilities.

Class NotesPutting the cases together to create a rule that covers all these cases (?) Broad enough to cover all cases and narrow enough not to cover too many cases.

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Case name: Sanford v. Boston Edison Co.Statement of the case: A labor union filed an action against a company for breach of contract, seeking an injunction against the employer to prevent him from refusing to recognize the assignments of the contract, for specific performance of the contract, and for an execution for the amount due.Procedure: D demurred to the bill on the grounds that P did not state a cause of action and that they have a plain, adequate, and complete remedy. T. Ct. sustained demurrer. Statement of facts: P and D entered into a written contract which stipulated: “The company will not by general rule or otherwise refuse to recognize assignments of wages when made in accordance with provisions of Chapter 96 of the (Massachusetts) Acts of 1933.” Members of he union have executed written assignments of a portion of their future wages to be deducted each month for the payment of their dues to the union. The company deducted the amounts assigned in accordance with the agreement and forwarded the deductions to the union, but later notified the union that it would not recognize such assignments of wages for the payment of dues by the members of the union, whose assignments contained written requests for the deduction of their union dues from the wages from the wages of the respective assignors; and that it would not deduct the amounts so assigned from said members’ checks and would not forward the aggregate of such amounts to the union. The union had fully performed the contract on its part. Issues: Did the court below err in sustaining demurrer of the plaintiff’s claim on the grounds that the plaintiffs have not stated a cause of action and that they have a plain, adequate and complete remedy at law?Result on appeal: Reversed.Holding: Yes, the court below erred in sustaining demurrer of the plaintiff’s claim on the grounds that the plaintiffs have not stated a cause of action and that they have a plain, adequate and complete remedy at law.Doctrinal rationale: The union will suffer irreparable damage for which it has no plain, complete and adequate remedy at law. Only by ordering specific performance can the court secure to P the real benefit of their contract.

There is a growing tendency to give the promisee the actual performance for which he bargained instead of a substitute and damages, where the damages are not the equivalent of the performance. Specific performance will be granted where damages are an inadequate remedy and the nature of the contract is such that specific enforcement of it will not involve too great practical difficulties, equity will grant a decree of specific performance.

Damages are not adequate if full compensation resulting harm will involve the P in multiple litigation, either with several different parties or in the form of repeated actions against the D.

Anti-injunction statute: An injunction is preventive relief not affirmative relief; therefore, the statute doesn’t apply. (Specific performance is affirmative, not injunctive relief)

Class Notes- Why would management agree to a check-off provision?- Specific performance enforces the contract action; Injunctions are different- Alternative remedy at law: (1)employees could sue for breach of contract for not

performing check-off or (2)Union could sue for anticipatory breach

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- Unions were once hindered by injunctions so they got a statute passed that several things must be met before companies could bring injunction suits. That statute was meant to protect unions but the defendant company in this case uses it to their advantage (clever, but it doesn’t work)

- Court driven by policy: even though the defendant’s argument makes logical sense, it goes against the original purpose of the statute which is to protect the labor unions.

NOTE on Injunctions- Federal judges were criticized for being activists when they granted large scale

injunctions relief - Courts can enforce certain moral standards in relations between people.

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Case name: Wheelock v. NoonanStatement of the case: The owner of a certain lot brought suit against a stranger whom he’d given license to use his property for trespass, seeking an injunction. Procedure: The trial court found as matter of law from these facts that the original permission given did not justify what was done either is at respected the quantity of rock or the time allowed; that after the withdrawal of the permission in the spring and the demand for the removal of the rock the defendant was a trespasser, and the trespass was a continuing one which entitled plaintiff to equitable relief; and awarded judgment requiring defendant to remove the rocks before March 15, 1886, unless extended by the court.Statement of facts: The defendant, who was a total stranger to the plaintiff, obtained from the later a license to place upon his unoccupied lots in the upper part of the city of New York a few rocks for a short time. The defendant gave his assurance that he would remove them in the spring. However, during the winter, and in the absence and without the knowledge of plaintiff, the defendant, the defendant covered six of the lots of plaintiff with “huge quantities of rock”. Then in the spring the plaintiff, discovering the abuse of his permission, complained bitterly of defendant’s conduct and ordered him to remove the rocks to some other locality. Though the defendant promised to do so, he did not, and in the face of repeated demands neglected and omitted to remove the rocks from the land.Issues: Did the trial court err in granting an injunction holding that there was no adequate remedy at law? Is it feasible to enforce the injunction?Result on appeal: Affirmed.Holding: No the trial court did not err in granting an injunction holding that there was no adequate remedy at law.Doctrinal rationale: While ordinarily courts of equity will not wield their power merely to redress a trespass, yet they will interfere under peculiar circumstances, and have often done so where the trespass was a continuing one, and a multiplicity of suits at law was involved in the legal remedy. In cases of intrusion where no consent had been given for the entry of the intruder, but whether the trespass was such from the beginning, or became one after a revocation of the license, can make no difference as it respects the adequacy of the legal remedy. A court of equity will act in such cases only after the plaintiff’s right has been established at law.Policy rationale: Additional Points: (Dicta) One who would justify under a license or permission must bring his acts within the terms of the license. He exceeds then at his peril. There is no equity in allowing him to strain them beyond their fair and reasonable interpretation.

Parol license, founded upon no consideration, is revocable at pleasure, even though the license may have expended money on the faith of it.

Class Notes- Injunction: Cost shifting mechanism in this case; however, if the defendant is judgment

proof the injunction may not be enforced - Factors for injunction: (1)Likelihood of success on merits, (2)balance of equities,

(3)Whether plaintiff has “dirty hands” (good faith), (4)public interest, (5)was defendant willful, (6)irreparable harm, (7)practicality of framing and enforcing a degree, (8)real property vs. other property.

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- NOTE: nuisance affects the use and enjoyment of land (legal remedy) - is the placement of the rocks a nuisance?

- Judges don’t like to issue injunctions because it proposes questions of competence.

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Case name: Campbell v. Seaman Statement of the case: The owner of land improved by planting trees and shrubs brought an action against a neighboring brick manufacturer to recover damages for nuisance and an injunction restraining defendant from burning brick, alleging that gas from kiln that escaped during the process of brick manufacturing killed and destroyed valuable pine and spruce trees and injured their grape vines and plum trees. Procedure: The referee found that the plaintiff owner was entitled to recover the damage proved to have been sustained, and to an injunction restraining neighboring brick manufacturer from burning brick at the place named by the brick manufacturing process. The General Term of the Supreme Court in the third judicial department affirmed the judgment in favor of the plaintiff owner entered upon the report of the referee. Brick manufacturer appeals. Statement of facts: The brick manufacturer had been manufacturing brick on his own land for 2 years. The burning of kiln under the brick manufacturing process causes sulphurous acid gas to escape from the kiln which is very injurious to persons who in hale it and destructive to many kinds of vegetation. The gas did not continually escape during the burning of kiln, but only the last 2 days of the process, and was carried into and over plaintiff owner’s land only when the wind was from the South, destroying vegetation on plaintiff owner’s property. There was another process by which brick could be made that didn’t cause gas to escape, but it was more expensive. When the land owner purchased land, brick manufacturer was not using his property for brick making, but did later on. Issues: (1) Was the court correct in affirming the referee’s judgment that the neighboring brick

manufacturer’s brick burning constituted a nuisance to the plaintiff owner given that the burning killed and injured vegetation on the plaintiff owner’s property?

(2) Was the court correct in affirming the referee’s grant of an injunction restraining defendant from burning brick on his property given that the damage to the plaintiff owner is large and substantial, that an injunction need not destroy the brick manufacturer’s business or interfere materially with the useful and necessary trade of brick making, and that possible damage to the brick manufacturer is unclear and does not appear to be great?

Result on appeal: Affirmed.Holding: (1) Yes, the court was correct in affirming the referee’s judgment that the neighboring brick

manufacturer’s brick burning constituted a nuisance to the plaintiff owner given that the burning killed and injured vegetation on the plaintiff owner’s property.

(2) Yes, the court was correct in affirming the referee’s grant of an injunction restraining defendant from burning brick on his property given that the damage to the plaintiff owner is large and substantial, that an injunction need not destroy the brick manufacturer’s business or interfere materially with the useful and necessary trade of brick making, and that possible damage to the brick manufacturer is unclear and does not appear to be great.

Doctrinal rationale: (1) Every person is bound to make reasonable use of his property so as not to unnecessarily

damage or annoy his neighbor. If he make unreasonable use of his land so as to produce material annoyance, inconvenience, discomfort, or hurt to his neighbor. he will be guilty of a nuisance to his neighbor and the law will hold him responsible for the consequent damage. To constitute a nuisance, the use must be such to produce a tangible and appreciable injury to

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neighboring property, or such as to render its enjoyment specifically uncomfortable or inconvenient.

(2) Where the damage to one complaining of a nuisance is small or trifling, and the damage to the one causing the nuisance will be large in case he be restrained, the courts will sometimes deny an injunction. Remedy of law was inadequate, harm to P was great, harm to D small, multiplicity of suits. Where an injunction prevents a multiplicity of suits, the injury is a recurring one, and unless the nuisance be restrained the litigation would be interminable, the policy of the law favors, and the peace and good order of society are best promoted by the termination of such litigations by a single suit and injunction should be granted.

Policy rationale: The cost to D to move his property is not costly.Additional Points: It is a general rule that every person may exercise exclusive dominion over his property, and subject it to such uses as will best subserve his own private interests. Case

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Name: Spur Industries, Inc. v. Del. E. Webb Development Co.SoC: A development company sued a neighboring feeding operation to enjoin the feeding operation from operating a cattle feedlot near the developing town, alleging that the feeding operation was a public nuisance because of the flies and the odor which were drifting or being blown by the prevailing south to north wind over the southern portion of the company’s new development.PB: Trial court ruled in favor of the plaintiff. Facts: Cattle in a commercial feedlot will produce 35 to 40 pounds of wet manure per day, per head, or over a million pounds of wet manure wet manure per day for 30,000 head of cattle, and that despite the admittedly good feedlot management and good housekeeping practices by the feeding operation, the resulting odor and flies produced an annoying if not unhealthy situation as far as the senior citizens of town were concerned. Statute provides, “The following conditions are specifically declared public nuisances dangerous to public health: Any condition or place in populous areas which constitutes a breeding place for flies, rodents, mosquitos and other insects which are capable of carrying and transmitting disease-causing organisms to any person or persons.”Issue:(1) Was the trial court correct in enjoining the feedlot where its operation of business is

lawful in the first instance, but becomes a nuisance by reason of a nearby residential area?(2) May the developer of a completely new town or urban area in a previously agricultural

area be required to indemnify the operator of the feedlot who must move or cease operation because of the presence of the residential area created by the developer?

RoA: AffirmedHolding:(1) Yes, the trial court was correct in enjoining the feedlot where its operation of business is

lawful in the first instance, but becomes a nuisance by reason of a nearby residential area. (2) Yes, the developer of a completely new town or urban area in a previously agricultural

area may be required to indemnify the operator of the feedlot who must move or cease operation because of the presence of the residential area created by the developer.

Doc R:(1) A private nuisance is one affecting a single individual or definite small number of

persons in the enjoyment of private rights not common to the public, while a public nuisance is one affecting the rights enjoyed by citizens as a part of the public. To constitute a public nuisance, the nuisance must affect a considerable number of people or an entire community or neighborhood. The feedlot was both a public and a private nuisance. Having shown a special injury in the loss of sales the development company has a standing to bring suit to enjoin the nuisance.

(2) It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result. Having brought people to the nuisance to the foreseeable detriment of the defendant, the plaintiff must indemnify the defendant for a reasonable amount of the cost of moving or shutting down.

Pol R: Protecting the public from diseaseAdd. Pt: The residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby.

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Part II: Legal Argument (Indefiniteness) Case Chart (CC)..................................................................................................................35

Case Briefs...............................................................................................................................Wakeman v. Wheeler & Wilson Manufacturing Co. .............................................................40Mayer v. McCreery................................................................................................................45United Press v. New York Press Co. .....................................................................................46Mackintosh v. Thompson.......................................................................................................47Mackintosh v. Kimball...........................................................................................................49Bluemner v. Garvin...............................................................................................................51Moran v. Standard Oil Co. ...................................................................................................53Varney v. Ditmars..................................................................................................................56Rubber Trading Co. v. Manhattan Rubber Manufacturing Co. ...........................................58Wood v. Lucy, Lady Duff Gordon..........................................................................................60Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory (I)...............................62Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory (II)..............................64United States Rubber Co. v. Silverstein.................................................................................65Cohen & Sons v. Lurie Woolen Co. ......................................................................................66St. Regis Paper Co. v. Hubbs & Hastings Paper Co. ...........................................................67Sun Printing & Publishing Association v. Remington Paper & Power Co. .........................69

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Case Name & SoC Contract Evidence & Holding Effect on other cases

Wakeman v. Wheeler & Wilson Manufacturing Co.

Distributor sued manufacturer to recover damages for profits lost on actual sales made by the distributor as a result of the manufacturer’s breach of contract to furnish the distributors’ machines at the lowest net gold price should the distributors sell fifty of the manufacturer’s machines.

Type of contract: Oral Executory (for action that had not yet been performed)

Indefinite Terms: (1)duration of the K, (2)price (“lowest net gold price”), (3)territory, (4)quantity, (5)delivery terms.

FACTS: P was to be the exclusive agent of D in Mexico if P could sell 50. 1st order for 50 filled then D refused to fill any more orders

- Parole Evidence: to give meaning to K.

- Expert testimony not permitted.

When certain damages are direct result o K breach, indef terms cannot lmt liability for the damages

Speculative terms to be determined by the jury

Unfair to refuse recovery just b/c the amt of loss isn’t 100% certain.

The K was enforced

Mayer v. McCreery

Lessee brought an action against Lessor for specific performance of an alleged agreement for the lessor to lease his premises in New York City to the lessee upon the completion of certain agreed upon alterations.

Type of contract: Written executory

Indefinite Terms: specifics of the alterations to be made on premises

Agreements to agree do not make a binding K.

All conditions of the K must be met before the K becomes operative.

There is a huge difference between this and Wakeman

Maybe Wakeman doesn’t apply in real property treatment (?)

United Press v. New York Press Co.

Plaintiff brought an action against defendant to recover damages in the amount of $93,000 ($300 a week from January 1, 1894 to January 1, 1900) for the breach of a contract in writing entered into between the parties wherein the plaintiff agreed to deliver the night news report to the defendant every morning in New York City and the defendant agreed to pay the plaintiff a sum not exceeding $300 every week until January 1, 1900 in exchange.

Type of contract: Written executory. Still in the middle K period

Indefinite Terms: Price term (“no more than $300” per week)

FACTS: D paid $300 a week until breach. D’s position is that the price could no longer be agreed upon.

- No parole evidence to create a fixed price term that could have been, but was not created by the parties at the time of the agreement

Executory K must have explicit terms and price is essential element of K; price here is subject to future agreement (ie Agreement to agree).

K operative only so long as the parties agreed on price

K is enforced, but D is still the prevailing party because only nominal damages were awarded

Dicta about enforcement (makes a difference that it is executory K; had goods been supplied to D, justice would require recovery for the fair value of services (Quantum Meruit) or the fair value of the goods (Quantum V.)) is turned into law in Mackintosh v. Kimball

With regard to evidence, overrules Wakeman.

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Case Name & SoC Contract Evidence & Holding Effect on other cases

Mackintosh v. Thompson

An employee brought this action for a breach of an alleged contract of employment against his employer to recover the reasonable value of his services above his salary, alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving, during the completion of two certain buildings in consideration of the agreement, which was to pay him in addition to his salary, the reasonable value of his services and time spent upon said buildings while working for the employer.

Type of contract: Oral Executed

Indefinite Terms: Compensation

FACTS: P’s motion to add an interest in profits was denied. P invokes QM even though his complaint is for breach of K.

- No Parole Evidence

Full intention of the parties must be ascertained by the K alone, whether executed or executory.

If the K can’t be enforced and it is executed. this is where QM becomes available, but here the complaint was for a breach of K.

There maybe an agreement to agree.

The contract is not enforced because (1)no def agreement was made, (2)No consid, since P had existing duty and was not obligated to do anything additional, and (3)P had already recovered salary for his services.

United Press Dicta affects this case: If this was for breach of an executory agreement, no recovery could be had in QM under United Press.

Mackintosh v. Kimball

An employee brought this second action for a breach of an alleged contract of employment against his employer to recover the reasonable value of his services above his salary, alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving, during the completion of two certain buildings in consideration of the agreement, which was to pay him in addition to his salary, the reasonable value of his services and time spent upon said buildings while working for the employer.

Type of contract: Oral executed

Indefinite Terms: compensation

FACTS: P modified conversation with Kimball; now Kimball assured P that his compensation would be satisfactory.

Where K is too indef to be enforced, QM is permitted for value of services but not in this case.

The K is not enforced and there is no QM.

Is the court confused?

United Press dicta now becomes law.

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Case Name & SoC Contract Evidence & Holding Effect on other cases

Bluemner v. Garvin

An associate architect sued the contracting architect for a breach of contract to recover damages for wrongful failure and refusal to comply with the terms of the said contract and for the reasonable value of services rendered.

Type of contract: Oral Executed

Indefinite Terms: value of commissions to be divided

- Allows evidence to determine QM

When K does not fix amt of commissions to be divided there can’t be action for recovery of damages under breach of K; under QM, P can only collect if enough factual evidence

K not enforced

Court gets confused between the first and second cause of action; it never sends the second to the jury.

Moran v. Standard Oil Co.

A paint seller brought two causes of action against the paint manufacturer for breach of contract to recover commissions earned as the manufacturer’s salesman from April to September, 1903 and to recover damages because of the breach of an employment contract under which he was employed, respectively.

Cardozo

Type of contract: Written with oral promises

Indefinite Terms: (1)When settlement of loss would be paid, (2)sched of commissions.

“Paint Case”

- P can’t use his own testimony as evidence for the value of services.

Where to parties use the word “agreement” mutuality of obligation is implied (Canons of Cardozo)

K is enforced

Overrules Mackintosh v. Thompson: implied duty on part of D to employ P for 5 yrs

Moves away fro United Press - now looking to intent.

Varney v. Ditmars

Employee brought this cause of action against his former employer for an alleged wrongful discharge to recover for the services under a formal employment contract from November 7, 1911 to December 31, 1911, at $40 per week and for a fair and reasonable percentage of the net profits of the employer’s business from February 1, 1911 to January 1, 1912.

Cardozo dissents

Type of contract: Oral executory K

Indefinite Terms: amount of profits

- No Parole evidence; expert testimony could be used to determine mkt value.

When terms of K give P a fair share or profit are vague, & amt can’t be compared from evidence evidence presented, ct didn’t err in dismissing case; Cardozo dissents - says United Press has been misunderstood Intent was present.

K is not enforced.

Restates Mackintosh, Bluemner, Mayer

Steps bk from Moran

Limits United Press: saying it didn’t stand for proposition that a K is unenforceable unless the price is explicit.

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Case Name & SoC Contract Evidence & Holding Effect on other cases

Rubber Trading Co. v. Manhattan Rubber Manufacturing Co.

A seller brought this action against the buyer to recover the profit lost from a breach of contract, alleging that the buyer failed to complete K.

Cardozo

Type of contract: executory Indefinite Terms: Terms of inspection.

NOTE: court implied term according to custom and practice

- Cardozo looks at custom between parties.

Where one party breaches a K and the other party (here P) fails to give notice that the K is abandoned and continues, damages can be awarded for the breach.

K is enforced.

No previous cases cited

Wood v. Lucy, Lady Duff Gordon

An agent sued “a creator of fashions” for damages sustained from her breach of contract.

Cardozo

Type of contract: exclusive dealings K

Indefinite Terms: mutuality of obligation

Where mutuality of obligation is not expressly stated in a K it may be implied through the actions of the parties

Moves away from formalities; uses instinct with obligation from Moran but disregard Moral that the drafter of K being in position to protect himself.

Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory (I & II)

An action brought by a jobber/buyer against a manufacturer/seller to recover damages for the manufacturer’s breach of contract.

(II)Decided w/o Cardozo

Type of contract: written executory

Indefinite Terms: amt of goods to be furnished (quantity)

- Course of dealing(1)When a K is made in good faith, the K contains a mutual obligation and is enforceable

D could have protected itself

(2)Where requirement K has an indef. quantity term and the buyer wasn’t req. to buy minimum amt of the good, K is invalid b/c consideration lacking.

Test: K enforceable when both parties can sue

(1)Looks only at conduct of breaching party not Cardozian

(2)Distinguished Lucy b/c no agency being paid half the profits which forced the P to act in good faith and buy

Here nothing to imply mutuality

United States Rubber Co. v. Silverstein

P sued D for a breach of contract to recover damages for default of payment, alleging that the contract guaranteed to cover P’s claim against D’s son.

Cardozo

Type of contract: written executory

Indefinite Terms: which son D is referring to

Where the guarantor makes an ambiguous promise, he will be held to the meaning that he had reason to believe that P would reasonably attach to the promise

K is enforced.

Different from United Press - not looking at scope of damages - just who the guarantee covers.

Follows Moran - indef term against writer of the K

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Case Name & SoC Contract Evidence & Holding Effect on other cases

Cohen & Sons v. Lurie Woolen Co.

Buyer sued seller to recover damages for a breach of contract under which P was given the privilege to confirm more of the good for sale if D could get more, alleging that upon exercise of this privilege, D withheld 500 pcs.

Cardozo Concurs

Type of contract: written option

Indefinite Terms: (1)price, (2)amt. (quantity), (3)time of additional supply

- Evidence of additional circumstances admissible to determine intent.

Where 2 parties enter into K and K has an option which is consid. for original, there is mutuality of obligation to make option enforceable.

Canon - if K missin terms the ct can substitute reasonable terms eq. w/ industry stds.

Option K is enforced.

Overrules Varney

Ct. now willing to infer meaning where one term left to one party

Cardozo cites Schlegel: there the option stood alone (it was voluntary and revocable - limits Schlegel b/c he doesn’t agree w/ the decision there,

St. Regis Paper Co. v. Hubbs & Hastings Paper Co.

Seller of paper sues buyer for a printing company for a breach of contract to recover damages for the unpaid balance on the sale of paper The buyer counterclaims for unpaid commissions and enforcement of the contract.

Cardozo

Type of contract: written executory

Indefinite Terms: (1)price after 3 mos. (agreement to agere)

- Parole evidence not allowed here

Where 2 parties enter into an executory K which states that it can be terminated if parties fail to agree, then good faith does not req. parties to do more than they are expressly bound by K to do and the ct. will not enforce an agreement to agree.

K is somewhat enforced (P wins)

P cites United Press, Mayer and Varney - terms are so indef as to have no legal significance

NOTE: if D would have been found to be a broker the case may have turned out differently

Sun Printing & Publishing Association v. Remington Paper & Power Co.

This is an action by a buyer against a sell to recover damages resulting from a breach of contract to sell paper.

Policy driven case: to teach the lawyers a lesson so to speak.

Cardozo

Type of contract: executory

Indefinite Terms: (1)price, (2)term of price (time)

Agreement in respect of time is as essential to a completed K as agreement in respect to price

Where an executory K lacks certainty w/ respect to the length of time to govern a new fixed price period, the K is incomplete and the D is not bound.

An agreement to agree is not binding or an enforceable contract.

K is not enforced

Cohen: if just price left open P might have have an option

St. Regis: an agreement to agree - D exercised right to leave K

Mayer: D’s right not affected by motive

United Press: D had no duty to accept term - could do business his way

Rubber: P fixed length of terms & coupled demand w/ condition there was no duty to accept

Dissent uses Wakeman and Cardozo’s own opinions.

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Case name & citation: Wakeman v. Wheeler & Wilson Manufacturing C., 101 N.Y. 205, 4 N.E. 264 (1886).Statement of the case: Distributor sued manufacturer to recover damages for profits lost on actual sales made by the distributor as a result of the manufacturer’s breach of contract to furnish the distributors’ machines at the lowest net gold price should the distributors sell fifty of the manufacturer’s machines.Procedure: At trial the distributors made various offers of evidence to show the value of their contract with the manufacturer through expert opinion and evidence of the number of machines sold through agencies established in Mexico. The court excluded this evidence. The trial judge instructed the jury that the distributors could only recover damages for the refusal of the manufacturer to fill the orders given on the ground that further award of damages would be too speculative. The jury rendered a verdict for the distributor. The court entered judgment for the distributor and awarded damages for the refusal of the defendant to fill orders actually given in the amount of $204. The distributor moved for a new trial. The trial court denied Distributor’s motion for a new trial. The appellate court affirmed the trial court’s judgment. The distributor appeals.Statement of facts: The manufacturers entered into a contract with the distributors whereby if the distributors sold fifty of the manufacturer’s machines to one firm or party in Mexico then for every fifty machines sold the, distributors would have the sole agency for the sale of the machines in that locality and the manufacturer’s would furnish machines at the lowest net gold prices. Subsequently, the distributor sold fifty machines to one Mead of the San Louis Potosi, The order was sent to the manufactures, filled, forwarded to Mexico, and paid for. After that, the distributor’s agent made another sale of fifty machines in another locality and an order for those machines was sent to the manufacturer. The manufacturer refused to fill the order and refused to perform, repudiated its agreement, and set up his own agencies in the localities of Mexico.Issues: (1) Did the trial court err in denying motion for new trial?(2) Did the trial court err by instructing the jury that the distributors could only recover

damages for the refusal of the manufacturer to fill the orders given? (3) Was the trial court correct in excluding expert testimony as evidence?(4) Did the trial court err in excluding evidence which would have given the jury some aid in

estimating the damages?Result on appeal: Reversed.Holding: Narrow:(1) Yes, the trial court erred in denying motion for new trial.(2) Yes, the trial court erred by instructing the jury that the distributors could only recover

damages for the refusal of the manufacturer to fill the orders given? (3) Yes, the trial court was correct in excluding expert testimony.(4) Yes, the trial court erred in excluding evidence that subsequent to its repudiation of its

agreement, the manufacturer established agencies in Mexico; and the number of machines sold through such agencies which would have given the jury some aid in estimating the damages?

Broad: Doctrinal rationale: (1)

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(2) All damages resulting necessarily and immediately and directly from the breach are recoverable, and not those that are contingent and uncertain.

(3) Exclude opinions and receive facts.(4) The damage caused to the distributors by the total breach of the agreement made by the

manufacturer is difficult to estimate. Policy rationale: All the facts should have been submitted to the jury with proper instructions, and their verdict would have approached as near the proper measure of justice as the nature of this case and the infirmity which attaches to the administration of law will admit.Additional Points: The court does not consider the bearing of the statute of frauds in this case because it was not brought up in trial. Class NotesAgency contract has some value to agent although uncertain, and it should be decided by jury what the value would be.

What should the ct do on remand to decide what the length of K would be

Would Hadley help determine the amt of damages to the parties.

Indefinite Terms: Relevant Price, Quantity, Time limit, delivery terms, costs, profits

The Case Analysis- Is there a contract? Is court’s assumption that there is a contract valid- What are the obligations on each side of the contract?- When did the contract take place? There may have been a K after P sold the machines

and D supplied them.- The contract terms are unclear

- What is the lowest net gold price?- How long does contract last?- What are the territorial limits of K?- Profits?

- How do you calculate damages in a case like this? - Does Hadley help in this instance? - Jury must speculate- Who’s an expert?

- Opinion is informal. Case too indefinite to enforce (?)- Cases the ct sites are less indefinite and focuses on profits, whereas in the instant case

everything is indefinite - Value of K is compensable for breach of K.- Masterton v. Mayer

- Combines Hadley and Polemis- Used by D’s attorney - Ct takes the case that D cites and uses it in support of P

- Bagley v. Smith : Uncertainty of what remedies should be vs. uncertainty that there are remedies.

- Taylor v, Bradley

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- Used by P’s lawyer- Ct. accepts P’s lawyer’s argument- K for term of yrs.- Profits that would have been realized but for default are recoverable

- Shell v. Plumb - no fixed time period so its closer to Wakeman than the previous cases the ct cites - How to figure out time terms of contract for damages

- statistics for life expectancy- expert testimony on how long certain Ks last.

- There are certain terms that should be determined by jury- Dennis v. Maxfield

- Moving away from situation in Wakeman- There are other types of indefinite K that still can get damages

- Simpson v. London - Damages for loss of time and loss of profit- natural and proximate and probable result of failure to deliver goods to determine

damages- Jacques v. Miller

- Loss of profits for a specific period- Ct. gave awarded and ordered specific performance

- How Machine Co. v, Bryson - Factually closest to this case- Maj.: Measure of damages is the value of time lost as the result of breach- Placed toward the end of the opinion and viewed as incorrect (ct. agrees with dissent)

- Civil Damage Act- Policy reasoning: The manufacturer used this small business as expert to get the info it

wanted about the mkt in Mexico and then dropped them. - Wheeler’s argument

- One of his arguments offsets the other- Violation of Statute of Frauds- Attacked Pleadings

- There was no binding K- Didn’t perform K- Didn’t plead special damages

- Wakeman’s argument- P is entitled to the bare value of his contract- P should be allowed to submit evidence that will aid in determining profits- Cites only two cases because he has a title-wave of cases against him

On remand- How do you determine what profits may have been?

- How much the manufacturer’s agencies in Mexico made- How do you determine what net gold price is?

- Expert testimony (?)- Put Wakeman on the stand to say what this price is in the mkt.- Use the D’s testimony

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Draft an argument for the D. - Informal arrangement to supply machines for certain sales - says there is a K for at least

51 machines and you’d pay for those- Any future arrangements would be to speculative- A sale’s K that is not enforceable because there’s no meeting of the minds

NOTE: What determines the case is the normative perspective of the court (ie: the second because)- A better Argument for D

- K was not a contract of agency, but a sales K with privilege: can recover for machines already sold, but anything beyond that is not binding because of the informality of K. There is no logical stopping point under the arrangement the distributor had with the

- Thus Breach of K was failure to provide P with machines and any est. of future sales would be speculative. If ct. enters evidence that is remote and speculative it should be req that the elements of the evidence should be plead.

- Normatively: argue that D didn’t take advantage of P, but that P in fact took advantage of D.

- Statute of Frauds- Historical purpose: Prevention of fraudulent practices which commonly occurred and

led to perjury- Requiring that certain obligations be proved only through a writing

- did cut down on the number of false claims- did nothing about forgery, etc.

- Section 4: Addressed K type in Wakeman, Ks not to be performed within one yr of the making thereof.

- Only oral K that specifies that K is not to be performed within one yr. requires writing

- D’s argument in misquoting the statute of frauds bars a enforcement of an oral K that fails to specify that K is not to be performed within one yr. --> Oral K that does not specify that K is to be performed within one yr. requires a writing.

- When K is for indef term but performance can possibly be performed within a yr. cts usually do not apply statute of frauds.

- How did Ct. handle Statute of Frauds- It ignored statute of frauds because D didn’t bring it up below so he waived his

right to bring it up on appeal. - Use of expert testimony

- How do you prove what the mkt value should be for damages- How long to Ks of this nature usually last

- Good Faith- Normative Lens: D used the labor of P to find out if Mexico mkt was a good mkt for

selling machines (bad faith)- Finding of a K and allowing case to go to jury reflects the court’s interest in good faith

in contracting.

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Case name & citation: Mayer v. McCreery, 119 N.Y. 434, N.E. 1045 (1890)Statement of the case: Lessee brought an action against Lessor for specific performance of an alleged agreement for the lessor to lease his premises in New York City to the lessee upon certain terms. Procedure: The lessor denied the making of an agreement. The trial court entered judgment for the lessee and awarded damages for the lessor’s The lessor appealed. The General Term of the Supreme Court in the first judicial department reversed the judgment in favor of the lessee and granted a new trial. The lessee appeals. Statement of facts: Lessee sent a letter to the lessor offering to lease the lessor’s property for 21 years for a yearly rent of $5,250 a year after certain alterations were made, terms to be mutually agreed upon. The same day he received the offer, the lessor accepted it, then after receiving advice on from his counsel, the lessor sent another letter to the lessee, saying that the lease could not be made. The lessor subsequently sold the property in question. Issues: Was the lower court correct in reversing a judgment for the lessee, holding that the letters between the lessee and lessor did not constitute a completed agreement to lease, forming in substance a lease of the aforementioned premises, given that the lessor declines to make the lease and the parties do not mutually agree upon the alterations to be made?Result on appeal: Affirmed.Holding: Yes, the lower court was correct in reversing a judgment for the lessee, holding that the letters between the lessee and lessor did not constitute a completed agreement to lease, forming in substance a lease of the aforementioned premises, given that the lessor declines to make the lease and the parties do not mutually agree upon the alterations to be made.Doctrinal rationale: There is no valid agreement excepting an agreement to give a lease provided the parties shall agree upon the plans for alterations thereafter to be made. The lessor agreed that he would give a lease, provided he and the lessee should subsequently agree upon plans for alterations to be made. But he was under no obligation to agree upon such plans. There was only an agreement to agree. Policy rationale:

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Case name & citation: United Press v. New York Press Co., 164 N.Y. 406, 58 N.E. 527 (1900).Statement of the case: Plaintiff brought an action against defendant to recover damages in the amount of $93,000 ($300 a week from January 1, 1894 to January 1, 1900) for the breach of a contract in writing entered into between the parties wherein the plaintiff agreed to deliver the night news report to the defendant every morning in New York City and the defendant agreed to pay the plaintiff a sum not exceeding $300 every week until January 1, 1900 in exchange. Procedure: The defendant moved to dismiss the plaintiff’s complaint. The trial court denied the motion to dismiss the complaint. At the end of the plaintiff’s case, the defendant offering no evidence, a verdict was directed for the plaintiff in the sum of six cents on the ground that there was a technical breach of contract for which only nominal damages might be awarded. The plaintiff appealed. The Appellate Division affirmed the judgment of the trial court. Plaintiff appeals. Statement of facts: The contract was made in 1892 and the parties proceeded under it (with the defendant paying the plaintiff $300 every week for delivery of the night news report) until January 1, 1984 when the defendant notified the plaintiff to cease sending the news report and stating that it was necessary for the plaintiff to make a reduction in the cost of the news service. Issues: Was the trial court correct in awarding six cents in nominal damages to the plaintiff for the defendant’s breach of contract on the grounds that the contract was so indefinite, by reason of its failure to state the price to be paid by the defendant, that it precluded a recovery of substantial damages for its breach, given that the contract provided that the defendant was to pay a sum not exceeding $300 a week for the plaintiff’s services?Result on appeal: Affirmed.Holding: Yes, the trial court was correct in awarding six cents in nominal damages to the plaintiff for the defendant’s breach of contract on the grounds that the contract was so indefinite, by reason of its failure to state the price to be paid by the defendant, that it precluded a recovery of substantial damages for its breach, given that the contract provided that the defendant was to pay a sum not exceeding $300 a week for the plaintiff’s services.Doctrinal rationale: The statute of frauds requires that the memorandum contain all the material terms of the contract between the parties and that it must show on its face what the whole agreement is so far as the same is executory and remains to be performed, and rests upon unfulfilled promise.Policy rationale:

Class Notes- Ct. didn’t think about case in commercial terms- Lawyers didn’t argue for commercial terms- It hurts business to have a set price for an extended period of time- Used later in a variety pf case- Did the ct. find the K to be valid or invalid is not the question; ct found there was a valid

executory K- The only question was whether substantial damages should be given- Case is not about validity of K, but rather about the scope of damages.

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Case name & citation: MacKintosh v. ThompsonStatement of the case: An employee brought this action for a breach of an alleged contract of employment against his employer to recover the reasonable value of his services above his salary, alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving, during the completion of two certain buildings in consideration of the agreement, which was to pay him in addition to his salary, the reasonable value of his services and time spent upon said buildings while working for the employer.Procedure: At the opening of the trial the employee’s attorney claimed a reasonable interest in the two buildings if he should stay until they were completed, an interest in profits. An objection was made to showing this under the complaint. The court sustained the objection because the complaint said nothing about profits. The employee’s attorney requested leave to amend the complaint. The employer’s attorney opposed the amendment. The court denied the motion and exception was taken. Evidence of the employer’s profits on the two buildings was excluded and exception taken. The employee rested. The employer made a motion to dismiss the complaint. The employee made a motion to go to the jury on the question of how much the employee’s services were worth which the trial court denied. The employee appeals from the judgment dismissing the complaint.Statement of facts: The employee was an architect employed by the defendants. He was working for the employer at a stated salary per week. Dissatisfied with the amount received, he told the employer he intended to leave their employ unless they paid him more money. The employer told him that no increase could be made just then, but he would be paid more if more work came in. When more work came in the employee once again said that if he was not paid more he would start for himself. The employer said that his idea was to give him an interest in two buildings being completed, and stated “You can rely on me; I will see that it is alright,” but further stated, “You don’t know what I have in view.” The employee continued to work with the employer at the same salary with the understanding that the share in profits was in addition to his regular salary. Issue: Was the trial court correct in dismissing the complaint for an alleged breach of contract given that there was no definite agreement of any kind for an increase of salary for any definite period or any stated amount and that there was no consideration for an alleged promise to pay an increase in salary since the employee does not say that he agreed or was under obligation to remain with the employers for any fixed period of time?Result on appeal: Affirmed with cost.Holding: Yes, the trial court was correct in dismissing the complaint for an alleged breach of contract given that there was no definite agreement of any kind for an increase of salary for any definite period or any stated amount and that there was no consideration for an alleged promise to pay an increase in salary since the employee does not say that he agreed or was under obligation to remain with the employers for any fixed period of time.Doctrinal rationale: (Rule) For the validity of a contract, the promise or the agreement of the parties to it must be certain and explicit, and their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite, and if defective, parol proof cannot be resorted to. To be enforced, whether executory or executed, contracts must be sufficiently definite and certain terms that it can be seen that the minds of the parties have met upon some settled terms. (Application) The most that can be predicated upon the conversation that employer had with employee is that the employer was favorably disposed to the consideration of the question of increased salary.

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Policy rationale:

Class Notes- On redirect examination, P testified that he was promised an interest in profits, but did

not say anything about this in the direct examination. - Promise for price above salary is not valid unless in writing (?) - Proof and pleadings don’t conform to one another, because in P plead the

reasonable value of his services and sought to prove interest in profits. - P tried to argue quantum meruit, quantum valebant, when he had a formal contract. - NOTE: Ct. didn’t really tell lawyers what they needed to argue by their holdings, so the

lawyers a re trying a variety of different things

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Case name & citation: MacKintosh v. KimballStatement of the case: An employee brought this second action for a breach of an alleged contract of employment against his employer to recover the reasonable value of his services above his salary, alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving, during the completion of two certain buildings in consideration of the agreement, which was to pay him in addition to his salary, the reasonable value of his services and time spent upon said buildings while working for the employer.Procedure: In the employee’s first action, the complaint was dismissed in the trial court and the appellate court affirmed the trial court’s judgment. The employee brought this second action to recover for the same cause. At trial, upon rebuttal the employee was recalled and testified that he remembered a conversation which took place between himself and a third party with the employer about a month before the dissolution of the copartnership. The employee was then asked in detail about this conversation. The employer’s objected to this on the grounds that it was incompetent, irrelevant and immaterial and not binding on the ground that the employer’s copartner was not present and the partnership had been dissolved, and that nothing said by the employer could make a contract. The trial court held that the employee would have the right to give it as original evidence against the employer and therefore overruled the objection, The employer excepted. The third party’s testimony was also objected by the employer and the objection was overruled and the employer again excepted.Statement of facts: The employee was an architect employed by the defendants. He was working for the employer at a stated salary per week. Dissatisfied with the amount received, he told the employer he intended to leave their employ unless they paid him more money. The employer told him that no increase could be made just then, but he would be paid more if more work came in. When more work came in the employee once again said that if he was not paid more he would start for himself. The employer said that his idea was to give him an interest in two buildings being completed. The employee stated that his former relations with the firm were not altogether satisfactory. The employer responded that it is was his partner’s fault. The employee asked what what the amount of increase in his salary would be and the employer answered, “You can rely on me; I will see that it is alright,” and further, “You don’t know what I have in view.” The employee continued to work with the employer at the same salary with the understanding that the share in profits was in addition to his regular salary. Issues: (1) Did the trial court err in entering judgment for the defendant given that the employee’s

additional testimony that the employer promised that the increase would be satisfactory to the employee and that the employer said “I will see that you get a satisfactory amount” shows that no definite arrangement was made or intended to be made and that all that was promised was that some arrangement in the future would be made which would be satisfactory to the employee and which would insure to him a larger compensation than he had been receiving from his employers?

(2) Did the trial court err in admitting as evidence testimony given by one defendant against himself and another defendant in an action that was joint against the employer and his copartner?

Result on appeal: Judgment reversed and a new trial ordered with costs to the employer to abide the event. Holding:

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(1) Yes, the trial court erred in entering judgment for the defendant given that the employee’s additional testimony that the employer promised that the increase would be satisfactory to the employee and that the employer said “I will see that you get a satisfactory amount” shows that no definite arrangement was made or intended to be made and that all that was promised was that some arrangement in the future would be made which would be satisfactory to the employee and which would insure to him a larger compensation than he had been receiving from his employers.

(2) Yes, the trial court erred in admitting as evidence testimony given by one defendant against himself and another defendant in an action that was joint against the employer and his copartner.

Doctrinal rationale: (1) (Rule) For the validity of a contract, the promise or the agreement of the parties to it must

be certain and explicit, and their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite. (Application) There is no contract which can be enforced which entitles the employee to receive anything in addition to that which was paid hi and which he received as compensation for his services.

(2) The declarations of one partner after the dissolution of a firm, not made in the business of winding up and not connected with any transaction or dealing connected with the dissolution of the partnership, are inadmissible against his copartner. He may bind himself by his admissions, but as to his former partners, his agency, except for special purposes, is terminated by the dissolution, and his admissions are like those of a stranger and they are not bound them.

Policy rationale: Additional Points: The court called attention to the fact that the Counsel for the employee printed in his brief a private letter from another judge to express its disapproval of an attempt to use what was evidently a private letter as an authority in the court.

Class Notes- Different Facts: Thompson said earlier that if any more work came in that P would get a

raise. - To avoid United Press, P claims that United Press only deals with executory Ks, but this

K was already executed, and therefore doesn’t req. specific price terms. Ct. doesn’t accept P’s claim.

- Point that P could work in his own way suggests that P was a partner and therefore entitled to portion of the profits

- Ct. won’t give quantum meruit recovery because P had a salary and won’t give normal K damages because the terms are too vague and indefinite.

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Case name & citation: Bluemner v. GarvinStatement of the case: An associate architect sued the contracting architect for a breach of contract to recover damages for wrongful failure and refusal to comply with the terms of the said contract and for the reasonable value of services rendered. Procedure: Plaintiff filed 2 causes of action against the defendant. Before testimony was offered, the defendant moved to dismiss the first cause of action. The trial court denied the defendant’s motion. Plaintiff’s testimony served as evidence to prove the special contract alleged in the first cause of action in the complaint and as evidence of the reasonable value of services rendered for the second cause of action. At the close of the plaintiff’s case, the defendant moved again to dismiss the first cause of action. The trial court denied this motion and the defendant asked the court to direct the plaintiff to elect upon which cause of action set out in the complaint he intended to go to the jury. The trial court also denied this motion, but charged the jury solely upon the first cause of action. The jury returned a verdict for the plaintiff in the amount of the value of services rendered. The trial court entered judgment for the plaintiff and awarded damages. The defendant moved for a new trial. The trial court denied the defendant’s motion. Defendant appeals.Statement of facts: The defendant was employed as an architect to design a public building and to submit the plans for the building to a commission for approval. The defendant did this, but his plans and designs were rejected by the commission as improper and unfit. The defendant then entered into an agreement with the plaintiff whereby the plaintiff agreed to draw the designs and plans for said building and in exchange the defendant would recognize the plaintiff as the author and designer of the plans and would fairly share with plaintiff the commissions received from his contract with the city. Plaintiff drew plans and designs for the building without any material assistance from the defendant, which were then approved by the commission. However the defendant refused to recognize the plaintiff as the author and designer of the plans and refused to pay plaintiff the one-half of commissions received by the defendant. Plaintiff also alleged that he rendered service to the defendant that were reasonably worth $10,000 of which only $200 had been paid. Issues: (1) Did the trial court err in refusing to dismiss the complaint, holding that the first cause of

action set up an enforceable special contract, given that there is nothing in the contract which fixes the amount of the commissions to be divided, or anything in its terms to define what would be a fair division of the commissions?

(2) Did the trial court err in entering the jury’s verdict, awarding plaintiff for the reasonable value of his services, given that the only testimony as to the value of the services actually rendered was the opinion of the plaintiff himself, and given that the trial judge only instructed the jury on the theory of formal expressed contracts?

Result on appeal: Judgment reversed and a new trial ordered.Holding: (1) Yes, the trial court erred in refusing to dismiss the complaint, holding that the first cause

of action set up an enforceable special contract, given that there is nothing in the contract which fixes the amount of the commissions to be divided, or anything in its terms to define what would be a fair division of the commissions.

(2) Yes, the trial court erred in entering the jury’s verdict, awarding plaintiff for the reasonable value of his services, given that the only testimony as to the value of the services

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actually rendered was the opinion of the plaintiff himself, and given that the trial judge only instructed the jury on the theory of formal expressed contracts.

Doctrinal rationale: (1) If the intention of the parties in so essential a particular cannot be ascertained from the

instrument, neither the court nor the jury will be allowed to make an agreement for them upon the subject. For the validity of a contract, the promise of the agreement of the parties to it must be certain and explicit, and that their full intention may be ascertained to a reasonable degree of certainty.

(2) There is insufficient evidence to sustain the jury’s verdict. The court did not submit the case to the jury upon the theory of quantum meruit.

Policy rationale:

Class Notes- Garvin had never been trained as an architect- Express K for fair share of commissions- 1st cause of action for $20k second cause of action for $10k- Judge only directs jury on the breach of contract- Lawyer gave ct. two ways to give him a verdict.

- This is good because he is not sure how the court will interpret based on prior cases- Good attorney for P because he gives claims to recover under both theories of K

(quantum meruit, and express K)- United Press isn’t good here because it was for an executory contract, and the case here is

not an executory contract. Also in United Press the only question was the scope of damages, not whether there was a contract.

- The court below focused on formal expressed contract theory, not quantum meruit, but awarded damages that were closer to quantum meruit.

- In the new trial the only claim will be on quantum meruit because the court said that P could not recover on the formal expressed contract theory because the terms were too indefinite.

- To prove what the reasonable value of services is: P could say what he understood to be the reasonable value of his services, Industry custom, etc.

- P could have sought specific performance of the K.- In Mackintosh, P was being paid a salary. In this case, the P was not paid anything for his

services. - By filing both causes of action, P’s lawyer was forcing the court to express

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Case name & citation: Moran v. Standard Oil Co.Statement of the case: A paint seller brought two causes of action against the paint manufacturer for breach of contract to recover commissions earned as the manufacturer’s salesman from April to September, 1903 and to recover damages because of the breach of an employment contract under which he was employed, respectively. Procedure: The trial judge dismissed the cause of action for damages on ground that the contract, though imposing a duty on the P to serve for five years, did not impose a duty on the D to employ P for five years. The cause of action for commissions was submitted to the jury, who found a verdict for the P. The Appellate Division of the Supreme Court affirmed the trial court’s judgement. Both P and D appeal. D on the ground that P should not have recovered anything, and P on the ground that he did not recover enough.Statement of facts: In May 1901, the P entered into an agreement with the D whereby P agreed to only buy paint from the defendant and in exchange P would have the privilege of handling D’s entire output. From May 1901 to April 1903, there was no agency between the two parties. After P conformed to the agreement his customer’s began complaining about the quality of D’s paint and P passed complaints on to D’s superintendent. D’s super assured P that if he would keep track of the bad goods and try to reclaim the trade, the D would make it right with him and repay him for any loss. There is not evidence of when this agreement was made. The P says that he was made to understand that in return for his co-operation in developing this new brach of D’s business his losses due to D’s defective goods would at some time be made good from D’s coffers. The D denies ever saying anything to give P this understanding. P owed a balance of $27,650.79 to D. P ceased to buy paint from D and became its agent under a contract to serve for commission. Before this agreement was had, P claims, he had the understanding that the entire balance minus about $5,200 or $5,300, would be cancelled to compensate him for the loss which he had suffered. The P made a claim of loss. and the D listened in silence. In April 1903 the P entered in a contract of employment which provided that P “agrees to sell for the term of 5 yrs. from the date hereof ...” and “In Consideration of the commissions inbefore provided to be paid by the party of the second part, the party of the first part agrees to guarantee the payment of all sales of goods made by him.” P was informed before K’s execution that any commissions due him under it would be held back and applied in reduction of his indebtedness for the goods which he had bought. By July 1903, the P paid D on account of the old debt $5,249.58, which is all P said he owed. At that time he had earned commissions of about $4,000. In September 1903 P asked for said commissions and was told it was being applied in the reduction of the residue of his debt. P again asked for his commissions when they amounted to $6,447.19 and again the D refused to pay them and, according to P, refused to give him any orders.Issues: (1) Did trial court err in admitting the evidence to prove the extent of P’s losses because of

diverted trade given that P did not place before the jury the volume of his business with each customer, and the circumstances tending to show the reason for the breaking off of their dealings?

(2) Did the trial judge err in holding that the contract imposed no obligation on the D to employ the P for 5 yrs and that at the D’s option it was terminable at will given that the the defendant not only agreed to accept P’s promise to serve it for 5 yrs. by the sale of its goods, but also agreed to pay him commissions on the sales of said goods?

Result on appeal: Reversed.

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Holding: (1) Yes, trial court erred in admitting the evidence to prove the extent of P’s losses because

of diverted trade given that P did not place before the jury the volume of his business with each customer, and the circumstances tending to show the reason for the breaking off of their dealings. Thus verdict for the P cannot stand

(2) Yes, the trial judge erred in holding that the contract imposed no obligation on the D to employ the P for 5 yrs and that at the D’s option it was terminable at will given that the the defendant not only agreed to accept P’s promise to serve it for 5 yrs. by the sale of its goods, but also agreed to pay him commissions on the sales of said goods. Thus dismissal of the second cause was in error.

Doctrinal rationale: (1) The burden rested on P to show by competent evidence the loss which he had suffered.

When defective goods are sold the measure of damages does not include the profits lost from the vendee’s failure to resell them unless such loss is proved to have been within the contemplation of the parties. Such losses would be recoverable it the vendor undertook to indemnify against them; but they ought to be proved with reasonable certainty. P failed to satisfy that requirement. P should have proved the premises and let the jury draw the conclusion. He proved the conclusion and withheld the premises. In effect he stated his opinion as to the loss of profits resulting from diverted trade.

(2) There may be a “promise” to serve without a promise to employ, but there can be no “agreement” for service without mutuality of rights and duties. The word “agreement” necessarily imports two parties. It is not merely a promise made by one party to the other, but it is an agreement made by both and binding on both by every principle of law and morality applicable to the construction of contracts. Since K was drafted by D it must be construed against him in a manner he should have assumed the other party to understand.

Policy rationale: (1) Open price terms are necessary in the business world. (2)Moran didn’t have a lawyer’s team and was a small business owner against a big corporation

Class Notes- Outputs K: Manufacturer has security under the first contract, and if the manufacturer’s

product is good the seller would have a monopoly on that item and may be able to turn a high profit

- NO agency until April 1903: independent contractor; what’s the difference does this make?

- What does “silence” mean? - This case diverged from United Press. - T. Ct. said that there was no K from April to September 1903, but one could be proved. --

> Ct. finds that this was not quite right. - Mutuality: Read the K favorably to the non-drafting party, “agreement” means there is a

K. --> determining intent- There is nothing in United Press about agreement or interpreting K against the party who

drafted it. Difference is United Press was not about whether there was a K, but rather the scope of damages. Moran finds that there is a K. Also in United Press, there was no intent to be bound; however, here there was intent to be bound.

- P Lawyer’s argument leads judge to the Mutuality concept rather than United Press- How can damages be computed here?

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- What is the rule regarding price?- What is the cause that drives Cardozo? The doctrine? The Policy?

- Probably the policy: - open price terms are necessary in the business world.- Moran didn’t have a lawyer’s team and was a small business owner against a big

corporation- Doctrine: Cardozo wants to change doctrine, but has to do it over time.

Judge Cardozo said that P probably had a right to commissions, but he didn’t make out the case well enough (failed to prove correctly: give facts leading to conclusion and let jury conclude).

Lower court tried to submit formal K theory to allow recovery, but they also found that there was no K. The commissions and schedules should have been under quantum meruit theory.

Reasons for confusion- want to protect business interest, but not sure how --> reason not to become to restrictive- not sure what United Press Court wanted in a binding contracts --> reason not to become

to open- Lawyers aren’t informing the cts of the correct behavior in the mkt.- many different kinds of facts in cases being presented

Cardozo is trying to make a distinction between what United Press did and what they said.

Why doesn’t Cardozo cite Wakeman v. Wheeler?

Difference in power is the difference between United Press and Moran (ie: equal footing) --> fundamental notion of equality in contractual obligations.

In this case the presumption is that if one party is bound the other party is bound. The opposite is true in United Press.

How could you argue that Moran is not inconsistent with United Press?- Distinguish on the basis that United Press didn’t decide whether there was a contract, but

the extent of damages and this case decides whether there is a binding k. However there is still the issue of damages in both cases

NOTE: What std does ct. set and does their ruling live up to that std?

Cardozo uses the cases in the lawyer’s arguments

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Case name & citation: Varney v. DitmarsStatement of the case: Employee brought this cause of action against his former employer for an alleged wrongful discharge to recover for the services under a formal employment contract from November 7, 1911 to December 31, 1911, at $40 per week and for a fair and reasonable percentage of the net profits of the employer’s business from February 1, 1911 to January 1, 1912.Procedure: At the trial the employee was the only witness sworn as to the alleged contract and at the close of his case the complaint was dismissed after the close of P’s case. The Appellate Division affirmed the trial court’s judgment in favor of the defendant. The Plaintiff appeals.Statement of facts: D is an architect employing engineers, draftsmen and other assistants. The plaintiff is an architect and draftsman. In October, 1910 he applied to the D for employment and said wanted wages of $40 a week. He was employed at $35 a week. The D told P and a third party, “I am going to give you $5 more a week; if you boys will go on and continue the way you have been and get me out of this trouble and get these jobs started that were in the office 3 yrs, on the first of next January I will close my books and give you a fair share of my profits.” Thereafter P was paid $40 a week. On Nov. 6, 1911, the night before the general election, D told the employees that he wanted them to work on election day. P told D that he wanted to remain at home to attend an election in the village where he lived. P took ill on election day and remained at his house ill until Dec. 1, 1911. On Nov. 11, the D terminated P’s employment. After P recovered he returned to work and told D that he was ready to continue his services under the agreement. D denied the agreement and refused to permit P to continue his service. Thereafter P received $50 for special work.Issues: (1) Whether P could recover for wages of $40 a week for the remainder of the year(2) Whether P could recover for a fair and reasonable percentage of the net profits of

employer’s businessResult on appeal: Affirmed with costs.Holding: (1) P could not recover for wages of $40 a week for the remainder of the year.(2) P could not recover for a fair and reasonable percentage of the net profits of employer’s

business.Doctrinal rationale: (1) Indefinite because the court cannot discern the term of engagement. There was nothing in

the contract specifying the length of service. For the validity of a K, the promise or agreement, of the parties to it must be certain and explicit and that their full intention may be ascertained to a reasonable degree of certainty. There must be neither vague, nor definite. (citing United Press)

(2) United Press was not intended to assert that a K of sale is unenforceable unless the price is expressly mentioned and determined. A definite price is not necessary to make a K binding, even so, a share of the defendant’s profits, is not only uncertain, but it is necessarily affected by so many other facts that are in themselves indefinite and uncertain that the intention of the parties is pure conjecture.

Policy rationale: Additional Points: (Dicta) A reasonable price may be implied or reasonable and fair maybe construed as market value in contracts for the sale of goods or for hire without a fixed price or consideration.

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(Dissent) Cardozo concurs in the conclusion that profits were not to be included as an element of damage. He did not concur however in the conclusion that P failed to make out a case of damage to the extent of his loss of salary. The implication was that P’s employment should continue to the end of the year when the books were to be closed.

Class NotesCt. looks to intention of the parties and to the business meeting. How does ct. determine what a definite price is? (Dissent) classify Ks according to intent and reasonable implications.

Makes United Press look like it applies to a specific case not a category of cases.

Dissent limits United Press saying that parties never intended to be bound- says that each case should be decided based on specifics rather than a general rule- says price may be determined by custom (parties, industry, type of K). --> signal to P to

present evidence of their claim.

Moving away from United PressUnited Press --> Moran --> Varney(Majority) --> Varney(Dissent: Cardozo)--> Rubber(Custom considerations)

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Case name & citation: Rubber Trading Co. v. Manhattan Rubber Manufacturing Co.Statement of the case: A seller brought this action against the buyer to recover the profit lost from a breach of contract, alleging that the buyer failed to complete K. Procedure: P’s complaint first alleged a tender of full performance, D’s refusal to receive them. Shortly before trial, it became apparent that this theory would not hold because P’s October letter was a departure from the original K. P made no claim to the contrary. The trial judge charged without objection that P had no right to demand stipulation that the goods were satisfactory before delivery; that the insistence upon such demand invalidated the tender; and that there had been no performance by P in the case, nor is one claimed. P amended its complaint, and changed the theory of it’s action. It alleged that in October D wrongfully repudiated the K, and notified P that it would thereafter perform the same, and that this anticipatory breach made tender of the rubber needless. D’s announcement that withdrawal of the goods from the warehouse must be w/o prejudice to their rejection afterwards, and the notice that the discs delivered must be round were relied on as of repudiation. At trial the jury returned a verdict for P, which the trial court entered as judgment. D appealed. The appellate court affirmed the trial court’s judgment in favor of P. D appeals. Statement of facts: D, a manufacturer of rubber, agreed to buy from P, an importer, fifteen tons of rubber at $1 per lb.; delivery was to be made at the rate of about five tons a month in September, October and November, and delivery of orders were to be sent to D when the rubber was ready. Goods were to be billed on a credit of ten days. The first delivery under this K was made in August, and was paid for in September, before it had been inspected. Upon inspection, defects were discovered, and 7,900 lbs. returned with P’s consent. A second shipment arrived from abroad in October. D’s president was notified of the arrival of the vessel, and was asked to inspect the rubber while it lay in the warehouse or on the dock. He refused and said he would not accept the shipment till the rubber reached D’s factory, where it could be carefully examined and that D wouldn’t pay until and unless the rubber was satisfactory. P didn’t want the acceptance to be postponed until it had been delivered to the factory. P wrote to D in October stating that it had placed about 11,200 lbs. of rubber at the warehouse, which it tendered to D as the October delivery under the K; requesting that D make further inspection of the rubber as soon ASAP; instructing D to notify P when it would be convenient for D to make the inspection of the rubber so that P could pace enough men as D’s disposal to enable it to make the examination quickly and easily; and finally stating that delivery orders were ready to be handled as soon as D notified P. D sent back word to forward delivery for inspection and if it’s quality was not right payment would not be made. P retorted that the rubber must be approved at the warehouse, and that if the shipment left the warehouse, it be acknowledgement of acceptance. Other shipments arrived from abroad in November. Still neither P nor D yielded. Each notified the other that the K had been broken. P sold part of the rubber at a reduced price; the rest it retained. Issues: Did the appellate court err in affirming a judgment in favor of P on the ground that D wrongfully repudiated the K by his announcement that withdrawal of the goods from the warehouse must be w/o prejudice to their rejection afterwards given that P did not rescind the K for D’s anticipatory breach, but rather rescinded for D’s rejection of a tender which imposed an unauthorized condition?Result on appeal: Reversed and a new trial granted. Holding: Yes, the appellate court erred in affirming a judgment in favor of P on the ground that D wrongfully repudiated the K by his announcement that withdrawal of the goods from the warehouse must be w/o prejudice to their rejection afterwards given that P did not rescind the K

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for D’s anticipatory breach, but rather rescinded for D’s rejection of a tender which imposed an unauthorized condition.Doctrinal rationale: Even though D was at fault, the K survived unless P gave notice of its election to treat it as abandoned. P’s October letter did not abandon the old K, but rather asserted rights under it. P breached the K w/o regard for D’s breach, thus the K still stands and remains alive as much for the benefit of the buyer as for the benefit of the seller. If D never retracted its unlawful claim of right, the like is true of P. Both are equally chargeable with wrong. Policy rationale: Additional Points: Implies terms according to industry custom and reasonable practice (goes beyond the four corners of the K).

Class Notes- Custom between parties was to be inspected at the warehouse or on dock; these

inspections are for patent defects, once at the factory the rubber is inspected for latent defects, if such defects were found the goods may have been returned.

- Price of rubber dropped in September. - On remand, it is most likely that D will win, but will not receive any damage- NOTE: Attempt by seller to induce buyer to live up to the contract does not waive right

to sue for anticipatory breach. (Cases citing to Cardozo)- Notion of unfairness because the buyer was the first to repudiate the K. - Cardozo contrued K in terms of custom, action of the parties, and intent of the parties

beyond the express terms of the K.

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Case name & citation: Wood v. Lucy, Lady Duff GordonStatement of the case: An agent sued “a creator of fashions” for damages sustained from her breach of contract. Procedure: P filed a complaint against D for breach of K. D demurred, alleging that there was no K because there was no consideration. The trial court denied D’s motion for judgment on the pleadings. D appealed. The appellate court reversed the trial court’s judgment and granted said motion. P appeals.Statement of facts: D is a popular fashion designer. Clothing manufacturer’s pay D for her certificate of approval. Clothing issued in her name have a new value in the public mind. D employed P to help her turn this vogue into money. P possesses a business organization adapted to placing endorsements. P was to have the exclusive right, subject to D’s approval, to place her endorsements on the designs of others and to place D’s own designs on sale or to license and market them. In return, D was to have 1/2 of all profits and revenues derived from any contracts he might make. P also promises that he will account for all moneys received by him, and that he will take out all such patents and copyrights and trademarks as may in his judgment be necessary to protect the rights and articles affected by the agreement. The K was to last for one yr. P says that he kept the K on his part and D broke it by placing her endorsement on clothing without his knowledge and withholding the profits. The agreement of employment is signed by both parties. Issues: Did the appellate court err in reversing the trial court’s decision in favor of P and holding that the agreement of employment lacks the elements of a contract because P does not bind himself to anything, given that D’s sole compensation for the grant of exclusive agency is to be one half of all the profits resulting from P’s efforts and given that P promised that he would account for all moneys received by him, and that he would take out all such patents and copyrights and trademarks as may in his judgment be necessary to protect the rights and articles affected by the agreement?Result on appeal: Reversed.Holding: Yes, the appellate court erred in reversing the trial court’s decision in favor of P and holding that the agreement of employment lacks the elements of a contract because P does not bind himself to anything, given that D’s sole compensation for the grant of exclusive agency is to be one half of all the profits resulting from P’s efforts and given that P promised that he would account for all moneys received by him, and that he would take out all such patents and copyrights and trademarks as may in his judgment be necessary to protect the rights and articles affected by the agreement.Doctrinal rationale: A promise may be lacking, and yet the whole writing may be “instinct with an obligation” imperfectly expressed. If that is so, there is a contract. The acceptance of exclusive agency was an assumption of its duties. Without an implied promise the transaction cannot have such business efficacy as both parties must have intended that at all events it should have. In determining the intention of the parties, the promise has value. P’s promise to pay D 1/2 of the profits and revenues resulting from the exclusive agency and to render accounts monthly, was a promise to use reasonable efforts to bring profits and revenues into existence. Policy rationale: Preservation of parties intention to form a binding contract.

Class Notes- Failure to include the “best efforts clause” in the Lucy contract show that Wood probably did not intend to make K binding --> Nothing explicit in K to say what Wood’s obligations to Lucy are.

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- Why should Wood be protected from not putting any obligations in the K that he had to do anything in the K he drafted.

- implication of consideration even though there is nothing in the contract itself. - nothing in the contract that says the D will use his best efforts to bring in contracts- Stotz compared the agent in this case to a jobber [like the jobber in schlegel(?)]- does not construe the contract against the drafting party- makes no notice of the word “agreement”- Cardozo looks at the contract in common sense way- doesn’t apply in fact, but in law according to how people in the commercial community

behave. - Close to Wakeman v. Wheeler; they find a binding contract even thought there are

several indefinite terms. - Moving away from United Press [freezing United Press, but do not overturn it]- Vote in this case 4:3, Cardozo in Maj.

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Case name & citation: Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory (I)Statement of the case: An action brought by a jobber/buyer against a manufacturer/seller to recover damages for the manufacturer’s breach of contract.Procedure: Trial court entered judgment for P and awarded damages. D appealsStatement of facts: D and P entered into a K whereby P would purchase glue from D at a fixed price of 9c. per lb, and deliveries would be made to P per P’s orders during the year. D drafted the contract and P signed it. This agreement was accepted in writing by P and concededly constitutes a contract between them. The average for January to September was a little less than 5,000 lbs. In October through December, P ordered an aggregate of 126,100 pounds. Between October 30th and December 26th, P ordered the delivery pursuant to the contract of 79,891 lbs of glue which P needed to meet its requirements and the D did not deliver the same. P in anticipation of the performance of the contract had sold 42,000 lbs of this glue and as it could no longer be bought on the open market it lost its profits on such sales. The other damage sustained by P pursuant to D’s breach brought P’s damages up to a total of $6,431.28. P was a jobber exclusively, handling glues, shellacs paints and chemicals. It bought only for retailing to the trade and did not manufacture or use any of these articles in its own business. P dealt in none of the glue from its own stock but filled the orders of its customers as it received them by calling upon D to deliver goods under the K. P’s “requirements” of special BB glue for the year 1916 were the amounts of orders received therefor from its customers to whom its salesmen had sold such goods. This method of doing business, and the meaning of the term “requirements” as used in the K, were concededly well known to D, which had therefore done business under the same system with P, to which it had sold goods as far back as 1910. No question arose between the parties as to the meaning of the K during the year 1915 and P’s requirements, evidenced by orders from its customers were filled without question during that year. Nor did any question arise as to the meaning or validity of the K for the year 1916, until the price for this special glue rose so high that the K became very valuable to P and entailed a corresponding loss of profit to D which it could have made by selling goods elsewhere. P took advantage of the fixed price and D subsequently did not perform K. D never repudiated K or disavow the same, or object to, or question, the good faith of the orders. P repeatedly demanded performance of the K and D’s representative continued to promise to ship glue to cover the requisitions and said that glue was on the way. Instead of repudiating the the K, D tried to place an arbitrary limitation on it by saying that it would give P 10% more than it had purchased during 1915 (about 40,000 lbs). D never notified P to cease taking orders from its customers for delivery of this glue or notify P that it would not live up to its K for the existing orders. Issues: Was the trial court correct in rendering judgment for the plaintiff and awarding damages, holding that the K was mutual and enforceable and that D had no right to limit the amount which P should receive under the K? Result on appeal: AffirmedHolding: Yes, the trial court was correct in rendering judgment for the plaintiff and awarding damages, holding that the K was mutual and enforceable and that D had no right to limit the amount which P should receive under the K.Doctrinal rationale: A rising mkt could have been guarded against by D by inserting in the K a clause fixing the maximum amt. which P might be entitled to receive thereunder; but instead D made an absolute K at a fixed price for the entire year to deliver as much glue as P might be able to sell to customers during that period.

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Both parties acted with full knowledge of their respective methods of doing business and of the uncertain and fluctuating demand for glue which might come from P’s customers and which must naturally to some extent be dependent upon the mkt price. They entered upon this K with their eyes open to all the conditions existing, or which might possibly arise, and with the intention of being mutually bound thereby.

The mere uncertainty as to the amount which might be required to be furnished under the K is no reason why it was a mutual one nor does it make the contract unenforceablePolicy rationale: Additional Points: (Dissent) The alleged agreement upon which the cause of action was predicated lacked mutuality of obligation, and if the construction put upon the K by the majority of the court be accepted the K was too indefinite and uncertain to constitute a valid and binding K between the parties to this action.

Class Notes- P didn’t bind himself to anything explicitly in the K. However, D was the one that drafted

the K- If D had considered the idea that the mkt price would increase he might have protected

himself in K. - Why should the court step in and protect parties that could protect themselves- Arguments

- Lack of mutuality- “requirements” is too indefinite.

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Case name & citation: Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory (II)Statement of the case: The distributor brought this action against the manufacturer to recover damages for breach of contract, alleging the neglect of and refusal of D to make certain deliveries, and demanding judgment for the damages sustained.Procedure: D’s answer put in the same material allegations as the complaint. At the trial a jury was waived, and the trial proceeded before the trial justice. The judge entered judgment for P and awarded P a substantial amount. D appealed. The Appellate Division affirmed the trial court’s judgment. Two of the justices dissented. D appeals. Statement of facts: The parties entered into a written agreement by which D agreed to sell and deliver to P and P agreed to purchase fron the D all its “requirements” of special BB glue for the year 1916, at the price of 9c per lb. At the bottom of the letter setting forth the terms and obligations of the agreement, P’s president wrote “Accepted,” and returned it to D. P was not involved in manufacturing at the time. It was simply a jobber, selling glue to customers. Issues: Did the trial court err in entering judgment for the P, holding that the alleged K did not lack mutuality and was therefore valid given that the contract lacked consideration and that P was not bound to do anything more than to pay nine cents a pound for the glue it might order?Result on appeal: Reversed.Holding: Yes, the trial court erred in entering judgment for the P, holding that the alleged K did not lack mutuality and was therefore valid given that the contract lacked consideration, that P was not bound to do anything more than to pay nine cents a pound for the glue it might order.Doctrinal rationale: Mutual promises or obligations of parties to contract, either express or necessarily implied, may furnish requisite consideration. Unless both parties to a contract are bound, so that either can sue the other for breach, neither is bound. (Application)The lack of consideration does not bind P to order from D or not to order from D’s competitors, so D is not bound to furnish P’s orders. Policy rationale: Additional Points: (Dicta) There are certain contracts in which mutual promises are implied. In cases of this character, while the Q of the article contracted to be sold is indefinite, nevertheless there is a certain std. mentioned in the agreement by which such Q can be determined by an approximately accurate forecast. (Application) In the K under consideration there is no std mentioned by which the Q to be furnished can be determined with any approximate degree of accuracy.

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Case name & citation: United States Rubber Co, v, SilversteinStatement of the case: P sued D for a breach of contract to recover damages for default of payment, alleging that the contract guaranteed to cover P’s claim against D’s son. Procedure: The trial court found that the contract was ambiguous and left its meaning to the jury. The Appellate division reversed, and dismissed the complaint. P appeals.Statement of facts: D is a merchant. His 2 sons, Louis and Moses, are also merchants. Louis began business in April 1914. Moses began business in July. P’s salesman visited D in May of the same year and D stated that he would be good for any sales P might make to Louis. Moses was not included in the promise since he wasn’t in business yet. P made sales to Louis, charging them to D and made sales to Moses, charging them directly to Moses. In October, D wrote a letter telling P to send Louis his own bills but also stating, “...They do business themself, and therefore send them separate statements, but I am good for what they buy.” P interpreted this letter to be a guaranty of sales to Moses and gave credit on that basis. Default in payment followed.Issues: Did the appellate court err in reversing the trial court’s decision to allow the jury to determine the contract’s meaning and dismissing P’s complaint, given the ambiguous use of the pronoun “they” and the several possible meanings that could be given it?Result on appeal: Reversed.Holding: Yes, the appellate court erred in reversing the trial court’s decision to allow the jury to determine the contract’s meaning and dismissing P’s complaint, given the ambiguous use of the pronoun “they” and the several possible meanings that could be given it. Doctrinal rationale: The promise, if uncertain, was to be taken in the sense in which the promisor had reason to suppose it was understood by the promisee. The jury were to fix the meaning in light of all the circumstances. We cannot say that the meaning chosen is without basis in the evidence.Policy rationale:

Class Notes- Cardozo implies that he doesn’t believe that “they” meant what it was said to mean- Different than United Press, treats the dispute as a question of fact for the jury rather

than a question of law.

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Case Name: Heyman Cohen & Sons, Inc. v. M. Lurie Woolen Co.SoC: Buyer sued seller to recover damages for a breach of contract under which P was given the privilege to confirm more of the good for sale if D could get more, alleging that upon exercise of this privilege, D withheld 500 pcs.Procedure Below: D moved for judgment on the pleadings. Trial court denied D’s motion. D appealed. Appellate Division reversed the trail court’s decision and granted D’s motion fro judgment on the pleadings. P appeals.Facts: P and D entered into a contract whereby P agreed to buy and D agreed to sell 200 pcs of tricotine at $3.02½ per yard and P was given the privilege to confirm more of the good if D could get more. The 200 pcs were delivered and paid for. P exercising its option demanded as much more as D could get. D confirmed the exercise of the option, but only delivered 16 additional pcs, saying that it couldn’t get anymore, when in fact it had gotten 500 pcs which it withheld. Issue: Did the Appellate court err in granting D’s motion for judgment on the pleadings for a lack of consideration for the concession of an option?RoA: Reversed.Holding: Yes, the Appellate court erred in granting D’s motion for judgment on the pleadings for a lack of consideration for the concession of an option. Doctrinal Reasoning: There was no lack of consideration for the concession of an option. The privilege to order more is coupled with the promise and obligation to accept a stated minimum. D is bound unless its promise is to be ignored as meaningless. Indefiniteness must reach the point where construction becomes futile.Policy Reasoning: The defendant was conducting business in bad faith and more importantly the idea is to preserve the intention of the parties to form a binding contract, by applying law in a way that best fits the way the business world actually operates. Additional Points: (Dicta) Cardozo limits the decision in Schlegel by narrowing its scope and distinguishing it from the instant case.

Class NotesBuries United Press NOTE: Policy driven case- There is nothing in the facts of the case that say who drafted the the contract- Finding out how things work in facts and apply it in legality- Close to Wakeman v. Wheeler: No definite terms, but the court still found a contract.

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Case Name: St. Regis Paper Co. v. Hubbs & Hastings Paper Co.SoC: Seller of paper sues buyer for a printing company for a breach of contract to recover damages for the unpaid balance on the sale of paper. Facts: D and P entered into a contract whereby D agreed to buy and P to sell 4,500 tos of paper a year for two years from January 1, 1919. the price for the first three months was to be $3.77 per hundred pounds, “price for the balance of the year to be fixed by mutual consent. In the event that the parties to this agreement shall fail to arrange a price for any quarter before the expiration of the preceding 3 months, this contract, in so far as it pertains to delivery over the unexpired period shall terminate. D entered into a similar contract as a seller to sell to a publisher for the price of $4.10 per hundred pounds. In the last quarter of 1919 P refused to agree with D on a price for the first quarter of 1920, and finally quoted a price so high that publishers could not agree on it with D. In so doing P acted arbitrarily for the purposes of terminating the contract, depriving D of its prospective profits on the transaction and placing the business in the hands of others.Procedure: D counterclaimed to recover damages for the commissions to which it would have been entitled, alleging that P after selling D paper for some time, repudiated its agreement, delivered no more paper and refused to pay D said commissions. The trial court submitted to the jury the question of whether P acted in good faith in trying to fix the price of paper. The jury returned a verdict for D. The trial court set aside the jury verdict in favor of P. D appealed. The appellate court reversed the trial courts ruling, granted a new trial, and directed reinstatement of said verdict. Issue: Did the appellate court err in reversing the trial court’s decision and holding that the contract implied good faith and required the exercise for an honest attempt to agree on the price of future deliveries; that the case was properly submitted to the jury and the verdict of the jury should be reinstated?RoA: Reversed.Holding: Yes, the appellate court erred in reversing the trial court’s decision and holding that the contract implied good faith and required the exercise for an honest attempt to agree on the price of future deliveries; that the case was properly submitted to the jury and the verdict of the jury should be reinstated. Plaintiff exercised its legal right in refusing to be bound by the contract. Defendant’s counterclaim should have been dismissedDoctrinal Reasoning: Good faith does not require the contracting parties to do more than they are expressly or impliedly bound by their contract to do. When a legal act is reduced into a single memorial, all other utterances of the parties on the topic are legally immaterial for the purposes of determining what are the terms of their act. (Application) The terms of the contract are so indefinite as to have no legal significances; they amount to nothing more than an agreement to make a future agreement; an agreement to agree is not enforceable.Policy Reasoning: Protecting freedom to contractAdditional Points: (Dicta) When dealers advertise themselves as agents or exclusive agents for certain manufactured articles, it does not follow that they are selling on a commission for the manufacturer.

Class Notes- Is D a buyer or a broker (the jury found that D was a broker)- There are ambiguities (“agent” and “commission”) and collateral correspondence (the

court ignores this).

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- The contract is not binding because it is an agreement to agree (indefinite after 3 months) (NOTE: Varney, United Press)

- Why did the court go through the analysis of the contract itself if it was not binding (ie: agent, and commissions terms and the termination clause?

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Case name & citation: Sun Printing Pub. Ass’n v. Remington Paper & Power Co.Statement of the case: This is an action by a buyer against a sell to recover damages resulting from a breach of contract to sell paper.Procedure: The defendant demurred. The trial court denied the defendant’s judgment on the pleading. The defendant appeals. Statement of facts: P agreed to buy and D agreed to sell 1,000 tons of paper per month to P from September 1919 to December 1920. The price for the shipments in september 1919 was to be $3.73 3/4 per 100 pounds and for the shipments in October, November and December 1919 was $4 per 100 pounds. For the balance of the period of this agreement the price of the paper and the length of terms for which the price would apply would be agreed upon by the parties 15 days before the expiration of each period for which the price and the length of term was previously agreed upon. Said price was to be no higher than the contract price for newsprint charged by the Canadian Export Paper Company to the large consumers. Before the time came when the parties were to agree on a new price and the terms of its duration, D gave notice that the contract was imperfect, disclaimed for the future obligation to deliver. P took the ground that the price was to be ascertained by resort to an established standard. P made demand that during each month of 1920 D deliver 1,000 tons of paper at the contract price for newsprint charged by the Canadian Export Paper Company to the large consumers. The demand was renewed every month till the expiration of the year.Issues: Was the defendant bound by the contract given that the it was incomplete in respect of price and term of price (time)? Did case sufficiently state a cause of action?Result on appeal: ReversedHolding: No, the defendant was not bound by the contract given that the it was incomplete in respect of price and term of price (time). Case did not sufficiently state a cause of action. Doctrinal rationale: Leaving the price term unfilled rendered the contract “an agreement to agree.” D exercised its legal right when it insisted that there was need of something more. The writing signed by the parties calls for an agreement as to time. The complaint concedes that no such agreement has been made. The result is the failure of the contract. An agreement to agree is not binding or an enforceable contract. Policy rationale: Lawyers have a duty to offer more facts to the court so that the court can make a judgment on the ambiguities, but in this case the lawyers didn’t do their jobs. Additional Points: (Dissent) There is reason to believe that the parties supposed they were making a binding contract; that they fixed the terms by which one was required to take and the other to deliver; that the Canadian Export Paper Company price was to be the highest that could be charged in any event. These things being so, the court should be very reluctant to permit a defendant to avoid its contract.

Class Notes- The dissent in this case uses all cases in which Cardozo wrote an opinion to contradict

Cardozo’s opinion this case. (Wakeman, Wood v. Duff Gordon, Moran, U.S. Rubber v. Silverstein)

- Did not impose good faith obligation because the lawyers didn’t lead what the Canadian Export Price was meant to be.

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Part III: The Concept at Work (Warranty)Case Chart (CC)..................................................................................................................71

Case Briefs...............................................................................................................................People v. Clair.......................................................................................................................77Race v. Krum.........................................................................................................................78Rinaldi v. Mohican Co..........................................................................................................79Canavan v. City of Mechanicville (1)...................................................................................80Canavan v. City of Mechanicville (2)...................................................................................81Horton v. Town of North Attleborough.................................................................................83Stubbs v. City of Rochester ..................................................................................................85Geddling v. Marsh................................................................................................................86Hoisting Engine Sales Co. v. Hart ......................................................................................88Chysky v. Drake Bros. Co. ..................................................................................................89Temple v. Keeler...................................................................................................................90J. Aron & Co. v. Sills ..........................................................................................................91Redmond v. Borden’s Farm Products Co. ..........................................................................91Vaccaro v. Prudential Condensed Milk Co.........................................................................92Ryan v, Progressive Grocery Stores, Inc. ...........................................................................92Gimenez v. Great Atlantic & Pacific Tea Co. ....................................................................93McSpedon v. Kunz..............................................................................................................94

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Blessington v. McCrory Stores Corp. ................................................................................95Bowman v. Great Atlantic & Pacific Tea Co. ....................................................................96Mouren v. Great Atlantic & Pacific Tea Co. .....................................................................96Greenberg v. Lorenz...........................................................................................................97

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Case Name & SoC Holding/Rule Significance on the Law

People v. Clair

SoC: The state brought suit against the proprietor of the hotel to recover penalties for the sale of game in violation of Section 180 of the Conservation Law.

FACTS: The proprietor served only partridge given to him to his guests who paid a fixed rate for room and board at his hotel in the dining room.

If in a hotel where meals are served a la carte a partridge is ordered prepared and served as food and paid for as such it would constitute a sale within the meaning of the statute. The facts of this case show that the partridges were sold as a matter of law and within the prohibition of the statue.

Defines who the seller is, what a sale is, and when the seller should be held strictly liable.

Race v. Krun

A patron sued the drug store manager to recover damages for personal injuries from the consumption of poisonous ice cream sold by the manager, alleging (1)that the manager was negligent in selling the cream and that (2)the manager warranted the cream to be fit for human consumption.

Accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption.

Key fact: drug store owner made and prepared food himself therefore there is an implied warranty for fitness for human consumption (ie: the dealer must be the preparer of the food).

Warranty of fitness implied

Food must be for immediate use

Rinaldi v. Mohican Co.

A buyer brought an action against the a market owner to recover damages resulting from the consumption of infested meat on the theory of implied warranty.

No implied warranty unless the buyer expressly or by implication makes known to seller purpose of the purchase and unless the buyer relies on the seller’s skill or judgment.

If buyer has examined goods and should have the defect, there is no warranty. Mere purchase of article ordinarily used for human consumption does by implication make known to seller purpose for which the article is required.

Warranty of fitness implied

Difference between common law and statute is you have to make known the to seller purpose for which good is used and by implication rely on the seller’s judgment.

Personal property law: Broader because no it no longer applies to food only, but narrower because buyer has the burden to prove seller had opportunity to inspect.

Canavan v. City of Mechanicville (1&2)

Household sues city to recover damages for getting typhoid fever from contaminated water provided by the city, alleging that the city broke its implied warranty on the water to the damage of the household.

(1) There is no sale of goods(2) There is a sale of goods, but it

does not fall under the statuteTaking water from the pipes does not make known to the seller the purpose for which the water is to be used because it is used for several purposes.

No warranty of fitness implied

Ct. implies that seller must have an effective opportunity to inspect goods.

This case is different from Rinaldi in that pork is only used for consumption and water is not.

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Case Name & SoC Holding/Rule Significance on the Law

Horton v. Town of North Attleborough

The buyer brought this action of contract or tort against the seller to recover damages for breach of implied warranty and negligence.

The sales act does not apply to the furnishing of water supply through pipes (Canavan)

If there is a warranty under the circumstances of this case, it is a warranty that when water becomes the property of the plaintiff it will be reasonably fit to be conducted through one hundred forty-five feet of lead pipe into the house and then to be drunk.

Warranty of fitness implied

Case is similar to Canavan, but reaches a completely different conclusion.

Stubbs v. City of Rochester

Consumer brought this negligence action against supplier to recover damages sustained by the plaintiff due to drinking contaminated water from the supplier’s domestic service.

When there are several possible causes of an injury for one or more of which the defendant is not responsible, the plaintiff cannot recover without proving that the injury sustained was wholly or in part a cause for which defendant was responsible; however, when a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable, that party had complied with the “spirit” of the rule.

Necessary evidence to prove unfitness in negligence action.

Geddling v. Marsh

A retailer sued a manufacturer to recover damages for persona injuries caused by the bursting of a bottle of lime juice and soda supplied to her by the manufacturer.

Where goods are a prong of the original contract for sale rather than an extra contract for bailment there is an implied warranty for the goods sold themselves and also to goods supplied under the same contract.

Warranty implied

Implied warranty extends to goods supplied as well as sold under K for sale.

Hoisting Engine Sales Co. v. Hart

The lessor of defective equipment sued the lessee of said equipment to recover the rental reserved in the lease.

There is an implied warranty in the hiring of property or bailment of certain kinds of property. The owner of a chattel which he lets out for hire is under the obligation to ascertain that the chattel so let out by him is reasonably fit for the purpose for which it is expressly let out or for which, from its character, he must be aware it is intended to be used: his delivery of it to the hirer amounts to an implied warranty that the chattel is in fact as fit and suitable for that purpose as reasonable care and skill can make it.

Warranty implied

Implied warranty extended to not only the sale of goods, but also the lease of goods.

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Case Name & SoC Holding/Rule Significance on the Law

Chysky v. Drake Bros. Co.

A waitress brought this action against a cake manufacturer to recover damages for injuries sustained when she ate a piece of cake with a nail baked into it that her employer had bought from said cake manufacturer, upon a theory of implied warranty that cake was fit for human consumption.

A manufacturer or seller of food or other articles of personal property, is not liable to 3rd person, under implied warranty, who have no contractual relations with him, because privity of contract does not exist between the seller and such 3rd persons, and unless there be privity of contract, there can be no implied warranty.

No warranty implied.

Implied warranty limited to contracting party (buyer); there must be privity of contract for there to be an implied warranty

Temple v. Keeler

A restaurant patron brings this action against a restaurant owner to recover for loss and damage alleged to have been caused by sickness resulting from the consumptions of fish in the owner’s restaurant which was unwholesome and unfit for human food, whereby the patron became ill from ptomaine poisoning.

Where a customer enters a restaurant, receives, eats and pays for food, delivered to him on his order there is an implied warranty that the food is reasonably fit for human consumption.

The owner of a restaurant sells the food which he provides for his guests. The facts in this case are very similar to those in Race v. Krum where it was found that there was an implied warranty.

Apart from Race v. Krum the court would still be compelled to reach the same decision based on the decision in People v. Clair for what constituted a sale of goods

Implied warranty extended to food served by restaurant owners.

J. Aron & Co. v. Sills

A buyer brought this action against a retailer to to recover for breaches of warranties in connection with the sale of canned condensed milk that became fermented, unfit for human consumption and commercially useless.

Where good is not fit for human consumption and the seller knows the purpose for which the good are required it does not comply with implied warranty of merchantability.

Implied warranty of fitness = implied warranty of merchantability

Redmond v. Borden’s Farm Products Co.

An infant brought this action against the manufacturer to recover for personal injuries alleged to have been sustained as a result of the manufacturer’s negligence, alleging that the infant was injured by broken glass contained in a bottle of milk that passed into her mouth while she was drinking the milk.

Person cannot recover where there is no privity of contract.

No privity = no implied warranty

Privity does not extend to infants whose mothers purchase milk for them.

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Case Name & SoC Holding/Rule Significance on the Law

Vaccaro v. Prudential Condensed Milk Co.

A married woman brought this breach of implied warranty action against the manufacturer of milk to recover damages alleged to have been sustained by her by reason of having partaken of milk that was in an unwholesome condition.

In the absence of any evidence to the contrary, there is the presumption that the moral and legal obligation on the part of the husband to support his wife and family is being carried out. Implied warranty does not extend to the wife because was acting as an agent for her husband; thus there was no privity of K between her and the manufacturer.

No implied warranty

There is no privity of K for a wife who is acting as the agent of her husband.

Ryan v, Progressive Grocery Stores, Inc.

A husband brought this action for breach of warranty against the grocer to recover damages for injuries sustained when he, through his wife, who acted as his agent bought a loaf of bread from said grocer that had a pin concealed in it which hurt his mouth.

There are times when a warranty of fitness has no relation to a warranty of merchantability and times when they coexist and recovery may be founded on either

Loaves baked with pins in them are not of merchantable quality. Relies in the precedent set in J. Aron & Co. v. Sills.

Damages for breach of of warranty of merchantable quality is more than the price of good where the dealer had notice from the nature of the transaction that the bread was to be eaten

Where there is dual warranty, recovery may be based on either theory

Narrowed warranty because buyer must rely on seller’s judgment.

Gimenez v. Great Atlantic & Pacific Tea Co.

Wife brought an action for breach of warranty and negligence and husband brought a breach of implied warranty action for loss of consortium and medical expenses against the retailer for injuries sustained by the wife from ingesting crab meat, bought from the retailer that contained a deleterious substance.

A husband not recover under breach of implied warranty where the wife is the purchaser because he lacks privity.

Breach of implied warranty for wife. No Breach of implied warranty for husband.

Wife is no longer an agent, but a purchaser with a contractual relationship, and husband does not have privity. (Change in the treatment of women)

McSpedon v. Kunz

The buyer brought this breach of implied warranty action against the retail seller, the distributor, and the manufacturer to recover damages for injuries alleged to have been sustained by the buyer through sickness contracted by her from eating pork infested with trichinae.

Policy driven case.

The sale of pork that passes government inspection, but is not fit for human consumption constitutes a breach of implied warranty where there are means available to make the meat safer for the consumer.

Rinaldi: On every such sale of food by the dealer for immediate human consumption there is an implied warranty of its wholesomeness.

Consumer’s know nothing about the danger lurking in meats or the requisite heating point to destroy parasites, and must rely on the grocer, the butcher and the slaughterer to sell them wholesome food.

Product is merchantable if it may be wholesome if used as intended by manufacturer.

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Case Name & SoC Holding/Rule Significance on the Law

Blessington v. McCrory Stores Corp.

Father sues department store on behalf of his infant son for breach of implied warranty of fitness for use to recover for the injuries and pain and suffering of his son sustained from burns he suffered when a cowboy suit he was wearing that his mother bought from the defendant department store came into contact with a flame and ignited.

Policy driven case.

Although a breach of a duty may rest upon, or be associated with, a tortious act, it is independent of negligence, and so such a cause of action gets the benefit of the 6 year limit as being on an implied contract obligation or liability.

While an action for breach of implied warranty of fitness may involve, incidentally, some showing of negligence, the contract breached is not merely one to use due care, but it is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought. Proof of negligence is unnecessary for recovery in such a suit.

There may be a breach of implied warranty.

NOTE: wife was the purchaser, and husband bought suit on behalf of the infant

Neither husband, nor infant had privity, but court did not agree that the action should have been bought in negligence.

The court did not dismiss the claim for lack of privity.

Bowman v. Great Atlantic & Pacific Tea Co.

Victim, who shared expenses with the buyer for food, brought a breach of implied warranty action against the grocer to recover damages for injuries sustained when she used oil, bought by the buyer from the grocer, that contained a dead mouse, alleging that because the she and the buyer shared expenses, the buyer was acting as her agent when she purchased the oil and therefore there was privity between the victim and the grocer to sustain a cause of action for breach of implied warranty.

Where the contract is negotiated by another as agent of plaintiff, its warranties may be enforced by plaintiff.

There may be an implied warranty

Moves away from privity requirement

Agency theory is not confined to husbands and wives.

Mouren v. Great Atlantic & Pacific Tea Co.

Action bought by husband and wife against the retailer to recover damages for breach of warranty and for negligence, alleging that the residue from grinding of pork had been allowed to mix with the beef they had purchased, and that was the source of their illness.

A prima facie case has been established for a breach of implied warranty, and as a matter of law, the plaintiff wife may recover for said breach.

An individual may act as both principle and agent; in this case, it was the husband.

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Case Name & SoC Holding/Rule Significance on the Law

Greenberg v. Lorenz

The infant plaintiff and her farther sue a retail food dealer for damages for breach of alleged warranties of fitness and wholesomeness for injuries sustained when she ingested salmon from a can bought from the retailer that contained some pieces of sharp metal.

It is not just or sensible to confine the warranty’s protection to the individual buyer. At least as to household food and goods, the presumption should be that the purchase was made for all members of the household.

Protecting the consumer: Members of household, particularly children cannot protect themselves.

Extends the implied merchantability to the household family

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Case name & citation: People v. ClairStatement of the case: The state brought suit against the proprietor of the hotel to recover penalties for the sale of game in violation of Section 180 of the Conservation Law. Procedure: Defendant moved to dismiss. Trial court entered judgment in favor of the defendant and dismissing the complaint. The P appeals. The appellate court affirmed. The P appeals.Statement of facts: A confidential agent of the conservation commission of the state of New York and a game protector employed by the commission stayed at D’s hotel. D did not know that these men were employed by the conservation commission. After lunch, the D brought two dead partridges from the kitchen and said to one of the guests that the partridges had been given to him and that he was going to serve them at Dinner that night and did so. The next morning the employees of the commission departed paying $15.50 each for their board and room. Section 180 of the Conservation law provides “The dead bodies of birds belonging to all species or sub-species, native to the state, protected by law, or belonging to any family, any species or subspecies of which is native to this state and protected by law shall not be sold, offered for sale, or possessed for sale for food purposes within this state whether taken within or without this state...” Partridges are native to this state.Issues: Did the appellate court err in affirming the trial court’s judgment in favor of the defendant thereby holding that the serving of partridges by the defendant as a part of the meal furnished by him and paid for by his guests as stated did not constitute a sale of said partridges for food purposes?Result on appeal: Reversed.Holding: Yes, the appellate court erred in affirming the trial court’s judgment in favor of the defendant thereby holding that the serving of partridges by the defendant as a part of the meal furnished by him and paid for by his guests as stated did not constitute a sale of said partridges for food purposes. Doctrinal rationale: If in a hotel where meals are served a la carte a partridge is ordered prepared and served as food and paid for as such it would constitute a sale within the meaning of the statute. The facts of this case show that the partridges were sold as a matter of law and within the prohibition of the statue. Policy rationale: Preserve birds (Preserve the natural resources of the state)Additional Points: (Dicta) Persons who have game in their rightful possession within the terms of the statue may in good faith give the same away or serve the same to an invited guest. It is possible that if the game is served independently of the regular meal by a hotel or boarding house keeper, that the question whether the same as so served, is a gift or a sale may be one of fact.

Class NotesRelation to Warranty- Defines what is a sale - Defines who is a seller- Says when seller should be strictly liable?

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Case name & citation: Race v. KrumStatement of the case: A patron sued the drug store manager to recover damages for personal injuries from the consumption of poisonous ice cream sold by the manager, alleging (1)that the manager was negligent in selling the cream and that (2)the manager warranted the cream to be fit for human consumption. Procedure: The answer put in issue the material allegations of each cause of action. At conclusion of the evidence, plaintiff elected to go to the jury on only on the second cause of action and the case was submitted to it on that theory. The jury rendered a verdict in favor of the P. The trial court entered the jury’s verdict in favor of the P. D appeals. The appellate court affirmed. D appeals.Statement of facts: The manager conducted a drug store that also served ice cream. The patron with 2 companions entered the manager’s store and asked to be served with ice cream, which was done, the 2 companions being served from one can and the patron from another. The patron complained about the quality of the ice cream and only ate part of it. The clerk who waited on him examined the cream and said that there was something wrong with it. A short time after that, the patron violently ill and was ill for several days. Issues: Was the trial court correct in instructing the jury that when defendant sold the cream to plaintiff he impliedly warranted it was fit for human consumption?Result on appeal: Affirmed. Holding: Yes, the trial court was correct in instructing the jury that when defendant sold the cream to plaintiff he impliedly warranted it was fit for human consumption.Doctrinal rationale: Accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption.Policy rationale: The rule is based on the high regard which the law has for human life. Public policy as well as the public health demand such obligation should be imposed.

Class NotesKey fact: drug store owner made and prepared food himself therefore there is an implied warranty for fitness for human consumption (ie: the dealer must be the preparer of the food)

Excludes hotel proprietors

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Case name & citation: Rinaldi v. Mohican Co.Statement of the case: A buyer brought an action against the a market owner to recover damages resulting from the consumption of infested meat on the theory of implied warranty.Procedure: The court submitted to the jury the question as to whether the plaintiff could have found such a defect if she had used reasonable care. The jury found for the plaintiff and the judgment was then affirmed in the Appellate division. Statement of facts: On December 16th, 1915, the P bought a loin of pork at a market owned by the D. The meat was infected with trichianae. She cooked and ate it and was made ill. The P found no defect in the meat. Issues: Result on appeal: AffirmedHolding: Doctrinal rationale: There is no implied warranty of fitness unless the buyer expressly or by implication acquaints the seller with the purpose of the purchase and unless it appears that the buyer relies on the seller’s skill or judgment. Even then if buyer has examined goods and should have the defect, there is no warranty. The mere purchase by a customer from a retail dealer in foods of an article ordinarily used for human consumption does by implication make known to the vendor the purpose for which the article is required. Such a transaction standing by itself permits no contrary inferences. If it does not appear that the buyer has examined the goods or having examined the goods or, having examined them, has failed to discover defects which he should have found precisely such an implied warranty exists as the court said existed in all cases whenever a dealer sold food.Policy rationale:

Class Notes:Additional Fact: Pork bore the U.S. Stamp of approval.

Buyer must show that the seller had an opportunity to inspect

Difference between common law and statute is you have to make known the to seller purpose for which good is used and by implication rely on the seller’s judgment.

Personal property law: Broader because no it no longer applies to food only, but narrower because buyer has the burden to prove seller had opportunity to inspect.

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Case Name: Canavan v. City of Mechanicville ISoC: Household sues city to recover damages for getting typhoid fever from contaminated water provided by the city, alleging that the city broke its implied warranty on the water to the damage of the household. PB: The complaint contained 2 causes of action. The defendant demurred to the second cause of action for implied warranty. The trial court entered an order overruling the defendant’s demurrer. The defendant appeals.Facts: The plaintiff was a household in the defendant city. The city maintained a system of water supply for its inhabitants for drinking and domestic uses for a compensation. The water furnished became contaminated with germs of typhoid fever. The plaintiff ingested the water and contracted the disease. Issue: Did the trial court err in overruling defendants demurrer, thereby holding that a city which for a compensation supplies water through a water pipe to a building there to be used by the inhabitant, impliedly warrants that water to be wholesome and fit for human consumption?RoA: Reversed.Holding: Yes, the trial court erred in overruling defendants demurrer, thereby holding that a city which for a compensation supplies water through a water pipe to a building there to be used by the inhabitant, impliedly warrants that water to be wholesome and fit for human consumption. Doc. R.: OwnershipAn implied warranty of personal property is a collateral contract attending a sale thereof, so that, unless there be a sale with the ordinary circumstances of transfer of title and possession of the thing sold, for a price given for that particular thing, the peculiar facts out of which a warranty is implied do not exist, and there is no warranty.No absolute warranty can be acquired in flowing water because it had none of the attributes commonly ascribed to property and it is not the subject of exclusive dominion or control.Therefore the water was not the subject of barter and sale between parties.Taxation: There was no element of profit involved, only an assessment/taxation of the cost to furnish to discharge a private duty of the members of the city. Therefore there was no sale of water to this plaintiff. Personal Property Law: (Assuming that the water was sold to the plaintiff)There is an implied warranty accompanying sale only if it were a case where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, and it appears that the seller relies on seller’s skill or judgment. Limitation: The buyer must assume that the seller has had the opportunity to examine the article sold to rely on the seller’s skill and judgment. (Cites Rinaldi)It is common knowledge that water supplied from a reservoir is never in the actual physical custody of the seller.Analyses and inspection of every drop of water collected in ponds is beyond the power of the seller.Therefore a buyer cannot assume that the seller has the opportunity to examine the water sold so that invariably contamination and disease can be avoided. Pol. R.: The court does not want to hold city liable for discharging a private duty. Rather it wants to encourage the city to take on such duties, which it has become difficult for members of the city to do themselves. Imposing liability on the state would deter the city from discharging such private duties; therefore the court does not hold the city liable.

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Add. Pnt.: (Concurrence) The city was not the manufacturer of the article “sold.” Where the vender is not the manufacturer and the purchaser knows this fact, in the absence of proof of an express warranty or of fraud or deceit upon the part of the seller, he is not responsible for latent defects. A dealer does not impliedly warrant against latent defects, except where the sale of the article by him is in and of itself legally equivalent to a positive affirmation that the article has certain inherent qualities inconsistent with the claimed defects. Unless the vendor is the producer or manufacturer of the articles, there is no implied warranty against latent defects even if the vendor knows the purposes for which the goods are bought.

(Dissent) There was a sale. In the character of personal property, water, separated from its source or from the body of which it constituted a part, may be bought and sold like other commodities, as when it is supplied through artificial conduits for domestic use, or irrigation, or when it is supplied through artificial conduits for domestic use, or irrigation, o or when solidified in the form of ice; but the flowing water of a stream is not susceptible of absolute ownership and admits only a transient usufructuary property.

Case Name: Canavan v. City of Mechanicville IIPB: Appellate court reversed the trial court’s order overruling the defendant’s demurrer.Issue: (1) Did the appellate court err in holding that the furnishing water through a water pipe to a

building there to be used by the inhabitant for compensation is not a sale of goods?(2) Was the appellate court correct in holding that a city which for a compensation supplies

water through a water pipe to a building there to be used by the inhabitant, does not impliedly warrant that water to be wholesome and fit for human consumption?

RoA: Affirmed. Holding:(1) Yes the appellate court erred in holding that the furnishing water through a water pipe to

a building there to be used by the inhabitant for compensation is not a sale of goods?(2) Yes, the appellate court was correct in holding that a city which for a compensation

supplies water through a water pipe to a building there to be used by the inhabitant, does not impliedly warrant that water to be wholesome and fit for human consumption?

Doc. R.: The supply of water through pipes for compensation is a sale of goods under the statute; however, the case does not fall under the statute.Sale of Goods: Under the statute, goods include all chattels personal other than things in action and money. The term includes implements, industrial growing crops, and things attached to or forming part of the land under which are agreed to be served before sale or under the contract of sale. The corporation segregates the water supplied from its sources in reservoirs or pipes of its own and delivers it to those who demand and receive it at a fixed price. That the furnishing is without profit is weightless. It is a sale of goods. Particular Purpose and Reliance: A taker of water from pipes of a system of water works of a water corporation or municipality does not by the mere taking make known. Either expressly or by implication, to the seller of the water the particular purpose for which the water is required, and cause it to appear that he relies as to the wholesomeness of the water on the seller’s skill or judgment. Of the water taken the part not used for drinking or human consumption is much greater than that which is taken for consumption. The waters are never actually in the possession

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and care of the seller and is its common knowledge that to some extent risk attends the consumption of water.Pol. R.: The court is seeking to protect the corporations operating water works systems because “[m]en will not form corporations which the court will hold obligated, at a risk which may bankrupt and destroy them, to enter a guaranty or warranty which they cannot fulfill.”Add. Pnt.: (Dissent; Pound) If it is true that the furnishing of water through pipes is a sale of goods, then it is also true that there was an implied warranty of wholesomeness since the buyer does not himself select the article nor rely on his own skill and judgment; he simply takes what is offered by the city.

(Dissent, Elkus) A city selling water is not exercising a public, but a private power. When a city engages in a business, it assumes the same liability as rests upon an individual. The burden of collecting only pure water or of purifying water permitted to flow through pipes for the sanitary and potable uses of the community is upon the corporation controlling the supply.

Class NotesCt. implies that seller must have an effective opportunity to inspect goodsThis case is different from Rinaldi in that pork is only used for consumption and water is not. P could possibly recover under negligence.

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Case Name: Horton v. Town of North AttleboroughSoC: The buyer brought this action of contract or tort against the seller to recover damages for breach of implied warranty and negligence. PB: The complaint contained 2 causes of action. The first cause declares upon a warranty that the water supplied would be fit for drinking after passing through lead pipes used by the buyer. The second cause is for negligence. On the first count for breach of warranty, the judge instructed the jury that the water was sold and delivered by the defendant at the water gate at the property line; that if the water at that point was fit for human consumption the defendant would not be liable though after passing that point it might become unfit; and that if the water was unfit at that point the defendant would be liable on its warranty of fitness only for injury caused to the plaintiff by the lead that was in the water at that point. The plaintiff excepted to each of these propositions. The plaintiff also excepted to the refusal to give jury instructions that the defendant in supply water for domestic uses impliedly warranted that it was fit therefore when consumed through pipes of a kind approved by the defendant’s authorized representative and that when the defendant required that water which it sold for drinking purposes be conducted through pipe of iron, tin or lead, it expressed to the plaintiff its approval of lead pipe. At the trial the jury returned a verdict for the seller on each cause.Facts: Buyer was poisoned by water furnished by seller through lead pipes chosen by the buyer of three options presented by seller. Issue: Did the trial court err in instructing the jury that the water was sold and delivered by the defendant at the water gate at the property line; that if the water at that point was fit for human consumption the defendant would not be liable though after passing that point it might become unfit; and that if the water was unfit at that point the defendant would be liable on its warranty of fitness only for injury caused to the plaintiff by the lead that was in the water at that point?RoA: Reversed.Holding: Yes, the trial court erred in instructing the jury that the water was sold and delivered by the defendant at the water gate at the property line; that if the water at that point was fit for human consumption the defendant would not be liable though after passing that point it might become unfit; and that if the water was unfit at that point the defendant would be liable on its warranty of fitness only for injury caused to the plaintiff by the lead that was in the water at that point.Doc. R.:ApplicabilityThe judge charged in substance in the instructions that the defendant was bound by an implied warranty under the sales actThe sales act does not apply to the furnishing of water supply through pipes (Canavan)Particular PurposeIt may be assumed that the warranty is of fitness at the time when title to the water passed to the plaintiff, and not at any later time; and it may also be assumed that the title passed at the water gate and not at the meter. But those assumptions are not decisive.

The purpose for which the defendant warranted the water to be reasonably fit was not merely drinking. The water was not to be drunk at the water gate, nor at the meter The purpose for which the water was required and for which it was to be reasonably fit included the passage of the water through one hundred forty-five feet of lead pipe, known to and approved by the defendant, before the water could get into the house to be drunk.

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If there is a warranty under the circumstances of this case, it is a warranty that when water becomes the property of the plaintiff it will be reasonably fit to be conducted through one hundred forty-five feet of lead pipe into the house and then to be drunk.

Class Notes:- Compare and contrast with Canavan.

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Case Name: Stubbs v. City of RochesterSoC: Consumer brought this negligence action against supplier to recover damages sustained by the plaintiff due to drinking contaminated water from the supplier’s domestic service. PB: The evidence on the trial discloses that at least 58 witnesses, residents of the district, drank the contaminated water and suffered from typhoid fever in addition to the plaintiff. The plaintiff gave evidence of his habits his home surroundings and his method of living, and the medical testimony indicated that his illness was caused by drinking contaminated water. Defendant moved to dismiss the complaint on the grounds that the plaintiff did not establish that he contracted the disease by drinking contaminated water. The trial court dismissed the complaint in favor of the defendant. Facts: The supplier was a city that maintained 2 systems of water supply with 2 separate sources. One system was suitable for domestic use, and the other for fire purposes. The water of the 2 systems was allowed to commingle by mistake. The consumer drank the water and contracted typhoid fever. Issue: Did the trial court err in dismissing the plaintiff’s complaint because the plaintiff’s evidence fails to disclose that he contracted typhoid fever by drinking contaminated water?RoA: Reversed.Holding: Yes, the trial court erred in dismissing the plaintiff’s complaint because the plaintiff’s evidence fails to disclose that he contracted typhoid fever by drinking contaminated water. Doc. R.: When there are several possible causes of an injury for one or more of which the defendant is not responsible, the plaintiff cannot recover without proving that the injury sustained was wholly or in part a cause for which defendant was responsible; however, when a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable, that party had complied with the “spirit” of the rule.

Class Notes: This is how an injured consumer might prove the water supplier’s negligence caused his injury.

This was the household’s first cause of action in Canavan.

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Case Name: Geddling v. MarshSoC: A retailer sued a manufacturer to recover damages for persona injuries caused by the bursting of a bottle of lime juice and soda supplied to her by the manufacturer. PB: The trial judge entered judgment for the plaintiff and awarded damages, holding that there was an implied warranty under the Sale of Goods Act that the article was reasonably fit for the purpose for which it was required by the plaintiff and that the manufacturer breached said warranty. The defendant appeals.Facts: The retailer, the owner of a small shop, obtained her supplies from a mineral water manufacturer. She was charged three shillings for the minerals and a penny for each bottle, the penny being refunded on the bottle being returned and forfeited if the bottle was broken or not returned. One day while serving a customer, the retailer took the bottle from the counter, carefully handling it, and was about to replace it in the case when it burst in her hands and seriously injured her. She had made known to the manufacturer the purpose for which she required the bottled of mineral water and the bottled of lime juice and soda were of a description which it was in the course of defendant’s business to supply. Issue: Was the trial judge correct in holding that it was immaterial that there was no sale of the bottle for implied warranty under the Sale of Goods Act?RoA: Affirmed.Holding: Yes, the trial judge was correct in holding that it was immaterial that there was no sale of the bottle for implied warranty under the Sale of Goods Act.Doc. R.: The goods in question were good supplied under the contract for sale. The goods were a prong of the original contract for sale rather than an extra contract for bailment. Therefore the implied warranty for the goods sold themselves extends also to goods supplied under the same contract.

In addition, the goods sold are to be reasonably fit for the purpose for which they are required. Mineral water is not reasonably fit for the purpose for which it is required if it generates gas to such an extent that the bottle containing it bursts. Pol. R.: Consumer protection. Add. Pnt.: The Sale of Goods Act: “Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which is in the course of the seller’s business to supply (whether he be manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose.”

Class NotesNOTE: Section 96 may not have applied: “Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.” It does not include a provision for goods supplied.

Res ipsa might not have worked here either since the bottles are not in the exclusive control of the defendant.NOTE: Bailer’s Warranty

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Bailment: A delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract; involves a change in possession but not in title.

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Case Name: Hoisting Engine Sales Co. v. HartSoC: The lessor of defective equipment sued the lessee of said equipment to recover the rental reserved in the lease.PB: The lessee counterclaimed by setting up a breach of warranty and demanding the damages sustained in consequence thereof. At trial the defendant testified that he told the plaintiff what he intended to use the equipment for in detail. The testimony was received over objection and exception. Trial court ruled in favor of the lessee. The lessor appealed. The appellate court unanimously affirmed the trial court’s judgment in favor of the defendant. The lessor appeals.Facts: The lessee leased equipment from the lessor “to be used by the lessee on his contact at Singac, N. J.” per the contract agreement. The lessee had to a subcontractor to excavate a trench and lay about ten miles of water pipe. The defendant intended to operate an orange peel bucket to do the digging with the derrick and also intended to use the same machine to put the pipe in the trench. The hoist could not be operated as designed to work and the boom broke when attempting to lift one of the pipes. After the lessee had installed the traveler and hoist it broke down completely and failed to do the work for which it was hired. Issue: Was the trial court correct in permitting parol evidence of a conversation with the plaintiff’s president, preceding the execution of the lease, wherein the president was told the nature of the defendant’s contract and the kind of machinery required as evidence of an implied warranty arising out of the transaction?RoA: Affirmed.Holding: Yes, the trial court was correct in permitting parol evidence of a conversation with the plaintiff’s president, preceding the execution of the lease, wherein the president was told the nature of the defendant’s contract and the kind of machinery required as evidence of an implied warranty arising out of the transaction.Doc. R.:Parol Evidence: It does not vary the terms of the written instrument to show by parol that the plaintiff knew what it was writing about when it referred to the defendant’s contract within its contract with the defendant.Oral Contracts: If there be an implied warranty in the hiring of machinery for a special purpose, that it is and will be fit for such use or at least will work, then the warranty may be proved or implied even though hiring was by written agreement containing no warranty. All implied warranties may attach to a written as well as unwritten contract.Implied Warranty for Bailment: There is an implied warranty in the hiring of property or bailment of certain kinds of property. The owner of a chattel which he lets out for hire is under the obligation to ascertain that the chattel so let out by him is reasonably fit for the purpose for which it is expressly let out or for which, from its character, he must be aware it is intended to be used: his delivery of it to the hirer amounts to an implied warranty that the chattel is in fact as fit and suitable for that purpose as reasonable care and skill can make it.Pol. R.:Add. Pnt.: (Dicta) It may be that the hiring of chattel should be assimilated to the sale of goods and that section 96 of the Personal Property Law applies.Class Notes: This case was decided under common law.

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Chysky v. Drake Brothers Co. SoC: A waitress brought this action against a cake manufacturer to recover damages for injuries sustained when she ate a piece of cake with a nail baked into it that her employer had bought from said cake manufacturer, upon a theory of implied warranty that cake was fit for human consumption.PB: The jury returned a verdict in favor of the plaintiff and the trial court entered the jury verdict. The defendant appealed. The appellate court unanimously affirmed. The defendant appeals.Facts: The plaintiff was employed as a waitress in a lunchroom. Her employer paid her $30 a week and furnished her room and board. She received from her employer one day, as part of her lunch, a piece of cake which had been made and sold to the owner by the defendant. While she was eating it a nail, baked into the cake in a way that it could not be discovered by inspection, stuck in her gum, which became infected as to necessitate the removal of three of her teeth. Issue: Did the appellate court err in affirming judgment for the plaintiff thereby holding that there was an implied warranty inured to the benefit of the plaintiff even though there was no contractual relationship between her and the defendant?RoA: Reversed. Holding: Yes, the appellate court erred in affirming judgment for the plaintiff thereby holding that there was an implied warranty inured to the benefit of the plaintiff even though there was no contractual relationship between her and the defendant.Doc. R.: Accompanying all sales by a retailer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption (Race v. Krum); however, a manufacturer or seller of food or other articles of personal property, is not liable to 3rd person, under implied warranty, who have no contractual relations with him, because privity of contract does not exist between the seller and such 3rd persons, and unless there be privity of contract, there can be no implied warranty.Pol. R.: Limiting consumer protection. Narrows implied warranty doctrine. Add. Pnt.: (Dicta) Exception: It may be assumed that thunder certain facts and conditions the manufacturer of an article would be liable to a third person, even though no contractual relationship exists between them, if the article sold were negligently prepared or manufactured (Macpherson v. Buick). But the recovery in this case was not based upon the negligence of the defendant. Plaintiff limited her right to recover to breach of warranty.(Dicta) An action may be maintained to recover damages caused by breach of an implied warranty in the sale of food to a consumer for immediate consumption. Whether this warranty extends to a wholesaler was expressly reserved (Rinaldi)

Class NotesWarranty is contractual and has nothing to do with tortsPolicy reasoning for implied warranty is to protect the consumer, so why not pass this cost on to the manufacturer. Case seems to go against the policy rationale for implied warranty.

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Temple v. KeelerSoC: A restaurant patron brings this action against a restaurant owner to recover for loss and damage alleged to have been caused by sickness resulting from the consumptions of fish in the owner’s restaurant which was unwholesome and unfit for human food, whereby the patron became ill from ptomaine poisoning. PB: Trial court entered verdict for the patron. The Appellate court unanimously affirmed. The restaurant owner appeals. Facts: P entered D’s restaurant, ordered a portion of fish, received it, ate it, paid for it, and later became ill.Issue: Was the appellate court correct in affirming the trial court’s judgment for the plaintiff thereby holding that where a customer enters a restaurant, receives, eats and pays for food, delivered to him on his order there is an implied warranty that the food is reasonably fit for human consumption?RoA: Affirmed.Holding: Yes, the appellate court was correct in affirming the trial court’s judgment for the plaintiff thereby holding that where a customer enters a restaurant, receives, eats and pays for food, delivered to him on his order there is an implied warranty that the food is reasonably fit for human consumption.Doc R: The owner of a restaurant sells the food which he provides for his guests. The facts in this case are very similar to those in Race v. Krum where it was found that there was an implied warranty. Pol R: Protecting the Consumer.Add. Pt.: (Dicta)Apart from Race v. Krum the court would still be compelled to reach the same decision based on the decision in People v. Clair for what constituted a sale of goods.

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J. Aron & Co. v. SillsSoC: A buyer brought this action against a retailer to recover for breaches of warranties in connection with the sale of canned condensed milk that became fermented, unfit for human consumption and commercially useless. PB: Trial court entered verdict for P. The appellate court affirmed. D appeals. Issue: Was the trial court correct in entering judgment for the plaintiff for breach of warranty, given that the milk was unfit for human consumption?RoA: Affirmed. Holding: Yes, the trial court correct in entering judgment for the plaintiff for breach of warranty, given that the milk was unfit for human consumption.Doc R: The purpose for which these goods were required was at least by implication known to the seller.

Even were the trial court in error as to the existence of an implied warranty that the goods in question were fit for human consumption, bought as they were by description from one who dealt with them, there was a warranty that they were of merchantable quality.

If condensed milk is unfit for human consumption, it does not comply with this warranty.Pol R: Protecting the consumer

Class NotesMerchantable warranty: std quality of good fit for human consumption (eg: water, pork)

NOTE: Retailer vs. Manufacturer (privity of K)

Redmond v. Borden’s Farm Products Co.SoC: An infant brought this action against the manufacturer to recover for personal injuries alleged to have been sustained as a result of the manufacturer’s negligence, alleging that the infant was injured by broken glass contained in a bottle of milk that passed into her mouth while she was drinking the milk.PB: The case was submitted to the jury on a theory of breach of implied warranty. Trial court entered verdict for P. Appellate court affirmed. D appeals.Facts: The infant’s mother procured milk and paid for it. The infant was injured by broken glass contained in a bottle of milk that passed into her mouth while she was drinking the milk.RoA: Reversed.Doc R: No privity between infant and manufacturer. Ct. decides on the authority of Chysky.

Class Notes: Remember VA RR; less responsibility to those who can’t protect themselves (conflicts w/ policy rationale to protect consumer)

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Vaccaro v. Prudential Condensed Milk Co.SoC: A married woman brought this breach of implied warranty action against the manufacturer of milk to recover damages alleged to have been sustained by her by reason of having partaken of milk that was in an unwholesome condition.PB: This action was tried and a verdict was rendered by the jury in favor of the plaintiff. D moved to set aside the jury verdict and to dismiss the complaint. Facts: P bought and paid for the milk, which was for the sole use of herself and her infant child. She lived with her husband. There is no evidence that P was self-supporting or that she depended on her husband for supportIssue: Did an implied warranty extend to the married woman?Result: Motion to set aside verdict granted and complaint dismissed.Holding: No, an implied warranty did not extend to the married woman.Doc R: In the absence of any evidence to the contrary, there is the presumption that the moral and legal obligation on the part of the husband to support his wife and family is being carried out. Implied warranty does not extend to the wife because was acting as an agent for her husband; thus there was no privity of K between her and the manufacturer.

Ryan v. Progressive Grocery Stores, Inc.SoC: A husband brought this action for breach of warranty against the grocer to recover damages for injuries sustained when he, through his wife, who acted as his agent bought a loaf of bread from said grocer that had a pin concealed in it which hurt his mouth. PB: There was judgment for the damageFacts: P’s wife stated to the salesman that she wished to have a loaf of a particular brand of bread. The salesman gave her what she asked for, wrapped in a sealed package as it had come from the baker of the brand. Issue: May the plaintiff recover under an implied warranty of merchantability?RoA: AffirmedHolding: Yes, the plaintiff recover under an implied warranty of merchantability.

Damages for breach of warranty of merchantable quality is more than the price of good where the dealer had notice from the nature of the transaction that the bread was to be eatenDoc R: Loaves baked with pins in them are not of merchantable quality. Relies in the precedent set in J. Aron & Co. v. Sills. Pol R: Protecting the ConsumerAdd. Pt.: (Dicta)There are times when a warranty of fitness has no relation to a warranty of merchantability and times when they coexist and recovery may be founded on either.

Class Notes: The seller did not have a reasonable opportunity to inspect here because the bread was prepackaged and he was not the manufacturer or packager.

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Giminez v. Atlantic & Pacific Tea Co.SoC: Wife brought an action for breach of warranty and negligence and husband brought a breach of implied warranty action for loss of consortium and medical expenses against the retailer for injuries sustained by the wife from ingesting crab meat, bought from the retailer that contained a deleterious substance. PB: Husband’s claim was originally based on negligence, but at trial he amended to breach of implied warranty and eliminated the negligence claim. Trial court entered verdict for the plaintiff. Defendant appealed. Appellate division unanimously affirmed trail court’s decision for the plaintiff. Defendant appeals. Facts: Wife bought the crab meat sealed in a can from the retailer. The crab meat contained a deleterious substance other than crab meat. As a result, when wife ingested said meat, her stomach became lacerated and cut. Issue: Did the trial court err in entering judgment for the plaintiff, thereby holding that a husband may maintain a breach of implied warranty to recover for the consequential damages sustained by him for loss of consortium and medical expenses?RoA: Judgment on husband’s claims reversed; judgment on wife’s claims affirmed. Holding: Yes, the trial court erred in entering judgment for the plaintiff, thereby holding that a husband may maintain a breach of implied warranty to recover for the consequential damages sustained by him for loss of consortium and medical expenses. These claims may however be brought in negligence.Doc R: The husband may sue when the wife acted simply as his agent in making purchases, but where the wife is the purchaser, the right of action is hers. To maintain a breach of warranty, there must have been evidence of a contract between the parties, for without contract, there can be no warranty. Pol R: Privity of contract. Add. Pt.: (Lawyer’s argument) Lawyer for the appellant (Atlantic & Pacific) offered inconsistent arguments: Wife was acting as husband’s agent only, but the husband could not recover under breach of implied warranty because the warranty was to the wife, not the husband. This is contradictory because if wife is only an agent, then the husband is the person to whom the warranty was made as the principle.

Class Notes- Retailer can’t inspect food because it’s canned.- Shift: wife is no longer an agent, but a purchaser with a contractual relationship, and

husband does not have privity. (Change in the treatment of women)- Does it matter that plaintiffs are married, or only that they shared expenses?- Court is taking very slow steps: Believes that legislature should be responsible for

drafting laws to protect the consumer. - After this case you can say that a woman, a mother, can act as an agent for her child

using the agency theory to say that the child should be protected. Remember how far down the road we can go.

- Seems to be a social need to protect children. Purpose of statues is to protect the consumer.

- Statute has a lot of weeway in interpreting statutes. Courts use common law and interpretation to make these decisions.

- Evolved social policy.

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McSpedon v. KunzSoC: The buyer brought this breach of implied warranty action against the retail seller, the distributor, and the manufacturer to recover damages for injuries alleged to have been sustained by the buyer through sickness contracted by her from eating pork infested with trichinae. PB: The trial court ruled in favor of the distributor and against the retail seller and the manufacturer. The appellate division affirmed. Facts: P purchased pork from the butcher/retail seller which she fried on a gas stove. They wer about half an inch thick and she cooked them in a big frying pan until she thought they were well done. After eating the pork she was poisoned and developed a disease from a worm parasite usually found in pork. 2% or 3% of of all fresh pork are infected with these parasites. They render food unwholesome and cannot be seen with the naked eye, but can be discovered with a microscope. The slaughterer/manufacturer knew of a method to discover it as well as a method to kill or eradicate the parasite. The housewife testified that she knew nothing about the requisite degree of heat, or the disease itself. The expert in the case testified that he didn’t know these things until he was taught them in the professional school after he graduated from college. Issue: Does the sale of pork that passes government inspection, but is not fit for human consumption constitute a breach of implied warranty where there are means available to make the meat safer for the consumer?RoA: Affirmed. Holding: Yes, the sale of pork that passes government inspection, but is not fit for human consumption constitutes a breach of implied warranty where there are means available to make the meat safer for the consumer.Doc R: Based on the ruling in Rinaldi: On every such sale of food by the dealer for immediate human consumption there is an implied warranty of its wholesomeness. Pol R: Consumer’s know nothing about the danger lurking in meats or the requisite heating point to destroy parasites, and must rely on the grocer, the butcher and the slaughterer to sell them wholesome food. Dissent: The question in this case is whether the presence of trichinae renders pork unmerchantable. Pork is fit for human consumption if used in the manner that the packer intended it to be used. There is no finding that the pork was unwholesome if cooked in the ordinary manner and no evidence would justify such a finding and without it no judgment against the slaughterer/manufacturer can be sustained. Warranty of merchantablity is different than fit for human consumption.

Class Notes- implied warranty case for merchantability: It is assumed that this case was decided upon

merchantability, not fitness because of the dissent. - Similar to Canavan becaue of policy reasons. Canavan protets the city while this caes

protects the consumer. - Rinaldi is different because it ruled that the food was unfit or human consumption.- Packer is responsible if product is unmerchantable. (NOTE: merchantability vs. fit for

human consumption/wholesomeness)- Policy driven case- Judge might have thought this or decided this case because he might not have known that

pork had to be cooked for so long.

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Blessington v. McCrory Stores Corp.SoC: Father sues department store on behalf of his infant son for breach of implied warranty of fitness for use to recover for the injuries and pain and suffering of his son sustained from burns he suffered when a cowboy suit he was wearing that his mother bought from the defendant department store came into contact with a flame and ignited. PB: This action was commenced more than 3 years after the accident. The complaint alleged 4 causes of action, 3 of which were dismissed, leaving only the claim for breach of implied warranty of fitness. The department store moved to dismiss the claim on the grounds that the theory was such that a suit is in reality one in negligence that should be barred by the 3 year statute of limitation. The trial court denied the motion to dismiss. The appellate division affirmed the decision of the trial court. The defendant appeals. Facts: The department store sold the suit made by the manufacturer of inflammable material supplied by the supplier to the infant’s mother for infant’s use. The infant died from burns suffered when said suit came into contact with a flame and ignited. Issue: Was the appellate court correct in affirming the decision of the trial court denying defendant’s motion to dismiss, holding that although a breach of a duty may rest upon, or be associated with, a tortious act, it is independent of negligence, and so such a cause of action gets the benefit of the 6 year limit as being on an implied contract obligation or liability?RoA: Affirmed.Holding: Yes, the appellate court was correct in affirming the decision of the trial court denying defendant’s motion to dismiss, holding that although a breach of a duty may rest upon, or be associated with, a tortious act, it is independent of negligence, and so such a cause of action gets the benefit of the 6 year limit as being on an implied contract obligation or liability.Doc R: While an action for breach of implied warranty of fitness may involve, incidentally, some showing of negligence, the contract breached is not merely one to use due care, but it is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought. Proof of negligence is unnecessary for recovery in such a suit. Pol R: Protecting the consumer.

Class Notes- suit sold to mother by department store; therefore wife was the purchaser, but husband

filed complaint, and infant was injured. - Why just pain and suffering instead of wrongful death?- Redman; here perhaps there is no need for privity; infant had no privity.- Seems to be more policy driven

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Bowman v. Great Atlantic & Pacific Tea Co.SoC: Victim, who shared expenses with the buyer for food, brought a breach of implied warranty action against the grocer to recover damages for injuries sustained when she used oil, bought by the buyer from the grocer, that contained a dead mouse, alleging that because the she and the buyer shared expenses, the buyer was acting as her agent when she purchased the oil and therefore there was privity between the victim and the grocer to sustain a cause of action for breach of implied warranty. PB: The grocer moved to dismiss for failure to state a cause of action since there was no privity of contract. The trial court denied said motion. The grocer appealed. The appellate court affirmed the trial courts decision. The grocer appeals. Facts: Victim lives with and shares expenses with the buyer. The buyer bought oil from the grocer. The grocer knew the purpose for which the oil was to be used. The oil contained a decayed mouse. The victim used said oil and became ill from it. Issue: Was the appellate court correct in affirming the trial court’s denial of defendant’s motion to dismiss for failure to state a claim, holding that where the contract is negotiated by another as agent of plaintiff, its warranties may be enforced by plaintiff? RoA: Affirmed. Holding: Yes, the appellate court was correct in affirming the trial court’s denial of defendant’s motion to dismiss for failure to state a claim, holding that where the contract is negotiated by another as agent of plaintiff, its warranties may be enforced by plaintiff. Class Notes- Moves away from privity requirement- One can act as principle for herself and agent for another (?)- Agency theory is not confined to husbands and wives.

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Case Name: Mouren v. Great Atlantic & Pacific Tea Co.SoC: Action bought by husband and wife against the retailer to recover damages for breach of warranty and for negligence, alleging that the residue from grinding of pork had been allowed to mix with the beef they had purchased, and that was the source of their illness.

PB: The trial court entered judgment for the plaintiff and awarded damages. The appellate court affirmed judgment for the plaintiff with a modification to a finding of fact and conclusion of law stated in the opinion of the trial court and a reduction in the award to the plaintiffs.

Facts: Plaintiff husband procured money from plaintiff wife and purchased 2 top round steaks from the retailer. Steaks were ground by D in the grinding machine in which fresh pork had previously been ground and said machine was not always cleaned after pork was ground in it. Wife molded meat into patties, cooked it, and served it medium rare. Both husband and wife subsequently became ill and were diagnosed with trichinosis. Plaintiffs had purchased all of their meat from the defendant for the past 10 months and had not dined out or eaten pork for the past 10 months. Incubation stage for trichinosis ranges from a few hours to 10 days.

RoA: Affirmed.

Holding: A prima facie case has been established for a breach of implied warranty, and as a matter of law, the plaintiff wife may recover for said breach. Class Notes: Husband can be both principle and agent.

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Case Name: Greenberg v. LorenzSoC: The minor and her farther sue a retail food dealer for damages for breach of alleged warranties of fitness and wholesomeness for injuries sustained when she ingested salmon from a can bought from the retailer that contained some pieces of sharp metal.PB: The trial court rendered judgment for both plaintiffs on the warranty theory, holding that although the father bought the can of salmon the implied warranty extended to his 15 year old daughter asa member of his household. The appellate court affirmed, holding that the old cases were no longer controlling; however the Chysky case is still law and it forbids a recovery on warranty breach to anyone except the purchaser. Thus the father has judgment for his expenses but the minor’s suit was dismissed for lack of privity. Facts: The retailer sold the father a can of salmon for consumption in the family home. The tinned fish contained some pieces of sharp metal which injured the child’s teeth and mouth.Issue: Did the court below err in dismissing the minor’s cause of action solely on the on the ground that the food was not purchased by the child. but by her father?RoA: Affirmed with modification reinstating the minor’s claim. Holding: Yes, the court below erred in dismissing the minor’s cause of action solely on the on the ground that the food was not purchased by the child. but by her father.Doc R: It is not just or sensible to confine the warranty’s protection to the individual buyer. At least as to household food and goods, the presumption should be that the purchase was made for all members of the household. Pol R: Protecting the consumer. Members of household, particularly children cannot protect themselves.Add. Pt.: (Concurrence) Concurred in the modification, but limited to the facts of this case; the broadening of liability must be left to the legislature.

Class Notes - Extends privity to household family- Does no privity still mean no warranty given the several exceptions?

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Part IV: Legal PhilosophersLevi................................................................................................................99

Llewellyn.....................................................................................................100

Breitel..........................................................................................................101

Stotzky.........................................................................................................101

Michael........................................................................................................102

Justice Holmes.............................................................................................102

Justice Cardozo............................................................................................102

Gorgias Chart...............................................................................................103

Class Notes..................................................................................................104

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LeviLawyers- Urge similarities/differences in cases (persuasion by similar facts)- By bringing case for P, lawyers and clients are allowing vicarious participation of all

citizens

Judges- Cannot be completely impartial: arguments of lawyers make hearing fair- Bound by (1)precedent, (2)statute, (3)Constitution- Judges are to determine the similarities and differences between the facts of the present

case and the precedent- Have the doctrine of dictum that allows him to make is own decision*

Precedent- Constitution: most ambiguous (all we have is Framer’s intent and the text). Anything

specifically in the Constitution can’t be altered by case law- Statutes: manipulation is somewhere between the Constitution and case law; can

manipulate to a reasonable extent, but separation of powers comes into play- Case Law: extremely manipulative; fact specific- Can’t have general rule from first case; have to see how it will be interpreted- Law is expression of society; particularly relevant when ambiguity has to be resolved for

a particular case.

Law/Institutions- Problem: if we compare similarities and differences, when will it be just to treat different

cases as the same?- Law must remain ambiguous to allow for outside inferences- Law expresses the ideals of the community and are molded for the specific case.

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LlewellynLawyers- Present facts most favorable to your client - Use rules/precedent to help you predict what judges are going to do- Holdings show the lawyer what facts have legal significance - Roles

- Advocate: dispute resolution- Counsel: dispute avoidance

- Lawyer’s slip of etiquette is the client’s ruin- Bargaining in the shadow of the law - make an educated guess based on prcedent- Lawyers must have objective of doing well- Lawyers should know: (1)the rules/law, (2)the judges application of the rules, and (3)the

working situation (society/community/individual); He must understand what the law means to the courts and to laymen

Judges- How disputes are settled depends on the judge’s interpretation- Judge is like an umpire - in civil law the umpire has to wait to be called in (different in

criminal law). Judge takes rules of the game from existing practice- Judge has important role in charge to the jury (can shape the outcome of the case in this

way)- Sieve theory of facts: lawyers preset facts, trial court uses some in decision, appellate

court uses fewer, las facts standing create the rule of law- Judges still human and are lawyers too: prone w/o thought to twist analogies and rules,

and instances to his conclusion; prone to disregard the implications which do not bear directly on his case.

Legal Education- Law as a liberal art not a science- Need to learn: (1)technical proficiency, (2)intellect, (3)spirituality

Precedent- True Rule: cases only have meaning in their social setting- A case, standing alone, gives no guidance; have to know which facts have been deemed

relevant- legal rules are post hoc rationalizations of the actual decision - rule laid down as a

function of the outcome of the case- Judge can always interpret a case strictly or loosely - Even wayside remarks by the court shed light on the remarker- Law is not an exact science

Law/Institutions- The law is what the judges do with it; what they do with the disputes presented to them - Legislation is a tool of social readjustment - Reasonable man rules our legal theory- Law maintains order more than it makes it (Society creates order, law maintains it)

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- If the rules were results there would be little need for lawyers- Affecting ppl’s behavior

- Anticipating/preventing disputes- regulating what ppl do before disputes- depends on the layman interpretation of the law- subject to the life of the community and the needs of the individual (ie:the working

situation)

BreitelLawyers: Courage is a characteristic of an ethical and good lawyer

Judges- Most important decision is whether to play an affirmative or inactive role- Goal of the judge is to be detached, but still concerned- Sometimes a judge can’t be passive if one lawyer (or both) are clearly inferior- The advocate in the judge is never gone; sometimes they can be biased- Stare decisis is not a dam [preventing the judge from making his own conclusions of law]

Precedent: Stare Decisis is not a dam

StotzkyLawyers- Must understand the substantive law; known who is hearing your case; lawyers must

properly phrase the argument for the court- Heavily influenced by Llewellyn- Lawyers should both do well and good (moral bases for becoming a lawyer)

Judges- Check and balance system; societal values control the situation- Judges bring their own background into the situation as well

Legal Education: Doesn’t teach enough craft - not just substantive law, more of how to use precedents, etc.

Precedent- Broad and narrow holdings to fit the facts; don’t really know a holding until the next

court has interpreted it (how much precedential value depends on the next case)- The rule comes out when you see how the ct interprets precedent in future cases

Law/Institutions: Law reflects the cultural and moral perceptions of society (it doesn’t create it). But law and behavior do condition each other (eg: what we have to include in K)

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MichaelLawyers- must have a profound understanding of law as a political instrumentality and of law as a

science.- must possess those good habits of learning and knowing, of thinking and communicating,

and of doing (skills of the lawyer)- must be both a prudent and just man to work for not only the good of his client, but the

common good of the society in which he practices

Legal education- The ultimate end of legal education ought to be the the good artist in law- must not only be intellectual, but moral and practical as well

Law- 2 closely related ways in which rules of law can be understood and criticized: (1)in terms

of the nature of what they regulate, and (2)in terms of the ends which regulation is designed to serve.

- Rules of procedural law regulate the intellectual affair we call controversy- Issues of fact: issues about matters of fact which are legally significant- Issues of law: the practical issues about what ought to be done - Issues of consequence: award or denial of a legal remedy.

- Procedural rules are intended to protect the litigants against selfishness and avarice and stupidity and incompetency and partiality.

Justice Holmes- Formalistic Judge- Not a follower of Llewellyn and Levi’s true rule that law exists within its social setting- 4 principles

- Confusion between morality and law (should not be)- Forces which determine the law’s growth and content - Present condition of law as a subject of study- Jurisprudence

Justice Cardozo- Canons of Cardozo

- “Agreement” implies mutuality of obligation- Construe contract against the drafting party (policy reason: justice for the little guy)

Opinions: Moran, Rubber Trading, Wood v. Lucy, US Rubber, Cohen v. Lurie, Sun Printing

General concepts- Conscious and aware of the business world- Tries to integrate “good faith”- Decides 1st how he wants a case to come out, then uses precedent to support his decision- Hid his light under a bushel: Extremely persuasive judge w/o alienating ppl or being

overt

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Gorgias

Socrates Gorgias Polus Callicles

- Moral Position: Better to suffer evil than to evil; don’t harm others; better to be punished on earth than to suffer in the afterlife.

- Does not think there is any substantive (knowledge) basis to Gorgias’ rhetoric & thus rhetoric is immoral; persuasion w/o knowledge is immoral.

- Although he may not defend himself at trial, the cost of losing his life is better than living in immoral society

- The others? They will be defenseless in the afterlife.

- Claims he can teach anyone to be persuasive

- Says oratory is most morally acceptable profession, but does not claim to make everyone moral by his speeches

- Socrates says that a student can use rhetoric taught by Gorgias to do something immoral

- In argument w/ Polus, Socrates says that only life worth living is that of philosopher

- Socrates does not say what is morally good, but brings up afterlife as reason to want to be good

- Socrates says dictators are not powerful because their evil ways are not punished and they are therefore suffering more than anyone else in the afterlife; thinks that true power is the ability to push people to do what is right so they can be moral

- Polus thinks dictators can do what they want.

- Socrates indicates that he thinks Callicles is only worthy opponent

- Callicles moral stance: Might makes right

- The powerful do what they want; conventional laws of morality are created by the weak to stop the strong

- Morality is the law of nature where the strong rule over the weak

- Callicles does not respect Gorgias who only teaches & does not practice.

- Does not respect Polus because he only follows

- Criticizes Socrates for pursuing philosophy instead of pursuing being rich, prestigious and powerful.

GorgiasDiff in being a citizen in Athens and citizen of the U.S. (?)Gorgias argue that he can teach someone to persuade a lay audience to believe something that is purported by expertsSocrates: Better to suffer wrong than do wrong; one should always seek to do what is good.Means and ends: if Socrates goal to bring one to moral righteousness, is his method right?Gorgias claims is respectable because what he does is the greatest good to society which is teach ppl how to represent themselves. Socrates is more gentle in his dealing with Gorgias because...Gorgias is favored by the surrounding pplSocrates and Gorgias seem to be from the same generationSocrates criticizes the morality of Gorgias profession.

Polus“True believer” --> believe blindly without seeing the weakness in their own arguments.Polus is not respected in the same way as Gorgias so when Polus interrupts it upsets SocratesThe distinction between the way Socrates treats Polus and the way he treats Gorgias is broad.Does Socrates methods of convincing men of what is true meat that end or do his means and end conflict? Are the means Socrates uses sufficiently moral to meet his end?

Callicles Young, rich and ambitious

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More intellectual able to argue with Socrates than Polus and GorgiasHe argues that those who are powerful can do what they want. Is Callicles then a Hedonist? --> Good pleasures v. bad pleasuresSocrates uses a method that does not convince Callicles even if Callicles argument leads to a logical contradiction. ---> Callicles just stops arguing, but does not concede to Socrates.

Class NotesEthics (Article by Singer)- What is the goal of philanthropy?

- To make themselves feel important?- To ease one’s conscience? --> Duty to make past wrongs right.- Belief that to whom much is given much is required

- Value of a human life? --> Is one person’s life worth more than another’s?- Government v. private philanthropy

- Government- government doesn’t give much- political drivers in giving aid

- Private philanthropy is better because its more efficient- fair share- giving everything- counter: “it’s inefficient just throw money at a problem”

- There are no easy solution to these problems- human nature is peculiar

Is it morally permissible to do the things a lawyer does? If it is not, then being a lawyer is not the way to live your life.

Why practice law? (Means and ends: Are the means acceptable? Is the intended goal (end) acceptable?) - To obtain wealth (?) (What will you do with your wealth?)

- Takes too much out of life- Most lawyers aren’t rich

- Possible that what one does as a lawyer is a moral end in and of itself- The attainment of practical wisdom (makes being a lawyer a moral means to an end)

What makes a good lawyer?- objective about clients interests, but empathetic about their feelings- knows what moves people- good judgment

Roles lawyers assume- judge- counselor

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DefinitionsAffidavit of Ownership: A voluntary declaration of ownership written down and sworn by the declarant before an officer authorized to administer oaths.

Bailment: A delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract; involves a change in possession but not in title.

Cause of Action: (1)A group of objective facts giving rise rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person. (2)A legal theory of a lawsuit

Complaint: The initial pleading that starts a civil action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief.

Consideration: An act, forbearance, or return promisee bargained for and received by the promisor from the promisee; that which motivates a person to do something. Consideration or a substitute such as promissory estoppel is necessary for an agreement to be enforceable.

Conversion: (1)The act of changing from one form to another; the process of being exchanged. (2)The wrongful possession or disposition of another’s right whereby that other person is deprived of the use and possession of property.

Demurrer: A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer (ie: motion to dismiss)

Detinue: A common law action to recover personal property wrongfully detained by another. Plaintiff must prove: superior possessory right; not legal ownership. Remedy: item OR value of the item (at the end of action), damages for the detention.

Dicta: (1)Statements of opinion or belief considered authoritative because of the dignity of the person making it. (2)Familiar rules or maxims Due Process (Procedural): The minimal requirements of notice and a hearing guaranteed by the Due rocess Clauses of the 5th and 14th amendments, especially if the deprivation of a significant life, liberty or property interest may occur. Due Process (Substantive): The doctrine that the Due Process Clauses require legislation to be fair and reasonable in content and to further a legitimate governmental objective.

Ejectment: A legal action by which a person wrongfully ejected from property seeks to recover possession, damages, and costs. The essential allegations in an action for ejectment are that (1)the plaintiff has title to the land, (2)the plaintiff has been wrongfully dispossessed or ousted, and (3)the plaintiff has suffered damages.

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Equity: A right, interest or remedy recognizable by a court of equity. Usually a non-monetary remedy, such as injunction or specific performance, obtained when available legal remedies cannot adequately redress the injury.

Formal Contract: An enforceable agreement between 2 or more parties to do or not to do a thing or set of things

Formal Style: Opinion and decision guided according to case law and precedent

Grand Style: Policy driven decision

Lien: A legal right or interest that a creditor has in another’s property, lasting usually until a debt or duty that it secures is satisfied.

Nolle Prosequi: A legal notice that a lawsuit or prosecution has been abandoned.

Non Assumpserunt: Not guilty plea

Nuisance: A condition, activity, or situation that interferes with the use or enjoyment of property; unlawful use of property to the discomfort, annoyance, inconvenience of another. Requirements: actual interference with use and enjoyment of property, does not have to be on P’s property. Remedy: damages if there is substantial harm

Period Style: The way a judge forms his opinions; either more policy driven or more case law driven. Refers to a way of thought, not a writing style.

Personal Jurisdiction: Power of the court over a particular person. Power to haul a person into court.

Pleading: A formal document in which a party to a legal proceeding sets forth or responds to allegations, claims, denials, or defenses.

Quantum Meruit: Reasonable value of services; damages awarded in an amount considered reasonable to compensate a person who has rendered services in a quasi contractual relationship.

Quantum Valebant: Reasonable value of goods and materials

Redelivery Bond: what person must file if they decide that they’re not going to return the item being requested. Must be filed with affidavit of ownership.

Remand: (1)Act or instance of sending a case, claim or person back for further action. (2)An order remanding a case or claim.

Replevin: An action for the repossession of personal property wrongfully taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court

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decides who owns it. Prove: superior possessory right; not legal ownership. Remedy: item (returned immediately), damages for the taking/detention.

Res Judicata: (1)An issue that has been definitively settled by judicial decision. (2)An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been- but was not- raised in the first suit.

Rule Absolute: Affirmation of Rule Nisi grant of new trial.

Rule Nisi: Temporary granting of new trial. Asks ct. to make a ruling that does not have any force as of yet, means that the side not asking for rule nisi can come forward with new evidence to prove why there should not be a new trial. If the ct. still thinks there should be a new trial then a rule absolute and a new trial is granted.

Subject Matter Jurisdiction: Authority of a court over a case; constitutional competence to hear a case.

Trespass: a cause of action to recover damages for unlawful entry into another’s property. Requirements: must show that damage was done while property was in the rightful owner’s possession, must be immediately injurious, does not require substantial harm (any harm works). Remedy: Damages in proportion to the harm, damages for the time that the property was invaded (nominal).