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REMEDIES OUTLINE

I. BASIC REMEDIAL TOOLS


a. Types of Remedies
i. Coercive remedies → an injunction or specific performance order
is available from a court sitting in equity. 3 types of injunctions:
restorative injunctions, prophylactic injunction, and structural.
ii.Damages → to compensate the П for losses sustained in
violation of their rights. CL says that damages cannot be too
remote, speculative or uncertain.
iii.Restitution → the goal of restitution is to restore property to its
rightful owner by returning the П to a position held before a
wrong, or to disgorge from a Δ any unjust enrichment
occasioned by the wrong to the П.
iv.Declaratory relief → purpose is to obtain a declaration of the
rights or legal relations between the parties
II. SCOPE OF LEGAL AND EQUITABLE REMEDIES
a. A plaintiff must establish:
i. the substantive entitlement to relief; and
ii.a legal basis for the desired remedy; and
iii.factually the requirements for the desired remedy
b. Limitations on Remedies
i. Orloff v. Los Angeles Turf Club
1. F: Orloff П brought an action for injunctive relief against
the Los Angeles Turf Club Δ after he was ejected from the
Turf Club Δ and ordered not to return.
2. R: The Civil Code of CA establishes the law of the state
respecting the subjects to which it relates, and its
provisions are to be liberally construed with a view toward
affecting its objects and toward promoting justice.
III. PREVENTIVE INJUNCTIONS
a. A preventive injunction is a court order designed to avoid future harm
to a П by controlling a Δ’s behavior. It is preventive in the sense that it
is avoiding the harm.
b. Inadequacy of Remedy at Law → courts traditionally cite the maxim
that equity will not grant relief when the remedy at law, usually
damages, is adequate. In cases involving interest in real property,
courts often say that the uniqueness of each parcel of land makes
damages inadequate to compensate losses.
i. Thurston Enterprises, Inc. v. Baldi
1. F: Baldi П brought an equitable action to (1) determine
the scope of rights in an easement which Baldi П had
deeded to Thurston Δ; and (2) to enjoin Thurston Δ from
using heavy trucks for hauling fill onto Thurston’s Δ
property by way of the easement.
2. R: In an equitable action to determine the scope of rights
in an easement, the remedy will be limited to future
conduct affecting the reasonable use of the easement and
possession of the servient estate.
ii.Wheelock v. Noonan
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1. F: Wheelock П gave Noonan Δ a license allowing him to


place a few large rocks on his lots, to be removed in the
spring, but instead huge quantities of rock were deposited
and not removed as agreed.
2. R: While a court of equity ordinarily will not redress a
trespass, it will do so under peculiar circumstances where
the trespass is continuous and a multiplicity of suits at law
would be required for complete relief.
3. A continuing trespass requires a showing that the Δ will
not follow a demand to vacate.
4. A pattern of repeated trespasses requires a showing that
the Δ is likely to continue to repeat the invasions in
knowing violation of П’s rights.
c. Irreparable Harm
i. K-Mart Corp. v Oriental Plaza, Inc.
1. F: K-Mart П sued to have Oriental Plaza Δ tear down
unapproved construction that constricted parking and
obstructed the view of K-Mart’s П store from the highway.
2. R: Irreparable harm occurs when money damages cannot
compensate for the injury, such as an injury to reputation,
goodwill, or real estate interests.
ii.Muehlman v. Keilman
1. F: Keilman П brought an action for injunction and
damages against Muehlman Δ, asserting that Muehlman Δ
started and raced the engines of his two semi-trailer
trucks at all times during the day and night immediately
adjacent to Keilman’s П residence and that such actions
constituted a nuisance.
2. R: The general rule under Indiana law is that if the П can
show great injury and no adequate remedy at law, he is
entitled to injunctive relief.
d. Balancing Interests and Practicality Considerations
i. Triplett v. Beuckman
1. F: Triplett П brought an action for injunctive relief against
Beuckman Δ requiring Beukman Δ to remove a causeway
access to an island which Beuckman Δ had purchased
from Triplett П and to replace it with a bridge.
2. R: The owner of the dominant estate has the duty to
maintain and repair an easement and cannot make a
material alteration in the character of the easement if the
alteration places a greater burden upon the servient
estate.
ii.Galella v. Onassis
1. F: Galella П, a professional free-lance photographer,
brought an action against Onassis Δ and the three US
Secret Service agents, seeking damages for alleged false
arrest and malicious prosecution and an injunction against
the interference with his business by the alleged acts of
Onassis Δ is resisting his efforts to photograph her.
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2. R: Permanent injunctive relief is available where there is


no adequate remedy at law, where the balance of the
equities favor the moving party, and where success on
the merits has been demonstrated.
iii.eBay Inc. v. MercExchange **
e. Public Interest and Tribunal Integrity
i. Graham v. Cirocco**
ii.Boomer v. Atlantic Cement Company
1. F: Dirt, smoke, and vibration from the Atlantic Cement Co.
Δ became so offensive to surrounding neighbors as to
create a nuisance.
2. R: In an action by a landowner for relief from a
permanent, unabatable nuisance, the landowner is
entitled to a single recovery of permanent damages for
the total economic loss suffered on his property, but no
injunction will issue against the wrongdoer except one
merely designed to assure the payment of such damages.
iii.United States v. Oakland Cannabis Buyer’s Cooperative
1. F: The United States П sued Oakland Cannabis Buyer’s
Cooperative Δ seeking to enjoin the cooperative Δ from
distributing and manufacturing marijuana in violation of
the Controlled Substances Act.
IV. SPECIFIC PERFORMANCE
a. Entitlement
i. Walgreen Co. v. Sara Creek Property Co.
1. F: Sara Creek Δ attempted to breach a provision in
Walgreen’s П lease contract prohibiting Sara Creek Δ from
leasing space to another pharmacy in the same mall.
2. R: In choosing whether specific performance or money
damages are appropriate in a breach of contract case, the
costs and benefits of each remedy must be weighed, with
the burden of persuasion on the plaintiff seeking the
injunction, with the understanding that if the balance is
even, the injunction will be denied.
ii.Van Wagner Advertising Corp. v. S&M Enterprises
1. F: Van Wagner П contended that S&M’s Δ cancellation of
a lease of billboard space on the side of a building was
ineffective because only an owner making a bona fide
sale could terminate the lease, and Van Wagner’s П lease
had not been terminated by the former owner of the
building, Michaels, before she sold it to S&M Δ.
2. R: The point at which breach of a contract will be
redressable by specific performance lies not in any
inherent physical uniqueness of the property, but instead,
in the uncertainty of valuing it.
iii.Niagara Mohawk Power Corp. v. Graver Tank & Manufacturing
Co.
1. F: Niagara Mohawk Power Corp. П brought an action for
specific performance against Graver Tank &
Manufacturing Co. Δ to enforce the terms of a K between
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the parties that allowed Niagara П to terminate Graver’s Δ


contracting services “at any time for any reason.”
iv.Henderson v. Fisher
1. F: Henderson П entered into a contract with Baker
whereby the former was to move in with the latter and
take care of him for the remainder of Baker’s life.
2. R: A court may order specific performance by the estate
of a deceased promisor who passed away before
executing and delivering a deed to real property as
provided for by contract.
b. Fashioning Relief
i. Dover Shopping Center, Inc. v. Cushman’s Sons, Inc.
1. F: Dover Shopping Center Inc. П brought an action for a
mandatory injunction against Cushman’s Sons, Inc. Δ,
directing Cushman’s Δ to specifically perform covenants
contained in a lease executed between Dover П and
Cushman’s Δ after Cushman’s Δ decided to close its retail
bakery business located in Dover’s П shopping center.
2. R: Although specific performance will not ordinarily be
granted where the duty to be enforced is difficult to
supervise and continues over a long period of time, the
modern trend is to grant performance in the case of a
clear breach where the difficulties of enforcement are not
great.
ii.Shubert Theatrical Co. v. Rath **
iii.Wooster Republican Printing v. Channel 17 Inc.
1. F: Wooster Republican Printing П, a corporation that owns
and operates newspapers, radio stations and a
commercial printing business, brought an action against
Channel 17 inc. Δ to enforce a contract to sell the assets,
property, and business of Channel 17 Δ.
2. R: As an equitable remedy, specific performance will not
be ordered when the party claiming breach of contract
has an adequate remedy at law.
c. Contracts for the Sale of Goods
i. Sedmak v. Charlie’s Chevrolet, Inc.
1. F: Sedmak П sued Charlie’s Chevrolet, Inc. Δ for breach of
contract and specific performance after Sedmak П
allegedly entered into a contract with Charlie’s Δ to
purchase a Corvette automobile for $15,000 because,
when the automobile was delivered, Sedmak П was told
he could not purchase the automobile but would have to
bid on it.
2. R: A court may decree specific performance as a buyer’s
remedy for breach of contract to sell goods where the
goods are unique or in other proper circumstances.
ii.i.Lan Systems, Inc. v. Netscout Service Level Corp. **
iii.Weathersby v. Gore
1. F: Weathersby П, a cotton buyer, brought suit against
Gore Δ, a cotton farmer, for specific performance of a
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contract which obliged Gore Δ to sell the cotton produced


by him on 500 acres of land during the 1973 crop year.
2. R: Specific performance of contract will not be awarded
where damages may be recovered and the remedy in a
court of law is adequate to compensate the injured party.
iv.Ace Equipment Co. Inc. v. Aqua Chem, Inc.
1. F: Ace Equipment Co. Inc. П sued Aqua Chem. Inc. Δ for
specific performance of a contract for sale after Ace П
allegedly entered into a sales contract with Aqua Chem. Δ
for the purchase of a used 6000 KVA General Electric
Transformer, and Aqua Chem. Δ then refused delivery of
the transformer to Ace П.
V. EQUITABLE DEFENSES
a. Laches and Estoppel
i. Stone v. Williams **
ii.Danjaq LLC v. Sony Corp. **
iii.Geddes v. Mill Creed Country Club **
b. Unclean Hands and Unconscionability
i. Senter v. Furman
1. F: Senter П, a dentist, brought suit in equity to declare
that a house and lot that Senter П conveyed by warranty
deed to his nursing assistant, Furman Δ, was held by her
under a constructive trust.
2. R: Where a conveyance is used to conceal assets from
creditors and one of the parties to the conveyance falls
victim to the wiles of the other, no relief can be afforded
to the victimized wrongdoer and the parties are to be left
as they stand.
ii.North pacific Lumber Co. v. Oliver
1. F: North Pacific Lumber Co. П filed suit against Oliver Δ,
one of North Pacific’s П former employees, for breach of a
noncompetition clause in an employment contract Oliver
Δ entered into with North Pacific П after Oliver Δ left his
job with North Pacific П and went to work for another
company.
2. R: An employment contract which binds a person not to
exercise his profession for a period of time in a particular
area may be upheld if it is necessary to protect the
legitimate interest of the person in whose favor it runs
and does not impose an unreasonable hardship upon the
person against whom it is asserted.
iii.Campbell Soup Co. v. Wentz
1. F: Wentz Δ contracted to sell carrots to Campbell П but
instead sold them to Lojeski Δ.
2. R: Even though a contract may be perfectly legal, entitling
both parties to legal relief, equity will not provide specific
relief to any party who has driven too hard a bargain or
obtained too one-sided an agreement.
iv.Jones v. Star Credit Corp.
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1. F: Star П bought a freezer on time for $1,234.80, which in


fact has a market value of only $300.
2. R: Where the possibility of “oppression or unfair surprise”
makes it necessary for a court to grant relief from an
unconscionable contract, the UCC provides that the court
may either refuse to enforce the contract, excise an
objectionable clause, or limit the application of such a
clause to avoid an unconscionable result.
c. Election of Remedies
i. Head & Seemann, Inc. v. Gregg
1. F: Head & seemann, Inc. П sued Gregg Δ seeking relief for
Gregg’s Δ breach of contract, after Gregg Δ represented
to Head & Seemann П in writing that she wished to buy a
home from them, that she had equity in another home,
and that she would pay this amount to Head & Seemann
П after selling the other home.
2. R: The election-of-remedies doctrine is an equitable
principle barring one from maintaining inconsistent
theories of relief, and its underlying purpose is to prevent
double recovery for the same wrong.
ii.Altom v. Hawes
1. F: Altom П brought a replevin action against Hawes Δ to
recover certain household furniture which her ex-husband
sold to Hawes Δ in violation of a separation agreement.
2. R: The bringing of a suit for one remedy is a manifestation
of a choice of that remedy but it does not preclude the
plaintiff from seeking another remedy instead if he has
reasonable grounds for so doing and the defendant has
not so altered his position as to make it unjust to permit
the change.
VI. INTERLOCUTORY INJUNCTIONS
a. Substantive Requirements
i. Ride the Ducks of Philadelphia, LLC v. Duck Boat Tours, Inc. **
ii.Cassim v. Bowen
1. F: Cassim П sued Bowen Δ, the Secretary of Health and
Human Services, requesting a preliminary injunction, after
Bowen Δ decided to suspend Cassim П, a Medicare
participating physician from the Medicare program.
2. R: When a Medicare physician performs unnecessary
surgeries, the government’s interests in stopping such
surgeries are more compelling than the physician’s
interests in his professional career.
b. Procedural Requirements
i. Sims v. Greene
1. F: Sims П sued Greene Δ and asked the court for a TRO
against him because Greene Δ was trying to usurp Sims’
П professional duties as the legitimate bishop of the First
Episcopal District of the African Methodist Episcopal
Church.
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2. R: A preliminary injunction cannot be maintained unless


the court issuing it sets out findings of fact and
conclusions of law which constitute the grounds for its
action as required by Fed. R. Civ. P. 52(a).
VII. CONTEMPT
a. Criminal Contempt
i. Walker v. City of Birmingham
1. F: Walker П, a member of a civil rights organization, was
held in contempt for violating an injunction prohibiting his
organization from parading without first obtaining a
permit as required by a Birmingham City Δ ordinance.
2. R: A party, validly enjoined, may not resort to self-help
and violate the injunction but must seek a dissolution or
modification of the injunction by proper judicial review.
ii.In re Stewart
1. F: Stewart Δ was found guilty of contempt after he
allegedly demoted one of his employees who had served
on a jury. Stewart Δ failed to reinstate the employee after
being ordered to do so by a judge.
2. R: due process requires that one charged with contempt
of court be advised of the charges against him, have a
reasonable opportunity to meet them by way of defense
or explanation, have the right to be represented by
counsel, and have a chance to testify and call other
witnesses in his behalf.
iii.Ex Parte Daniels
1. F: Daniels П, while appearing before a judge pro se,
became involved in an argument with the judge,
assaulted the master of the court and was adjudged to be
in criminal contempt. She brought a habeas corpus action
alleging that she was denied due process because she
was denied counsel during the contempt proceedings.
2. R: In cases of direct contempt and where the judge has
personal knowledge of the behavior constituting
contempt, the court is allowed to conduct a summary
proceeding in which the contemnor is not accorded notice
of a hearing.
iv.Matter of Contempt of Greenberg
1. F: Greenberg Δ appealed from a conviction of criminal
contempt after he allegedly shouted at the judge and
disrupted the court during the trial of one of Greenberg’s
Δ clients.
2. R: Under Fed. R. Crim. P. 42(a), criminal contempt may be
punished summarily if the judge certifies that he or she
saw or heard the conduct constituting the contempt and
that it was committed in the actual presence of the court.
v.United States v. United mine Workers of America
1. F: the United Mine Workers of America Δ was found guilty
of civil and criminal contempt after the UMW Δ went on
strike during a national emergency. The UMW Δ appealed.
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2. R: An order issued by a district court with jurisdiction over


the subject matter and person must be obeyed by the
parties until it is reversed by orderly and proper
proceedings.
b. Civil Contempt and Coercive Civil Contempt
i. Time—Share Systems, Inc. v. Schmidt
1. F: Schmidt Δ was found in contempt of a court order not
to delete any data prior to a file save was to be performed
by Time-Share Inc. П during litigation over rights to
ownership of computer software.
2. R: The trial court has inherently broad discretion to hold
an individual in contempt when the contemnor has acted
contumaciously, in bad faith and out of disrespect for the
judicial process.
ii.United States v. Darwin Construction Co.
1. F: Darwin Construction Co. Δ brought a motion to set
aside or reduce the fine that was levied against it for civil
contempt after Darwin Δ failed to comply with an IRS П
summons to produce documents.
2. R: Substantial compliance to a court order is found where
all reasonable steps have been taken to ensure
compliance, and inadvertent omissions are excused only
if such steps were taken.
iii.United Mine Workers v. Bagwell
1. F: United Mine Workers Δ violated a trial court injunction
several times and incurred substantial fines, which it
challenged as criminal rather than civil sanctions.
2. R: Civil contempt sanctions, if they are substantially
serious, must be either coercive or compensatory.
iv.LaTrobe Steel Co. v. United Steelworkers of America
1. LaTrobe Steel Co. П obtained an injunction against the
United Steel Workers of America Δ prohibiting the Union
Δ and its members from engaging in any work stoppage
in sympathy for another strike. The order was violated
and the Union Δ was held in civil contempt.
2. R: A civil contempt decree, whether coercive or
compensatory, which is based on a violation of an
injunction, does not survive the invalidation of the
underlying injunction.
v.Pro—Choice Network v. Walker
1. F: Behn Δ and Rainero Δ appealed fines of $10,000 each
for violating a TRO enjoining them from conducting any
blockade of Pro-Choice Network’s П health-care facility.
2. R: A party to a pending proceeding may not appeal from
an order of civil contempt except as part of an appeal
from a final judgment.
VIII. SPECIAL ISSUES IN EQUITY
a. Statutory Limitations on Discretion
i. Tennessee Valley Authority v. Hill
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1. F: Hill П, US Secretary of the Interior, brought an action to


enjoin the Tennessee Valley Authority Δ from operating a
dam across the Little Tennessee River, as the creation of
a reservoir that would occur when the dam was operated
would cause the extinction of a species of fish in violation
of the Endangered Species Act.
2. R: The Endangered Species Act commands all federal
agencies to insure that actions authorized, funded or
carried out by them do not jeopardize the continued
existence of an endangered species.
b. Enjoining Speech or Litigation
i. Willing v. Mazzocone
1. F: Mazzocone et al. П filed an action in equity to enjoin
Willing Δ from demonstrating on a pedestrian pathway in
downtown Philadelphia and declaring, while doing so, that
Mazzacone et al. П, who were at one time employed as
Willing’s Δ attorneys, had stolen money from her.
2. R: Equity will not enjoin defamation, and an applicant’s
indigence is irrelevant to the consideration of whether
that person’s remedy at law is adequate.
ii.Mabe v. City of Galveston
1. F:The City of Galveston and Park Board of Trustees П
brought an action for injunctive relief against Mabe Δ to
prohibit Mabe Δ from distributing pamphlets to the public
listing the names and phone numbers of certain members
of the Galveston City Council П and Park Board П.
2. R: Any system of prior restraints bears a heavy
presumption against its constitutional validity and
although in exceptional cases prior restraints may be
constitutionally permissible, prior restraint against
distribution of pamphlets is particularly suspect.
iii.Pavilonis v. King
1. F: Pavilonis П appealed from the dismissal of two civil
rights actions she had filed after a district judge dismissed
Pavilonis’s П suits for being hopelessly vague and
frivolous and enjoined her from filing any lawsuit in
district court without authorization by a district judge.
2. R: Where numerous, unsupported actions are filed against
a defendant, the court has equitable and supervisory
power to protect the defendant from harassment and the
court itself from the burden of processing frivolous
papers.
iv.Norcisa v. Board of Selectmen of Provincetown
1. F: Norcisa П claimed that her prosecution by the Town Δ
for violation of the Transient Vendor Statute was
unconstitutional.
2. R: Equity will enjoin a criminal prosecution only when such
an injunction is necessary to avoid the material violation
of a substantial right of the plaintiff, when it is determined
that there is no adequate remedy at law, and that
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injunctive relief can be practically imposed without unduly


burdening the criminal process.
c. Enjoining Crimes and Nuisances
i. Enjoining Nuisances
1. Harrison v. Indiana Auto Shredders Co.
a. F: Indiana Auto Shredders Co. Δ operated a
shredding plant for the recycling of autos, and
Harrison П brought suit to permanently enjoin the
operation and for damages alleging nuisance from
pollution.
b. R: A permanent injunction will not lie in a pollution
nuisance case unless either the polluter seriously
threatens public health or causes substantial
nonhealth injuries where the business cannot be
operated to avoid them.
2. Spur Industries, Inc. v. Del E. Webb Development Co.
a. F: Spur Industries Inc. Δ operated a feedlot. It
became a nuisance after Del E. Webb’s П
development expanded in its Δ direction.
b. R: Where a developer brings people to a
preexisting business which thereby becomes a
nuisance that is enjoined, the developer must
indemnity the nuisance operator for his loss.
ii.Enjoining Crimes
1. Meyer v. Seifert
a. F: Meyer П filed a bill in equity for a mandatory
injunction to require the removal of a non-fireproof
building erected by Seifert Δ within a fire zone in
which the erection of such buildings was prohibited
by city ordinances.
b. R: An injunction will issue against a criminal act if
the legal remedy for the crime is inadequate and
the crime causes interference with property or
other equitably protectable interests in the plaintiff.
2. People v. Lim
a. F: Lim Δ, who reportedly ran a gambling house,
contended that the State П could not bring an
action to enjoin the gambling house’s operation as
a public nuisance because gambling was not
considered a public nuisance under the California
Civil Code.
b. R: The courts may not vest within themselves the
power to declare the repetition of criminal acts a
public nuisance.
IX. CONTRACT DAMAGES
a. Introduction
i. Eastlake Construction Co. v. Hess
1. F: Eastlake Construction Company П brought an action to
recover monies allegedly owing on a construction contract
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with Hess Δ, and Hess Δ counterclaimed, alleging


damages for breach of contract.
2. R: The general measure of damages for breach of
contract is that the injured party is entitled to recovery of
all damages that accrue naturally from the breach and to
be put into as good a pecuniary position as he would have
if the contract had been performed.
ii.Gruber v. S-M News Company
1. F:Gruber П, a greeting card manufacturer, contracted with
S-M News Company Δ to exclusively sell 90,000 sets of
Christmas cards in a design which had been approved by
S-M Δ and sued S-M Δ for breach of contract after S-M Δ
refused performance.
2. R: If full performance by a defendant would have resulted
in a loss to a plaintiff, then this loss must be deducted
from plaintiff’s expenditures.
iii.Campbell v. Tennessee Valley Authority
1. F: Campbell П entered into an unenforceable contract
with the Tennessee Valley Authority Δ and then sought
reimbursement in quasi-contract when payment was
refused.
2. R: The measure of damages in quasi-contract on a
quantum meruit theory of recovery is the fair market
value of the benefit conferred on the defendant.
b. Liquidated Damages
i. Boyle v. Petrie Store Corporation
1. F: Boyle П, who had been fired from his position as CEO of
Petrie Stores Corp. Δ after only 2 months on the job,
sought to enforce the liquidated damages clause in his
employment contract.
2. R: So long as a liquidated damages provision is neither
unconscionable nor contrary to public policy, it will be
enforced as written.
ii.Truck Rent-A-Center, Inc. v. Puritan Farms 2nd Inc.
1. Puritan Δ broke a lease agreement to rent milk trucks
from Truck Rent-A-Center П.
2. R: A liquidated damages clause in a contract will be
sustained if the amount bears a reasonable proportion to
the probable loss and if the actual loss is difficult to
determine.
iii.Lake River Corporation v. Carborundum co.
1. F: Carborundum Co. Δ failed to ship the minimum quantity
of its product in breach of its requirements contract with
Lake River Corp. П.
2. R: A minimum-guarantee clause in a requirements
contract is unenforceable as a penalty when it is
unreasonable and disproportional to actual damages.
c. Land Sales Contracts
i. Uzan v. 845 UN Limited Partnership **
ii.Donovan v. Bachstadt
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1. F: The Donovans П sued for both compensatory and


punitive damages when a defect in title prevented
Bachstadt Δ from performing under the contract he had
signed to sell them a particular piece of realty.
2. R: A buyer can recover benefit of the bargain damages
when the seller breaches an executory contract to convey
real property.
X. TORT DAMAGES
a. Harm to Personal Property
i. Hewlett v. Barge Bertie
1. F: Hewlett П was awarded nominal damages after his
barge was denied by Barge Bertie Δ.
2. R: A plaintiff is entitled to the cost of repairs of damaged
property up to the property’s market value at the time of
the casualty.
ii.Roxas v. Marcos
1. F: Former Philippine President Marcos Δ appealed from
the judgment for Roxas П, and Roxas П cross-appealed on
the proper measure of damages for conversion by Marcos
Δ of buried World War II gold treasure discovered by
Roxas П.
2. R: The measure of damages in a conversion case, where
the converted property fluctuates in value, is the highest
value of the property between the time of conversion and
the reasonable time after the person learns of such
conversion.
iii.Lane v. Oil Delivery, Inc.
1. F: Mr. and Mrs. Lane’s П house, jewelry, clothes, and
furniture were destroyed by a fire that was caused by Oil
Delivery, Inc.’s Δ negligence.
2. R: If personal property is destroyed through the
defendant’s negligence, and its market value cannot be
determined, then the measure of damages is its actual or
intrinsic value to the owner, excluding sentimental or
fanciful value.
iv.Carbasho v. Musulin **
v.Long v. McAllister
1. F: Long’s П automobile was damaged when McAllister’s Δ
vehicle rolled down an incline and struck it.
2. R: If a motor vehicle is totally destroyed or the reasonable
cost of replacement exceeds the market value of the
vehicle after the injury, the measure of damages is the
lost market value plus the reasonable use value of the
vehicle for the period of obtaining a replacement.
b. Harm to Real Property
i. Miller v. Cudahy Co.
1. F: Cudahy’s Δ salt mining operations resulted in Miller’s П
inability to irrigate his farm.
2. R: The measure of damages for a temporary injury is the
reasonable cost of repairing the property.
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ii.Roman Catholic Church of the Archdiocese of New Orleans v.


Louisiana Gas Serv. Co.
1. F: The Roman Catholic Church of the Archdiocese of New
Orleans П appealed an award which did not fully
compensate them for the cost of restoring a building that
they owned which was damaged in a fire caused by
Louisiana Gas Service Company Δ.
2. R: When a person sustains property damage due to the
fault of another, he is entitled to recover damages,
including the cost of restoration that has been or may be
reasonably incurred, or, at his election, the difference
between the value of the property before and after the
harm. If, however, the cost of restoring the property in its
original condition is disproportionate to the value of the
property or economically wasteful, unless there is a
reason personal to the owner for restoring the original
condition or there is reason to believe that the plaintiff
will, in fact, make the repairs, damages are measured
only by the difference between the value of the property
before and after the harm.
iii.Laube v. Thomas
1. F: After Laube П contracted to buy Thomas’ Δ farm,
Thomas Δ cut down and removed one hundred walnut
trees that, according to the terms of the sale, were
reserved for Laube П.
2. R: The proper measure of damages for the wrongful
destruction of trees that have no special use is the
commercial market value of the trees at the time of
taking.
iv.Kroulik v. Knuppel
1. F: Knuppel Δ removed gravel from land Kroulik П obtained
by adverse possession.
2. R: The proper measure of damages for the appropriation
of minerals by a nonwillful trespasser is the value of
minerals in place.
v.Commonwealth of Puerto Rico v. The SS Zoe Colocotroni **
c. Personal Injury Damages
i. Frankel v. United States
1. F: Frankel П, guardian of Marilyn Heym, brought suit to
recover for Marilyn’s injuries suffered in an auto accident
concurrently caused by an employee of the United States
Δ which left her permanently mentally incapacitated.
2. R: The negligence of one parent does not bar recovery by
the other parent for the loss of services of their child or
for medical expenses incurred in caring for him.
ii.Wilburn v. Maritrans GP Inc.
1. F: Wilburn П sued to recover for damages he sustained
when a huge wave hit the ship on which he was working
and swept him overboard during a storm.
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2. R: A plaintiff may recover compensatory damages for loss


of future earning capacity if he produces competent
evidence suggesting that his injuries have narrowed the
range of economic opportunities available to him. The
evidence, however, must be sufficient to support an
award of damages.
iii.Healy v. White
1. F: The father of seven-year-old Healy П was awarded
damages for future medical and education expenses to be
incurred because of a car accident caused by White Δ.
2. R: A damage award for future expenses is valid if
supported by sufficient evidence.
iv.Debus v. Grand Union Stores of Vermont
1. F: Debus П sued Grand Union Stores of Vermont Δ when a
pallet of boxes full of cans of pet food fell on top of her.
2. R: Per diem damage arguments to the jury are allowed
and are not overly prejudicial if they are made under the
ordinary supervision and control of the trial court.
v.White Construction Co. v. Dupont
1. F: After Mrs. Dupont’s П husband suffered permanent
disability from being run over by a loader, Mrs. Dupont П
was awarded $1,026,000 in damages for loss of
consortium.
2. R: A wife in a loss of consortium action may not recover
damages for the tangible loss of support or savings which
the husband might recover in his own right.
d. Damages for Inquiries Resulting in Death
i. Moragne v. States Marine Lines, Inc.
1. F: After Moragne, a longshoreman, was killed while
working aboard a vessel, his wife Moragne П, filed a
wrongful death action against States Marine Lines, Inc. Δ
the vessel’s owner.
2. R: An action lies under general maritime law for death
caused by violation of maritime duties.
XI. LIMITATIONS ON COMPENSATORY DAMAGES
a. Foreseeability
i. Redgrave v. Boston Symphony Orchestra
1. F: After protests arose over Vanessa Redgraves support of
the Palestine Liberation Organization, the Boston
Symphony Orchestra canceled her scheduled
performance at the BSO.
2. R: A professional performer may receive consequential
damages if she proves with sufficient evidence that a
breach of contract proximately caused the loss of
identifiable professional opportunities.
ii.Sprang Industries, Inc. v. The Aetna Casualty and Surety Co.
1. F: When Torrington Construction Co.’s bid was accepted
for the construction of a highway, it subcontracted with
Sprang П for the delivery of steel for its construction
needs. Sprang’s П subcontractor delayed in unloading the
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steel, forcing Torrington to perform the work itself.


Torrington sued for damages caused by Sprang’s П delay
in performance.
iii.Evra Corp. v. Swiss Bank Corp.
1. F: Evra П sued Swiss Bank Δ for consequential damages
caused by the Bank’s Δ failure to electronically transfer
funds upon Evra’s П request.
2. R: A party may not recover consequential damages when
such were consequences of the defendant’s negligence
which were avoidable by the plaintiff.
b. Certainty
i. Cannon v. Yankee products Co., Inc.**
ii.Youst v. Longo**
c. Avoidable Consequences
i. Rockingham County v. Luten Bridge Co.
1. F: Shortly after awarding Lutten П a contract to construct
a bridge, the County Δ canceled the contract.
2. R: After an absolute repudiation or refusal to perform a
contract by one party to a contract, the other party
cannot continue to perform and recover damages based
on full performance.
ii.Parker v. Twentieth Century-Fox Film Corporation
1. F: After Twentieth Century-Fox Δ failed to honor its
agreement to Parker П to star her in a locally produced
musical, it offered her a starring role under essentially the
same terms in a “western” to be filmed in Australia.
2. R: Where an employer offers different or inferior
substitute employment to a wrongfully discharged
employee, the employee retains the right to reject the
offer without having the possible earnings of the offered
substitute employment charged against him in mitigation
charges.
iii.Garcia v. Wal-Mart Stores Inc.
1. F: Garcia П sued Wal-Mart Δ for injuries she sustained
after being knocked over by a cart, and Wal-Mart Δ
appealed based on the district court’s failure to include
language on mitigation of damages in instructions to the
jury.
2. R: Mitigation of damage instructions do not need to be
given when a plaintiff cannot afford the recommended
treatment which would have mitigated the damages or
when it would not have been reasonable for the plaintiff
to employ another to do her job in an attempt to mitigate
economic damages.
iv.Lobermeier v. General Telephone Company of Wisconsin
1. F: Lobermeier П sustained a ruptured eardrum while
talking on GTE’s Δ telephone as a result of a lightning-
induced electrical charge.
2. An injured party is obligated to exercise that care usually
exercised by a person of ordinary intelligence and
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prudence, under the same or similar circumstances, when


deciding to seek or to forego medical treatment.
d. Collateral Source Rule
i. Helfend v. Southern California Rapid Transit Dist.
1. F: Helfend П claimed damages for personal injuries
suffered in the collision of an RTD Δ bus with his auto.
2. R: If an injured party receives some compensation for his
injuries from a source wholly independent of the
tortfeasor, such payment should not be deducted from
the damages which he would otherwise collect from the
tortfeasor.
ii.Hueper v. Goodrich
1. F: Hueper П sued Goodrich Δ to recover medical expenses
gratuitously rendered to his minor son, who injured in a
car accident.
2. R: the collateral source rule is applicable to derivative
claims of parents for gratuitous medical services provided
to their minor children.
XII. RESTITUTIONARY REMEDIES
a. The Unjust Enrichment Concept
i. Pyeatte v. Pyeatte
1. F: Mrs. Pyeatte П contended that Mr. Pyeatte Δ was
responsible in restitution for the value of his education,
which was subsidized by her.
2. R: Restitution based on quasi-contract is available if
services were rendered pursuant to an expectation of
compensation therefore.
ii.Cross v. Berg Lumber Co.**
iii.Monarch Accounting Supplies, Inc. v. Prezioso
1. F: Monarch Accounting Supplies Inc. П leased an office
building from Prezioso Δ, who subsequently leased a
portion of the same premises to another party.
2. R: The measure of damages under the doctrine of unjust
enrichment is the net benefit received by the defendant.
b. Benefits Acquired by Agreement or Mistake
i. Alder v. Drudis
1. F: After Alder П invented a three-dimensional motion
picture device known as a polyscope, he contracted with
Drudis П to finance the development of the device.
2. R: The plaintiff seeking restitution may return any
consideration he has received in order to receive
restitution.
ii.Kelner v. 610 Lincoln Road, Inc.
1. F: After 610 Lincoln Road’s Δ jewels were stolen in a
burglary, Kelner П, an attorney, was retained on a
contingency fee basis to recover insurance proceeds for
the jewels.
2. R: An attorney’s recovery is not limited to quantum meruit
where the attorney is employed on a contingency fee
basis and discharged by his client without cause.
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iii.Rosenberg v. Levin
1. F: Rosenberg П contended he could recover in quantum
meruit for his work as Levin’s Δ attorney, as such
recovery was not limited by the amount called for in their
employment contract after Rosenberg П was discharged
without cause.
2. R: An attorney discharged without cause may recover in
quantum meruit only the maximum fee called for in his
contract.
iv.Ward v. Taggart
1. F: A real estate broker falsely purporting to represent a
seller failed to submit a buyer’s offer but instead
purchased the land for himself at a lower price and
immediately resold it at a substantial profit to the buyer.
2. R: By waiving the tort and suing in assumpsit, a defrauded
individual may recover the defrauding individual’s unjust
enrichment in quasi-contract, as well as exemplary
damages where appropriate, as a deterrent.
v.Winslow, Cohu & Stetson, Inc. v. Showronek
1. F: Winslow, Cohu & Stetson, Inc. П brokers, sought to
recover the value of securities which were inadvertently
registered in Showronek’s Δ name and delivered to
Showronek Δ who, through no wrongdoing, sold the
securities and made a substantial profit.
2. R: Under the doctrine of unjust enrichment, a broker is
entitled to a constructive trust of the sale proceeds of
stock mistakenly delivered to a client who innocently sells
the stock, realizing a substantial profit.
c. Waiver of Tort and Suit in Assumpsit
i. H. Russell Taylor’s Fire Prevention Service Inc. v. Coca Cola
Bottling Corp.
1. F: When Coca Cola Bottling Corp. Δ failed to return certain
cylinders owned by Russell Taylor’s Fire Prevention
Service, Inc. П, Taylor П sued Coca Cola Δ for the
cylinders or their value, even though more than three
years had expired since Coca Cola’s Δ failure to return
Taylor’s П property on demand.
2. R: The appropriate statute of limitations for timely filing of
a claim upon an alleged breach of implied contract of sale
is the four-year period set forth in the California
Commercial Code §2725(1).
ii.Felder v. Reeth
1. F: Reeth Δ was sued for the value of various goods for
which he did not pay but counterclaimed, alleging that
Felder П wrongfully took possession of his hydraulic plant,
converted it to his own use, and sold it.
2. R: Where, in a case of conversion, the tort is waived and
the action is treated as a sale, the measure of damages is
the market value of the property upon resale by the
wrongdoer.
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iii.Olwell v. Nye & Nissen Co.


1. F: Nye & Nissen Co. Δ used Olwell’s П egg washing
machine without the owner’s permission or knowledge in
order to make up for a manpower shortage during World
War II.
2. R: If the wrongdoer is consciously tortious in acquiring a
benefit at the expense of the injured party, he is liable for
what the injured has lost and is deprived of any profit he
may have gained.
d. Constructive Trust
i. County of Cook v. Barrett
1. F: Alleging that Barrett Δ, a former client, received bribes
during his tenure as Clerk, the County of Cook П sought
an accounting of the amounts received by Barrett plus a
constructive trust on behalf of county citizens.
2. R: A constructive trust and an accounting are appropriate
equitable remedies to elicit detailed information regarding
alleged bribes received by an elected official and to
recover such funds by a government body that is the
elected official’s employer.
ii.Stauffer v. Stauffer
1. F: When the facts of his adulterous relationship became
known to his wife, Mr. Stauffer П agreed to transfer their
joint property of land and house to Mrs. Stauffer Δ for $1
at the insistence of Mrs. Stauffer Δ.
2. R: Even in the absence of a confidential relationship, a
repentant spouse is entitled to reconveyance of property
through the remedy of a constructive trust where the
other spouse is unjustly enriched because of undue
influence.
iii.Simonds v. Simonds
1. F: Contrary to the terms of the separation agreement,
Frederick Sidmonds failed to maintain a life insurance
policy with his first wife, Mary Sidmonds П as the
beneficiary while Frederick’s second wife Δ and daughter
Δ were innocent beneficiaries of other policies.
2. R: If an insured, upon lapse or cancellation of insurance,
followed by replacement with new insurance, has a
contractual obligation to designate a particular person as
beneficiary, equity will consider the obligee as a
beneficiary and will prevent unjust enrichment of other
innocent beneficiaries through a constructive trust.
iv.Brand v. Lipton
1. F: Brand П sued for the imposition of a constructive trust
upon Jets season tickets as he had Donnenfeld Δ refused
to distribute the tickets as he had promised he would
prior to gaining control over the tickets.
2. R: A motion to dismiss an action for a constructive trust
upon tickets will be denied if a party agrees to act as
constructive trustee, to administer the tickets, and the
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transfer of the tickets was made in reliance on that


promise which was subsequently breached.
e. Equitable Liens
i. Middlebrook v. Lonas
1. F: Middlebrooks П sought imposition of a constructive
trust on the proceeds of a loan she made to the Lonases
Δ, who refused repayment.
2. R: A promise to repay a loan without a present intent to
do so constitutes a fraud and allows for imposition of a
constructive trust.
ii.Robinson v. Robinson
1. F: Ann Robinson П, divorcing Wylie Robinson Δ, asserted
rights in property belonging to Wylie’s Δ parents, Earl Δ
and Alice Δ, on which Ann П and Wylie Δ had made
improvements.
2. R: One permitting another to make improvements on his
property is liable for the value thereof.
XIII. LIMITATIONS ON RESTITUTIONARY REMEDIES
a. Tracing
i. G & M Motor Company v. Thompson
1. F: Thompson Δ embezzled money from G & M П, his
employer, using a portion of these funds to pay premiums
on a life insurance policy, and the trial court imposed a
constructive trust on the insurance proceeds.
2. R: Where a portion of the premiums of a life insurance
policy is paid with wrongfully acquired money, the original
owner of that money is entitled to share proportionately in
the proceeds of the policy.