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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........................................................................................................... 08 Duke of Somerset v. Cookson ................................................................................................10 Butler v. Frontier Telephone Co. ..........................................................................................12 Hadley v. Baxendale.......................................................................................................... ....14 Krauss v. Greenbarg ........................................................................................................ ....16 Virginia Railway v. Armentrout............................................................................................18 In Re Polemis and Furness, Wilthy & Co. ..........................................................................20 Christianson v. Chicago St. Paul, Minneapolis & Omaha Railway....................................22 Hill v. Winsor............................................................................................................... .........23 Palsgraf v. Long Island Railroad.........................................................................................24 Overseas Tankship Ltd. v. Morts Dock & Engineering (Wagon Mound 1)........................CC Overseas Tankship Ltd. v. Miller Steamship Co. (Wagon Mound 2)..................................CC Mauney v. Gulf Refining .....................................................................................................25 Sanford v. Boston Edison Co. .............................................................................................26 Wheelock v. Noonan............................................................................................................2 8 Campbell v. Seaman............................................................................................................ 30

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

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

SoC

Holding/Rule

Action by a married woman with The court held that by claiming a title to the ring, the appellee waived necessity superior possessory rights of a ring for a demand. against a licensed pawnbroker, for replevin and conversion of the diamond - D’s actions to establish title in himself (ie: filed delivery bond, contested suit ring pledged by the wife’s husband to on the merits. claimed protection under the pawnbroker without the wife’s the married woman’s act) showed he consent. 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. 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. 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.

Duke of Somerset v. Cookson - Equity

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.

Hadley v. Baxendale - Breach of Contract (because of the relationship) - Negligence

Patrons, who owned and operated a The court held that the defendant is only mill, brought an action for breach of liable for damages that were reasonably contract and negligence against a (communication of special common carrier of goods, seeking circumstances & in the contemplation consequential damages and loss profits of the parties at the time of execution of for the delay in delivery of a broken the contract) at the time of the contract crank shaft of a steam engine to a repair and arise naturally from breach company while mill was stopped. - Limit damages: damages can’t be too remote - Protect commerce - Encourage bargain contract

understand the statutory signals if they had been given. damages for injuries sustained by the .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. 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.Breach of contract SoC Action brought by a seller of webbing against a buyer to recover the unpaid price of the webbing delivered to the buyer. . .Virginia Statute (p. Virginia Railway v. as the probable result of the breach (foreseeability). 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. at the time the contract was made. The very essence of the promise of a contract to deliver articles is ability to procure or make them. The company’s train allegedly due to failure incompetency which rendered the child to adhere to Virginia Statute requiring incapable of contributory negligence warning signals to be given at within so would have rendered it unable to many feet of a crossing. Greenbarg . it must be a substantial factor in causing the harm. .4/107 Case Krauss v. .Tort (Negligence) Guardian bought a negligence action on One cannot be liable for injuries caused behalf of his “intellegent” infant son by negligent act when that act is not the against a railroad company to recover proximate cause of the injury. Delay resulting from the absence of such ability is not the same kind enumerated in the contract.A party to contract cannot cover damages which he could have avoided by reasonable means. not a cause extraneous to it.The child could not be guilty of infant when struck by the railroad contributory negligence. adding a causation element .For something which is a cause in fact to be a legal cause. . Holding/Rule Court applied the Hadley Test.117): meant to protect cattle.Parents should be responsible for their children. Armentrout . and independent of the engagements and exertions of the parties.

. but never overturned . but if the act would or might probably cause damage.5/107 Case In Re Polemis and Furness. the railroad company’s guards in trying . It’s enough that the injury is the natural and probable consequence of negligence.Is it still good law? My guess is no. The victim. Hill v. it is futile to build the victim’s right upon the basis of a right to someone else. Consequences of negligent act need not be foreseen by defendant.The question of liability is always anterior to the question of the measure of consequences that go with liability. Holding/Rule All that matters is that some damage was the reasonably foreseeable consequence. . It is not necessary that injury in the precise form should have been foreseen. Negligent party is responsible for all of the natural and proximate consequences of the negligence whether or not they are foreseeable. Minneapolis & Omaha Railway . Chicago St.The expected peril does not prevent the defendant from acting carefully.Has been rejected. a railroad company. the fact that the damage it causes is not the exact kind of damage one would expect is immaterial.Tort (Negligence) A railroad employee brought an action against his employer.Adds the “zone of danger” limitation to help a man on the moving train to to duty prevent him from falling. . . Long Island Railroad .If the reasonable person would not foresee that the act would cause some damage. 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. SoC 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. so long as the damage is directly traceable to the negligent act. through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of a bridge. the act is not negligent. Christianson v. Wilthy & Co. though the breach acts through the medium of an expected peril (ie: the exception of fire) . 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. a bystander on a platform.anything that flows in an unbroken sequence form the original negligent act. . Because danger to the victim was not apparent in the guards’ actions it was not negligence on her part. Where there is an act that unreasonably brought a negligence action against the threatens the safety of others the doer is railroad company to recover damages liable for all its proximate for injuries sustained from scales falling consequences. except where they result from the platform during an explosion in injury to one who falls outside the that followed the dropping of an radius of danger (ie: P has no duty to indiscreet package due to negligence of someone outside the zone of danger). to recover damages for personal injuries caused by the alleged negligence of defendant railroad company’s servants.Tort (Negligence) Palsgraf v. brought an action in tort against the owners of a steam-tug to recover damages for personal injuries sustained by the victim. Winsor .Tort (Ct. Paul. and he is liable for damages directly flowing from his breach of his obligation to act carefully.Tort (Negligence) The victim. a bridge worker.

(Wagon Mound 2) . has to be foreseeable before the act. the act must be of such character. but the fire was not. and done in such a situation. that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom. chain broken by her tripping over her own chair) .Tort (Negligence) 2 steamships sue the tanker for money damages when the ships were destroyed in the fire Mauney v. . Miller Steamship Co. Holding/Rule A man must be considered to be responsible for the probable consequences of his act. or extraordinary occurrence although such happening is within the range of possibilities. (Effectually overturns Polemis w/o actually overturning. To demand more of him is too harsh a rule.Tort (Negligence) . improbable.Policy driven decision (?) SoC 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. to demand less is to ignore that civilized order requires the observance of a minimum standard of behavior. .Double foreseeability test: (1)Is the risk in general foreseeable? (2)Were the specific damages foreseeable? .No double foreseeability . Gulf Refining .Differs from Polemis: brings back foreseeability of the individual harmsomething remote is not in the circle . Overseas Tankship Ltd.Directly traceable is not the test according to this court There is liability if the damage is foreseeable as a real risk occurring in the mind of a reasonable man .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. .Chain of foreseeability stops when there is an intervening act (welding) . contending that the fire was the proximate cause of her miscarriage. Morts Dock & Engineering (Wagon Mound 1) .Mess around dock was foreseeable.Causal chain of events between negligence and injury cannot be broken (here. v.) .No contributory negligence. v. but the actor is not bound to a prevision or anticipation which would include an unusual.Do not look at the harm first and then go back and find the cause. but can argue foreseeability In order that a person who does a particular act which results in injury to another shall be liable therefor.6/107 Case Overseas Tankship Ltd.

and the damage to the one causing the nuisance will be large in case he be restrained. Wheelock v. Seaman .Anti-injunction statute: An injunction is preventive relief not affirmative relief.Policy Driven decision SoC A labor union filed an action against a company for breach of contract. the statute doesn’t apply. and a multiplicity of suits at law was involved in the legal remedy. either with several different parties or in the form of repeated actions against the D. can make no difference as it respects the adequacy of the legal remedy. or hurt to his neighbor. A court of equity will act in such cases only after the plaintiff’s right has been established at law. If he make unreasonable use of his land so as to produce material annoyance.Injunction The owner of a certain lot brought suit against a stranger whom he’d given license to use his property for trespass. for specific performance of the contract.Where the damage to one complaining of a nuisance is small or trifling.7/107 Case Sanford v. (Specific performance is affirmative. seeking an injunction against the employer to prevent him from refusing to recognize the assignments of the contract. therefore. Campbell v. yet they will interfere under peculiar circumstances. Holding/Rule . and for an execution for the amount due. he will be guilty of a nuisance to his neighbor and the law will hold him responsible for the consequent damage. . and have often done so where the trespass was a continuing one. . In cases of intrusion where no consent had been given for the entry of the intruder. seeking an injunction. . . the courts will sometimes deny an injunction. inconvenience. Boston Edison Co. not injunctive relief) While ordinarily courts of equity will not wield their power merely to redress a trespass. . 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.Damages are not adequate if full compensation resulting harm will involve the P in multiple litigation. or became one after a revocation of the license. but whether the trespass was such from the beginning. Noonan .Equitable relief (Injunction/specific performance) . discomfort.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.Every person is bound to make reasonable use of his property so as not to unnecessarily damage or annoy his neighbor.

Injunction SoC Holding/Rule A development company sued a The operation of a business that neighboring feeding operation to enjoin becomes a nuisance by reason of a the feeding operation from operating a nearby residential area may be enjoined. Land owners sue a neighboring cement plant operator for injunction and damages. to follow the rule literally in this case would be to close down the plant at once. However.Injunction . Boomer v. 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. E. to indemnify those who are forced to leave as a result. cattle feedlot near the developing town.Having shown a special injury in the north wind over the southern portion of loss of sales the development company the company’s new development. . being blown by the prevailing south to . Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. Atlantic Cement Co. has a standing to bring suit to enjoin the nuisance. Del. To avoid that immediately drastic remedy. smoke and vibration emanating from the plant. 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. but the party seeking the injunction alleging that the feeding operation was must indemnify the defendant for a a public nuisance because of the flies reasonable cost of moving or shutting and the odor which were drifting or down. .Policy driven: protecting the cement plants. Webb Development Co. v.8/107 Case Spur Industries. . . alleging injury to property from dirt. it seems fair to both sides to grant permanent damages to plaintiffs. Inc.It does not seem harsh to require a developer.

whether by pleading or proof ought to waive a demand.. Doctrinal Reasons: A waiver may result from the character of defense made to the action. Defendant answered in general denial. and given that a married woman is authorized to hold property as if she were unmarried? Result on Appeal: Reversed Holding: Yes. 47.9/107 • • • • Citation: Butler v. Statement of Facts: The wife inherited said ring from her mother. Plaintiff waived entitlement to judgment on the pleadings and went to trial. Ring owner appeals the denial of the motion for new trial. acquire. (Dicta) A married woman may have property interests and if so those interests cannot be taken away without due process of law.. the less democracy there might be. She is currently married though she and her husband are separated and she does not know his whereabouts. Constitutional considerations: No person shall be deprived of property without due process of law. 221 Ind. and hold personal property.E.. Trial court denied motion. D’s actions to establish title in himself showed that he would not have complied with a demand. for replevin and conversion of the diamond ring pledged by the wife’s husband to the pawnbroker without the wife’s consent. by contesting the suit on its merits. Any affirmative action on the part of the defendant calculated to establish title in himself.2d 243 (Ind. Procedure: Plaintiff filed complaint on 2 counts of replevin and 1 count of conversion. 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. 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... and given that a married woman is authorized to hold property as if she were unmarried. Inc. Class Notes Constitutionality of Statute . Trial court entered judgment for the pawnshop. Statement of the Case: Action by a married woman with superior possessory rights of a ring against a licensed pawnbroker. Wolf Sussman.Courts don’t like to judge constitutionality of statutes because it’s antidemocratic. The more constitutionalism there is. . 46 N. and by claiming protection of the Pawnbrokers Act. 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. Plaintiff moved for a new trial. and by claiming protection of the Pawnbrokers Act. by contesting the suit on its merits. 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. 1943). 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.

On its face .After finding this. .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 . --> Butler had a vested interest in the property before the pawnbroker’s act was passed.As applied .The court found that the statute was unconstitutional as applied in the present case .10/107 . Procedural.Pawnbrokers Act retroactively changed the vested interest in Property.Due Process: Substantive. .Standard of finding a statute unconstitutional . why not just enter final judgment instead of remanding the case? --> Not enough evidence to prove the factual basis of the case. .

Limitation of means: you’re not always going to get what you want. 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.must prove that item was unlawfully detained . undefaced.pay damages or return it . (3) one of a kind item can’t be compensated for fully in monetary damages. (2)justice (ideal result vs. Doctrinal rationale: Only the intrinsic value of the item can be recovered in trover.Equitable remedy: (1)force ppl to do things otherwise be held in contempt.legal remedies and these remedies are adequate . who had notice of the owner’s claim to the piece. a goldsmith. (2)questions of legitimacy . Objective value (Subjective: sentimental attachment & Objective: one of a kind item. (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. (4)Likelihood that the item will be defaced . limitation of means). Procedure: The owner brought a bill in equity. remarkable for a Greek inscription and dedication to Hercules by way of treasure trove. Cookson. . 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. Statement of facts: The owner came into possession of an old alter piece made of silver.detinue: .Reluctancy to get into equity: (1)oversight. rules a certain way When is equitable remedy suitable? . 24 Eng.“Flood gates” argument --> horrible things will happen if the ct. (4)overseeing enforcement . (3)injunctive relief. Policy rationale: Other causes of action would not have compensated the owner for what was actually important to him.11/107 Case name & citation: Duke of Somerset v. for the delivery of the altar piece. 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. The possessor demurred. (2)Likelihood of return. remarkable for a Greek inscription and dedication to Hercules? Result: Demurrer overruled Holding: (Narrow) Yes. Class Notes Defendant . Rep.). remarkable for a Greek inscription and dedication to Hercules.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 . 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. The owner’s altar piece was taken and sold to the possessor.trover: gives only money damages .item might be defaced before it is returned . a goldsmith.Factors: (1)Subjective vs.

716 (N. 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.requires re-filing Nuisance: interference with the use and enjoyment of one’s property interest .. 79 N. NOTE: all trespasses don’t give rise to an ejectment action. Telephone company removed wire after the complaint was filed. Holding: Broad: An ejectment lies because the owner was deprived of land which includes the surface and the space above.This case set the tone for airspace ownership. Narrow: Yes. 186 N. 1906). . 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. The telephone company appeals. 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. There was no allegation or evidence that the wire was supported by any structure standing in the owner’s lot. 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. Telephone Company took wire down after action was commenced. ejectment). Doctrinal rationale: The ability of the sheriff to deliver possession is a test of the right to maintain an action of ejectment. 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.use of airspace for telephone wires . but before trial.private .Y. Class Notes Question: Who owns the air space and how can they use it? . Procedure: The trial court entered judgment for the owner of the premises and awarded damages in the amount of six cents. The Frontier Tele. Trespass is an invasion in the possessory interest of someone else’s property (Trespass vs.Y. 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. The owner was in possession of the premises at all times mentioned and since. 486. except the part that was occupied by the telephone company during the period specified.public . The telephone company appealed. Co. 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.E.12/107 Case name & citation: Butler v. The appellate court affirmed the lower courts decision by a divided vote.

There must be and interference with the person’s use and enjoyment (personally) for nuisance Which is preferred nuisance. trespass.Continuing trespass may become a nuisance .13/107 .Nuisance vs. trespass . ejectment? .

erred in giving the jury general directions. Holding: (1) Yes. or such as may reasonably be supposed to have been in the contemplation of both parties. the ct. 156 Eng. the ct. Issues: (1) Did the ct. causing the delivery of the repaired shaft to be delayed at the profit loss of the patron. Doctrinal rationale: Where two parties have made a contract which one of them had broken. Baxendale. 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. 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. based on special facts that certain damages will be incurred. one cannot assume that the common carriers knew or would have reason to know that shaft was broken (?) Foreseeability: even if the carriers did not know. err in failing to instruct the jury not to use lost profits when estimating damages? Result on appeal: Reversed and remanded. 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. if they could reasonably foresee. Policy rationale: (1)Protect Commerce. damages beyond the amount to be paid into court. at the time they made the contract as the probable result of the breach of it. The carriers moved for a new trial. Procedure: The patron filed a complaint claiming breach of contracts and negligence. . The carriers appealed. (2)Encourage bargain contract Class Notes Consignment: 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. err in giving the jury general directions. 145 (Ex. 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. (2) Yes. erred in failing to instruct the jury not to use lost profits when estimating damages. Rep. contesting the jury instructions. The carriers negligently did not deliver the broken shaft until a week later. The patron filed suit.14/107 Case name & citation: Hadley v. 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. The appellate court found instructions to be adequate and affirmed the jury award. The common carriers pleaded non assumpserunt to the breach of contract claim. 1854). 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. 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.

because if he did.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? . he would have charged more. one can argue that the defendant did not agree to the consequences of the special circumstances.Even if P communicated the circumstances he said he had.15/107 . .

. d. 1943). Statement of facts: The manufacturer received an award and contract from the War department of the U. 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. cause of the overall company’s delay was the supplier’s failure to deliver on time. b. Procedure: Suppliers filed complaint against manufacturers. No. No. No. Manufacturers counterclaimed to recover damages for breaching contract by failing to deliver goods on schedule. Greenbarg. 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.S.2d 569 (3d Cir.. 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: Affirmed Holding: a. then the loss was chargeable to it? d. to supply leggings. Issues: a. the trial court did not err by instructing the jury that although there may have been other contributing causes. c. 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. as the probable result of the breach.. The jury at trial returned a verdict in favor for the manufacturer for the counterclaim. b. The manufacturer agreed to The court entered judgment for the manufacturer and awarded damages. Doctrinal rationale: a. at the time the contract was made. cause of the overall company’s delay was the supplier’s failure to deliver on time. if the “primary”. By memorandum of the same date the manufacturers placed an order with the supplier for the webbing to be used in making leggings. 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. Applicable law (?) c.16/107 Case name & citation: Krauss v. Manufacturers counterclaimed. then the loss was chargeable to it. if the “primary”. 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. 137 F. Applicable law . The order provided for certain quantities of webbing to be delivered at given dates. Statement of the case: Suppliers sued manufacturers to recover damages for the price of goods delivered.. Did the trial court err by instructing the jury that although there may have been other contributing causes.

The very essence of the promise of a contract to deliver articles is ability to procure or make them.All a person has to do is understand the consequences.? .17/107 c. d.Foreseeability . for ext.Extension clause: Why not req. supplier didn’t ask for this instruction at trial and made assurances to the manufacturer.Defendant asked for primary cause test . 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.Is what happened what generally happens in the usual course of events . 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.Supplier’s argument: . The manufacturer’s contract was to provide leggings for the soldiers. the manufacturer to ask the Gov.Questions: . It would have no sense or incentive otherwise.Sole (highest std).Even if I knew about it I have to agree to be responsible for the damages .It is the responsibility of the non-breaching party to mitigate damages. The special circumstances surrounding such a contract should be commonly known to the suppliers.Is what happened a special circumstance . Class Notes: Issues . .Ct held: should apply substantial factor test . however. A party to contract cannot cover damages which he could have avoided by reasonable means. Manufacturer should have tried to mitigate .is not a cause extraneous to it and independent of the engagements and exertions of the parties.Cause in fact . not agree to the consequences to be held liable for damages from breach . or substantial factor (lowest std) in the injury .Is it enough to tell someone about a special circumstance or is it necessary to explain the amount of damages at stake. primary (intermediate std). and a delay resulting from the absence of such ability is not the same kind enumerated in the contract. Rule: Applies Hadley .Part of the question is whether or not supplier could foresee that manufacturer could not mitigate his damages. For something which is a cause in fact to be a legal cause.Court held: .

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. 1946). but whether the engineer used reasonable and ordinary care under the operating condition then and there existing. undetected. All the witnesses agreed that the engine made a loud noise as it approached. The railroad company appeals. In the first trial. (3) Yes. which could be heard a long way off. but whether the engineer used reasonable and ordinary care under the operating condition then and there existing. losing his left arm above the elbow and his right arm above the wrist. The infant was a very intelligent child. to a railroad track 289 feet away. A number of witnesses testified that no signals of any kind were given. 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. 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. The trial court entered judgment for the guardian and awarded damages. 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. the jury was hung. he was in a crawling position on the track or near the crossing. located on a hill above the railroad track by the side of a public road. to discover the infant on the track and stop the engine before striking him.18/107 Case name & citation: Virginia Railway v. 158 F. There he was run over by a passing engine. 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) Yes.000. The engineer was familiar with the crossing.2d 358 (4th Cir. the jury returned a verdict for the guardian in the sum of $100. 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. to discover . In the second trial. 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. 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 Remanded Holding: (1) Yes. Statement of facts: A 13 month old baby strayed from his parent’s house. Armentrout. When next the baby was seen.

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. (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. 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). 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.19/107 the infant on the track and stop the engine before striking him. but there can be no recovery on the failure to sound the whistle since it was not the proximate cause. . 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 act is not negligent. Policy rationale: The Court will not let people contract out of liability for negligence. ---> Foreseeability . the trial court was correct in awarding damages to the shipowner.20/107 Case name & citation: In Re Polemus and Furness. 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. 560. Class Notes Charterer’s argument: Charterers are not liable for the type of damage which could not reasonably have been anticipated. Statement of facts: The shipowners chartered the steamship to the charterers. Procedure: The shipowners filed their complaint. holding that the charterers were not protected by an exception of fire which in the charter is mutually accepted. 1 hold of the ship consisted of considerable quantity of cases of benzine or petrol that had begun to leak. so long as the damage is directly traceable to the negligent act. The arbitrators found that the fall of the board was caused by the negligence of the charterers’ agents engaged in the work of discharging. 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. but if the act would or might probably cause damage. and he is liable for damages directly flowing from his breach of his obligation to act carefully.. Additional Points: Plaintiffs sue under contract. the full value of the ship. the trial court was correct in awarding damages to the shipowner. defendants argue for Hadley rule (damages are too remote to be liable). a considerable of petrol vapor was in the hold. Thus.165l. and this resulted in the total destruction of the ship.B. The court affirmed the award. The cargo in the No. 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. The charterers appealed. the fact that the damage it causes is not the exact kind of damage one would expect is immaterial. Court of Appeal [1921] 3 K. 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. Withy & Co.. or on shore are always mutually excepted. (2) Yes. Issues: (1) Was the trial court correct in awarding damages to the shipowner. 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. 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. 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. Holding: (1) Yes. The arbitrators awarded that the owners were entitled to recover 196. 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. Doctrinal rationale: (1) The expected peril does not prevent the defendant from acting carefully.

Proximate Cause: Damages must be such as can be reasonably be anticipated as the result of the negligent act. Type of damage.Dropping the board that started the fire (?) .Extent of damage vs. Hadley vs.foreseeability . In other words they must be the natural and probable consequences of the act. Hadley is taught as contract. all damage that directly flows from it is recoverable. .What is the breach of contract in Polemis? .Polemis is taught as tort. Tort: law imposes duty (?) .Whether you call something a tort or a contract does affect the damages ruling.Could you argue that the rule in Polemis is for both contracts and negligence? .21/107 . but could be tort. 2 views of foreseeability . Polemis .naturally arising .special circumstances communicated .In an action for negligence the measure of damage is the same as in an action for breach of contract .Damages not foreseeable in Hadley. Why is this? . Ship-owner’s argument: If the act is negligent.Considerations .Contracts: self-imposed duty. but could be contract.Foreseeable that some harm results from negligent act. . but are damages foreseeable in Polemis? Were damages really not foreseeable in Hadley? .Foreseeable that the breach of the contract will lead to the result which occurred . negligent party is responsible for all the harm that occurs.Failure to return the ship (?) .

. The cars travelled like this until the rear car got within 60 feet of the one in front of it. Statement of the case: An employee brought an action against his employer. agrees with Polemis. At this point when the employee looked back he became dizzy. lost his balance and fell off. Statement of facts: Two hand cars travelled westerly. 640 (1896). The rear car collided with the employee inflicting very severe injuries. not capable of as great speed as the rear. Holding: Yes. The usual distance at which hand cars kept apart was 540 feet. to recover damages for personal injuries caused by the alleged negligence of defendant’s servants. the trial court was correct in denying the employer’s motion for a new trial. Chicago. .. in exercise of ordinary care. was of old style.22/107 Case name & citation: Christianson v. The front car on which the employee rode. Doctrinal rationale: If the act is one which the party ought. 94. a railroad company. Class Notes D’s Argument: Not foreseeable that P would fall off of the car and get run over. 67 Minn. then he is liable for any injury proximately resulting from it. Procedure: District court denied the employer’s motion for a new trial. it would not have been able to stop in less than 100 feet. 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.. 69 N. Result on appeal: Affirmed. to have anticipated was liable to result in injury to others. although he could not have anticipated the particular injury which did happen.W. Issues: Was the trial court correct in denying the employer’s motion for a new trial. Ct rejected D’s Argument because they used foreseeability of harm generally not whether the specific harm was foreseeable to determine liability. Ct. At the speed at which the rear car was going..

It is not necessary that injury in the precise form should have been foreseen. the jury found for the victim. 118 Mass. 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: Affirmed Holding: Yes. Statement of the case: The victim brought an action in tort against the owners of a steamtug to recover damages for personal injuries sustained by the victim. 251 (1875). Winsor. Doctrinal rationale: Consequences of negligent act need not be foreseen by defendant. the trial court was correct in entering the verdict of the jury. . Procedure: At trial.23/107 Case name & citation: Hill v. through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of a bridge. 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. It’s enough that the injury is the natural and probable consequence of negligence. 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.

Polemis is still seen as a torts case and not contract case .Andrews: any harm being foreseeable negligent party is responsible for the harm that occurs as a direct result of the party’s negligent act. Long Island Railroad. “No such thing as negligence in the air. 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.) The package contained fireworks. One hopped aboard while the train was moving. The appellate division of the Supreme Court affirmed the trial court’s judgment for the victim.E. hopped aboard the moving train. its consequences are not confined ti those who might probably be hurt. Two guards tried to help the man on the moving train to prevent him from falling. Holding: Yes. Additional Points: (Dicta) Judge proposes no duty to unforeseeable P. but almost fell.Y.Question of allocating risk.Cardozo: outside the zone of danger . it is futile to build the victim’s right upon the basis of a right to someone else.” (Dissent) Where there is an act that unreasonably threatens the safety of others the doer is liable for all its proximate consequences. Because danger to the victim was not apparent in the guards’ actions it was not negligence on her part. Statement of facts: Two men ran to catch a stopped train. 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. . the other. Unreasonable risk being taken. 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. 248 N. 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. (It was a small package covered with newspaper. The scales struck the victim causing the injuries for which she sues. Doctrinal rationale: The question of liability is always anterior to the question of the measure of consequences that go with liability. Issues: Did the appellate division err in affirming the district court’s judgment in the victim’s favor. In this effort the package fell. Procedure: The trial court entered judgment for the victim. 162 N. but nothing in its appearance gave notice of its contents. 99 (1928). This statement was not limited to those who might be expected to be exposed to danger.24/107 Case name & citation: Palsgraf v. 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? Result on appeal: Reversed and dismissed with costs in all courts. Class Notes . . 339. carrying a package. The fireworks exploded when they fell throwing down some scales at the other end of the platform several feet away. even where they result in injury to one who seems to fall outside the radius of danger. Defendant appeals.

193 Miss. Issues: Was the chancellor correct in dismissing the victim’s bill. subsequently. Holding: Yes. In her hurry to get to the child she fell over a misplaced chair and. or extraordinary occurrence although such happening is within the range of possibilities. but the actor is not bound to a prevision or anticipation which would include an unusual.. she turned to get her child with the intention of fleeing from the cafe that she and her husband operated. and done in such a situation.25/107 Case name & citation: Mauney v. 9 So. . the chancellor was correct in dismissing the victim’s bill. the act must be of such character. 421. When the victim heard these shouts and saw the fire. Class Notes Putting 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. Gulf Refining Co. suffered a miscarriage. improbable. that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom. Procedure: After a full hearing the chancellor dismissed the bill. People ran shouting fire loudly. which rapidly spread to the tank car and to the filling station itself. 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. contending that the fire was the proximate of her misfortune. 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. Doctrinal rationale: In order that a person who does a particular act which results in injury to another shall be liable therefor.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. Statement of facts: While the agent of the oil company was delivering gasoline to a filling station a fire was suddenly started.

and for an execution for the amount due. equity will grant a decree of specific performance. adequate. the statute doesn’t apply. 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. (Specific performance is affirmative. either with several different parties or in the form of repeated actions against the D. 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.26/107 Case name: Sanford v.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 . 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. T.Why would management agree to a check-off provision? . whose assignments contained written requests for the deduction of their union dues from the wages from the wages of the respective assignors. Only by ordering specific performance can the court secure to P the real benefit of their contract. adequate and complete remedy at law? Result on appeal: Reversed. where the damages are not the equivalent of the performance. seeking an injunction against the employer to prevent him from refusing to recognize the assignments of the contract.Specific performance enforces the contract action. Ct. adequate and complete remedy at law. Injunctions are different . complete and adequate remedy at law. Damages are not adequate if full compensation resulting harm will involve the P in multiple litigation. Anti-injunction statute: An injunction is preventive relief not affirmative relief. Statement of the case: A labor union filed an action against a company for breach of contract. 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. Doctrinal rationale: The union will suffer irreparable damage for which it has no plain.” 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. sustained demurrer. for specific performance of the contract. Holding: Yes. There is a growing tendency to give the promisee the actual performance for which he bargained instead of a substitute and damages. 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. 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. Boston Edison Co. therefore. The union had fully performed the contract on its part. Procedure: D demurred to the bill on the grounds that P did not state a cause of action and that they have a plain. not injunctive relief) Class Notes . The company deducted the amounts assigned in accordance with the agreement and forwarded the deductions to the union. and complete remedy.

Court driven by policy: even though the defendant’s argument makes logical sense.27/107 . but it doesn’t work) . .Courts can enforce certain moral standards in relations between people.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. NOTE on Injunctions .Federal judges were criticized for being activists when they granted large scale injunctions relief . it goes against the original purpose of the statute which is to protect the labor unions.

Class Notes . who was a total stranger to the plaintiff. There is no equity in allowing him to strain them beyond their fair and reasonable interpretation. (8)real property vs. (4)public interest. Noonan Statement 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. but whether the trespass was such from the beginning. A court of equity will act in such cases only after the plaintiff’s right has been established at law. seeking an injunction. even though the license may have expended money on the faith of it. Parol license. He exceeds then at his peril. other property. 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. 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. (2)balance of equities. and in the absence and without the knowledge of plaintiff. 1886. (3)Whether plaintiff has “dirty hands” (good faith). Though the defendant promised to do so. However.Injunction: Cost shifting mechanism in this case.Factors for injunction: (1)Likelihood of success on merits. The defendant gave his assurance that he would remove them in the spring. 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. Doctrinal rationale: While ordinarily courts of equity will not wield their power merely to redress a trespass. is revocable at pleasure. or became one after a revocation of the license. and have often done so where the trespass was a continuing one. unless extended by the court. . (7)practicality of framing and enforcing a degree. (6)irreparable harm. can make no difference as it respects the adequacy of the legal remedy. and awarded judgment requiring defendant to remove the rocks before March 15. the defendant covered six of the lots of plaintiff with “huge quantities of rock”. Statement of facts: The defendant. founded upon no consideration.28/107 Case name: Wheelock v. and a multiplicity of suits at law was involved in the legal remedy. during the winter. (5)was defendant willful. however. Holding: No the trial court did not err in granting an injunction holding that there was no adequate remedy at law. 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. 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 did not. discovering the abuse of his permission. In cases of intrusion where no consent had been given for the entry of the intruder. the defendant. complained bitterly of defendant’s conduct and ordered him to remove the rocks to some other locality. and in the face of repeated demands neglected and omitted to remove the rocks from the land. yet they will interfere under peculiar circumstances. if the defendant is judgment proof the injunction may not be enforced . Then in the spring the plaintiff.

29/107 .NOTE: nuisance affects the use and enjoyment of land (legal remedy) .Judges don’t like to issue injunctions because it proposes questions of competence. .is the placement of the rocks a nuisance? .

To constitute a nuisance. and that possible damage to the brick manufacturer is unclear and does not appear to be great? Result on appeal: Affirmed. inconvenience. but only the last 2 days of the process. . Brick manufacturer appeals. (2) Yes. There was another process by which brick could be made that didn’t cause gas to escape. and that possible damage to the brick manufacturer is unclear and does not appear to be great. brick manufacturer was not using his property for brick making. the use must be such to produce a tangible and appreciable injury to neighboring property. 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. The gas did not continually escape during the burning of kiln. or hurt to his neighbor. and was carried into and over plaintiff owner’s land only when the wind was from the South. that an injunction need not destroy the brick manufacturer’s business or interfere materially with the useful and necessary trade of brick making. 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. he will be guilty of a nuisance to his neighbor and the law will hold him responsible for the consequent damage. 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. Holding: (1) Yes. or such as to render its enjoyment specifically uncomfortable or inconvenient. and to an injunction restraining neighboring brick manufacturer from burning brick at the place named by the brick manufacturing process. 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. If he make unreasonable use of his land so as to produce material annoyance. but it was more expensive. Doctrinal rationale: (1) Every person is bound to make reasonable use of his property so as not to unnecessarily damage or annoy his neighbor. When the land owner purchased land. discomfort.30/107 Case name: Campbell v. that an injunction need not destroy the brick manufacturer’s business or interfere materially with the useful and necessary trade of brick making. but did later on. 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. 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. Statement of facts: The brick manufacturer had been manufacturing brick on his own land for 2 years. destroying vegetation on plaintiff owner’s property. 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.

the injury is a recurring one. Case . 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. and subject it to such uses as will best subserve his own private interests. harm to D small.31/107 (2) Where the damage to one complaining of a nuisance is small or trifling. Remedy of law was inadequate. Policy rationale: The cost to D to move his property is not costly. harm to P was great. Additional Points: It is a general rule that every person may exercise exclusive dominion over his property. and the damage to the one causing the nuisance will be large in case he be restrained. and unless the nuisance be restrained the litigation would be interminable. multiplicity of suits. Where an injunction prevents a multiplicity of suits. the courts will sometimes deny an injunction.

v. Having shown a special injury in the loss of sales the development company has a standing to bring suit to enjoin the nuisance. Inc. 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 constitute a public nuisance. the nuisance must affect a considerable number of people or an entire community or neighborhood. 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: Affirmed Holding: (1) Yes. Del. 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.” Issue: (1) Was the trial court correct in enjoining the feedlot where its operation of business is lawful in the first instance. the resulting odor and flies produced an annoying if not unhealthy situation as far as the senior citizens of town were concerned. rodents. Facts: Cattle in a commercial feedlot will produce 35 to 40 pounds of wet manure per day. PB: Trial court ruled in favor of the plaintiff. 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.32/107 Name: Spur Industries. Having brought people to the nuisance to the foreseeable detriment of the defendant. Webb Development Co. or over a million pounds of wet manure wet manure per day for 30.000 head of cattle. (2) It does not seem harsh to require a developer. (2) Yes. Pol R: Protecting the public from disease Add. “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. to indemnify those who are forced to leave as a result. . the plaintiff must indemnify the defendant for a reasonable amount of the cost of moving or shutting down. while a public nuisance is one affecting the rights enjoyed by citizens as a part of the public. mosquitos and other insects which are capable of carrying and transmitting disease-causing organisms to any person or persons. 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. E. and that despite the admittedly good feedlot management and good housekeeping practices by the feeding operation. Statute provides. per head. The feedlot was both a public and a private nuisance. 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. 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. SoC: A development company sued a neighboring feeding operation to enjoin the feeding operation from operating a cattle feedlot near the developing town.

.............................................................................................................. Standard Oil Co........ Lucy................................................. .........4 7 Mackintosh v............................ ...........4 9 Bluemner v..............................53 Varney v...................................33/107 Part II: Legal Argument (Indefiniteness) Case Chart (CC).67 Sun Printing & Publishing Association v......58 Wood v................................................................................. .. Lady Duff Gordon........................... v............................................................... 35 Case Briefs..................................... .... ........................ McCreery................................................60 Oscar Schlegel Manufacturing Co... Manhattan Rubber Manufacturing Co.................................................................. Ditmars....................................................................... ........................................... New York Press Co.................................................................................................................. Remington Paper & Power Co...............62 Oscar Schlegel Manufacturing Co.... Regis Paper Co..46 Mackintosh v....... Wakeman v...........................................45 United Press v.......................................... Peter Cooper’s Glue Factory (II)............................................ Silverstein.... Thompson.....................56 Rubber Trading Co..69 ............................................ Garvin................................ Kimball... Lurie Woolen Co............ ............. . Wheeler & Wilson Manufacturing Co...................... ......................66 St..............64 United States Rubber Co....................... 51 Moran v............... v...................... Hubbs & Hastings Paper Co. v..................................... ................65 Cohen & Sons v........................................................ v.40 Mayer v...................... v...................................................................................... Peter Cooper’s Glue Factory (I).............

New York Press Co. be agreed upon. overrules Wakeman. 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. 1900 in exchange. but was not created by the parties at the Indefinite Terms: Price term time of the agreement (“no more than $300” per Executory K must have week) explicit terms and price is essential element of K. Still in the middle create a fixed price term that K period could have been. . indef terms cannot lmt (4)quantity. (2)price (“lowest direct result o K breach. K operative only so long as the parties agreed on price K is enforced. United Press v. All conditions of the K must be met before the K becomes operative.Parole Evidence: to give meaning to K. D’s position is agreement (ie Agreement to that the price could no longer agree). price FACTS: D paid $300 a week here is subject to future until breach. 1st Unfair to refuse recovery order for 50 filled then D just b/c the amt of loss isn’t refused to fill any more 100% certain. had goods been supplied to D.)) is turned into law in Mackintosh v. (3)territory.No parole evidence to executory. justice would require recovery for the fair value of services (Quantum Meruit) or the fair value of the goods (Quantum V. Speculative terms to be FACTS: P was to be the determined by the jury exclusive agent of D in Mexico if P could sell 50. net gold price”). Kimball With regard to evidence. There is a huge difference between this and Wakeman Maybe Wakeman doesn’t apply in real property treatment (?) Mayer v. Type of contract: Written . Plaintiff brought an action against defendant to recover damages in the amount of $93. 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. orders The K was enforced 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. Contract Type of contract: Oral Executory (for action that had not yet been performed) Evidence & Holding Effect on other cases .000 ($300 a week from January 1. 1894 to January 1. Wheeler & Wilson Manufacturing Co.Expert testimony not permitted. (5)delivery liability for the damages terms. 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. but D is still the prevailing party because only nominal damages were awarded Dicta about enforcement (makes a difference that it is executory K. Indefinite Terms: (1)duration When certain damages are of the K.34/107 Case Name & SoC Wakeman v. .

The contract is not enforced because (1)no def agreement was made. during the completion of two certain buildings in consideration of the agreement. Effect on other cases United Press Dicta affects this case: If this was for breach of an executory agreement. the reasonable value of his services and time spent upon said buildings while working for the employer. alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving. alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving. Type of contract: Oral executed Indefinite Terms: compensation FACTS: P modified conversation with Kimball. 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. which was to pay him in addition to his salary. Is the court confused? United Press dicta now becomes law. now Kimball assured P that his compensation would be satisfactory. the reasonable value of his services and time spent upon said buildings while working for the employer. during the completion of two certain buildings in consideration of the agreement. Where K is too indef to be enforced. whether executed or executory. QM is permitted for value of services but not in this case. . but here the complaint was for a breach of K.35/107 Case Name & SoC Mackintosh v. There maybe an agreement to agree. Contract Type of contract: Oral Executed Indefinite Terms: Compensation FACTS: P’s motion to add an interest in profits was denied. no recovery could be had in QM under United Press. P invokes QM even though his complaint is for breach of K. this is where QM becomes available. The K is not enforced and there is no QM. and (3)P had already recovered salary for his services. since P had existing duty and was not obligated to do anything additional. (2)No consid. which was to pay him in addition to his salary. Evidence & Holding . 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.No Parole Evidence Full intention of the parties must be ascertained by the K alone. Mackintosh v. If the K can’t be enforced and it is executed.

expert testimony could be used to determine mkt value. Cardozo Varney v. 1903 and to recover damages because of the breach of an employment contract under which he was employed. Type of contract: Oral executory K Indefinite Terms: amount of profits .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. Moran v. Where to parties use the word “agreement” mutuality of obligation is implied (Canons of Cardozo) K is enforced Overrules Mackintosh v. 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. “Paint Case” .36/107 Case Name & SoC Bluemner v. Cardozo dissents Contract Type of contract: Oral Executed Indefinite Terms: value of commissions to be divided Evidence & Holding . Standard Oil Co. 1912. it never sends the second to the jury. at $40 per week and for a fair and reasonable percentage of the net profits of the employer’s business from February 1.No Parole evidence. 1911 to January 1. under QM.now looking to intent.says United Press has been misunderstood Intent was present. ct didn’t err in dismissing case. Restates Mackintosh. When terms of K give P a fair share or profit are vague. (2)sched of commissions. 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. 1911 to December 31. Type of contract: Written with oral promises Indefinite Terms: (1)When settlement of loss would be paid. Bluemner. 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.P can’t use his own testimony as evidence for the value of services. Thompson: implied duty on part of D to employ P for 5 yrs Moves away fro United Press . K is not enforced. . 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. Cardozo dissents . respectively. & amt can’t be compared from evidence evidence presented. P can only collect if enough factual evidence K not enforced Effect on other cases Court gets confused between the first and second cause of action.

just who the guarantee covers. NOTE: court implied term according to custom and practice Evidence & Holding . Cardozo Wood v. Follows Moran . Type of contract: written executory Indefinite Terms: amt of goods to be furnished (quantity) . 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.indef term against writer of the K . Lady Duff Gordon An agent sued “a creator of fashions” for damages sustained from her breach of contract.Cardozo looks at custom between parties.Course of dealing (1)When a K is made in good faith. Where one party breaches a K and the other party (here P) fails to give notice that the K is abandoned and continues. (II)Decided w/o Cardozo Contract Type of contract: executory Indefinite Terms: Terms of inspection. v. v. he will be held to the meaning that he had reason to believe that P would reasonably attach to the promise K is enforced. Cardozo Oscar Schlegel Manufacturing Co. alleging that the buyer failed to complete K. Lucy. K is invalid b/c consideration lacking. K is enforced. Different from United Press not looking at scope of damages . quantity term and the buyer wasn’t req. to buy minimum amt of the good. Manhattan Rubber Manufacturing Co. alleging that the contract guaranteed to cover P’s claim against D’s son.37/107 Case Name & SoC Rubber Trading Co. Effect on other cases No previous cases cited 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. A seller brought this action against the buyer to recover the profit lost from a breach of contract. damages can be awarded for the breach. Cardozo Type of contract: written executory Indefinite Terms: which son D is referring to Where the guarantor makes an ambiguous promise. the K contains a mutual obligation and is enforceable D could have protected itself (2)Where requirement K has an indef. 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. uses instinct with obligation from Moran but disregard Moral that the drafter of K being in position to protect himself. Silverstein P sued D for a breach of contract to recover damages for default of payment.

then good faith does not req. St. Remington Paper & Power Co. Option K is enforced. Regis Paper Co. Mayer and Varney . Indefinite Terms: (1)price. An agreement to agree is not binding or an enforceable contract.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.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.38/107 Case Name & SoC Cohen & Sons v. Cardozo Sun Printing & Publishing Association v. (agreement to agere) . for original. This is an action by a buyer against a sell to recover damages resulting from a breach of contract to sell paper. (3)time of and K has an option which is additional supply consid. Where 2 parties enter into K (2)amt. Cardozo Type of contract: written executory Indefinite Terms: (1)price after 3 mos.if K missin terms the ct can substitute reasonable terms eq.Evidence of additional circumstances admissible to determine intent. (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. Cardozo Concurs Contract Type of contract: written option Evidence & Holding Effect on other cases Overrules Varney Ct. . K is not enforced Cohen: if just price left open P might have have an option St. 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. K is somewhat enforced (P wins) P cites United Press. w/ industry stds. D withheld 500 pcs. there is mutuality of obligation to make option enforceable.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 Type of contract: executory Indefinite Terms: (1)price. Hubbs & Hastings Paper Co. . parties to do more than they are expressly bound by K to do and the ct.D exercised right to leave K Mayer: D’s right not affected by motive United Press: D had no duty to accept term . alleging that upon exercise of this privilege. Lurie Woolen Co. (quantity). the K is incomplete and the D is not bound. Policy driven case: to teach the lawyers a lesson so to speak. Canon . v. Regis: an agreement to agree . 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. will not enforce an agreement to agree. 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.

The distributor moved for a new trial. Wheeler & Wilson Manufacturing C. 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. (4) Yes. The manufacturer refused to fill the order and refused to perform. 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. the trial court was correct in excluding expert testimony. The jury rendered a verdict for the distributor. 205.. The court excluded this evidence. 4 N. 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.E. filled. The trial court denied Distributor’s motion for a new trial. 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) . forwarded to Mexico. Holding: Narrow: (1) Yes. 264 (1886). 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. 101 N. the manufacturer established agencies in Mexico. (2) Yes. After that. and paid for. 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. The appellate court affirmed the trial court’s judgment. the trial court erred in excluding evidence that subsequent to its repudiation of its agreement.Y.39/107 Case name & citation: Wakeman v. The distributor appeals. the trial court erred in denying motion for new trial. the distributor sold fifty machines to one Mead of the San Louis Potosi. Subsequently. The order was sent to the manufactures. 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. and set up his own agencies in the localities of Mexico. 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. 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. the distributor’s agent made another sale of fifty machines in another locality and an order for those machines was sent to the manufacturer. repudiated its agreement.

Mayer . costs.Profits? .40/107 (2) All damages resulting necessarily and immediately and directly from the breach are recoverable. Bradley .Taylor v.What are the territorial limits of K? . Time limit. . whereas in the instant case everything is indefinite .What are the obligations on each side of the contract? . 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. (3) Exclude opinions and receive facts. 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.The contract terms are unclear .How long does contract last? . Indefinite Terms: Relevant Price.Who’s an expert? . Policy rationale: All the facts should have been submitted to the jury with proper instructions. Case too indefinite to enforce (?) .Bagley v.Value of K is compensable for breach of K.What is the lowest net gold price? . . Class Notes Agency contract has some value to agent although uncertain.Ct takes the case that D cites and uses it in support of P .Opinion is informal. 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. Quantity. and it should be decided by jury what the value would be. uncertainty that there are remedies. delivery terms.Does Hadley help in this instance? .Used by D’s attorney .Combines Hadley and Polemis .How do you calculate damages in a case like this? . profits The Case Analysis .Cases the ct sites are less indefinite and focuses on profits. (4) The damage caused to the distributors by the total breach of the agreement made by the manufacturer is difficult to estimate.Masterton v. Smith: Uncertainty of what remedies should be vs. .When did the contract take place? There may have been a K after P sold the machines and D supplied them. and not those that are contingent and uncertain.Is there a contract? Is court’s assumption that there is a contract valid .Jury must speculate .

Civil Damage Act .Dennis v.Violation of Statute of Frauds .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.Maj.Expert testimony (?) .K for term of yrs.Simpson v.Ct.How do you determine what net gold price is? .Attacked Pleadings . .natural and proximate and probable result of failure to deliver goods to determine damages .Shell v.Wakeman’s argument . Miller .There are other types of indefinite K that still can get damages . gave awarded and ordered specific performance .How Machine Co. . v.Loss of profits for a specific period .How much the manufacturer’s agencies in Mexico made .How do you determine what profits may have been? . Bryson .Factually closest to this case .Placed toward the end of the opinion and viewed as incorrect (ct.Damages for loss of time and loss of profit .: Measure of damages is the value of time lost as the result of breach .Used by P’s lawyer .no fixed time period so its closer to Wakeman than the previous cases the ct cites .expert testimony on how long certain Ks last.P is entitled to the bare value of his contract . .Didn’t perform K .P should be allowed to submit evidence that will aid in determining profits .Moving away from situation in Wakeman .Wheeler’s argument . accepts P’s lawyer’s argument .Jacques v.How to figure out time terms of contract for damages .Profits that would have been realized but for default are recoverable .Put Wakeman on the stand to say what this price is in the mkt. Plumb .There was no binding K .41/107 .One of his arguments offsets the other . Maxfield .Cites only two cases because he has a title-wave of cases against him On remand .Use the D’s testimony .Ct. London . agrees with dissent) .There are certain terms that should be determined by jury .statistics for life expectancy . .Didn’t plead special damages .

handle Statute of Frauds . .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) . --> Oral K that does not specify that K is to be performed within one yr.Finding of a K and allowing case to go to jury reflects the court’s interest in good faith in contracting.Any future arrangements would be to speculative . .did cut down on the number of false claims . . but a sales K with privilege: can recover for machines already sold.42/107 Draft an argument for the D. There is no logical stopping point under the arrangement the distributor had with the .says there is a K for at least 51 machines and you’d pay for those .Thus Breach of K was failure to provide P with machines and any est.Good Faith . If ct. etc.K was not a contract of agency. cts usually do not apply statute of frauds. . 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 a writing. .Requiring that certain obligations be proved only through a writing . .Normative Lens: D used the labor of P to find out if Mexico mkt was a good mkt for selling machines (bad faith) .Informal arrangement to supply machines for certain sales . .Statute of Frauds . but anything beyond that is not binding because of the informality of K.When K is for indef term but performance can possibly be performed within a yr. of future sales would be speculative.How long to Ks of this nature usually last . requires writing .Use of expert testimony .It ignored statute of frauds because D didn’t bring it up below so he waived his right to bring it up on appeal.Normatively: argue that D didn’t take advantage of P.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.Section 4: Addressed K type in Wakeman. but that P in fact took advantage of D. .How did Ct. enters evidence that is remote and speculative it should be req that the elements of the evidence should be plead.did nothing about forgery.A better Argument for D .How do you prove what the mkt value should be for damages .Historical purpose: Prevention of fraudulent practices which commonly occurred and led to perjury .

Y. holding that the letters between the lessee and lessor did not constitute a completed agreement to lease. Issues: Was the lower court correct in reversing a judgment for the lessee. forming in substance a lease of the aforementioned premises. The trial court entered judgment for the lessee and awarded damages for the lessor’s The lessor appealed. the lessor sent another letter to the lessee. There was only an agreement to agree. forming in substance a lease of the aforementioned premises. The lessor subsequently sold the property in question.E. 434. Holding: Yes. But he was under no obligation to agree upon such plans. saying that the lease could not be made. N. McCreery. 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. provided he and the lessee should subsequently agree upon plans for alterations to be made. the lower court was correct in reversing a judgment for the lessee. the lessor accepted it. Procedure: The lessor denied the making of an agreement. then after receiving advice on from his counsel. 119 N. 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 same day he received the offer. Policy rationale: . 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. 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.43/107 Case name & citation: Mayer v. given that the lessor declines to make the lease and the parties do not mutually agree upon the alterations to be made. The lessor agreed that he would give a lease. terms to be mutually agreed upon. 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. holding that the letters between the lessee and lessor did not constitute a completed agreement to lease.

164 N.Ct. 1900 in exchange. The Appellate Division affirmed the judgment of the trial court. but rather about the scope of damages. by reason of its failure to state the price to be paid by the defendant.Used later in a variety pf case . and rests upon unfulfilled promise. The plaintiff appealed.The only question was whether substantial damages should be given .E. given that the contract provided that the defendant was to pay a sum not exceeding $300 a week for the plaintiff’s services.Did the ct. 406. New York Press Co. the defendant offering no evidence. 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. . Plaintiff appeals. Policy rationale: Class Notes . Holding: Yes.Case is not about validity of K. 527 (1900). At the end of the plaintiff’s case. that it precluded a recovery of substantial damages for its breach. find the K to be valid or invalid is not the question. The trial court denied the motion to dismiss the complaint.000 ($300 a week from January 1. that it precluded a recovery of substantial damages for its breach.Y. ct found there was a valid executory K . Statement of the case: Plaintiff brought an action against defendant to recover damages in the amount of $93. 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. 58 N.It hurts business to have a set price for an extended period of time . 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. 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. 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.44/107 Case name & citation: United Press v.Lawyers didn’t argue for commercial terms . by reason of its failure to state the price to be paid by the defendant. 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. 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. Procedure: The defendant moved to dismiss the plaintiff’s complaint.. 1894 to January 1. didn’t think about case in commercial terms . 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.

An objection was made to showing this under the complaint. . alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving. When more work came in the employee once again said that if he was not paid more he would start for himself. “You don’t know what I have in view. Doctrinal rationale: (Rule) For the validity of a contract. which was to pay him in addition to his salary. I will see that it is alright. (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. The employer made a motion to dismiss the complaint. Holding: Yes. whether executory or executed. Dissatisfied with the amount received. he told the employer he intended to leave their employ unless they paid him more money. an interest in profits. and stated “You can rely on me. 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. The court denied the motion and exception was taken. 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. Thompson Statement 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. Statement of facts: The employee was an architect employed by the defendants. 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.” but further stated. The employee rested.45/107 Case name & citation: MacKintosh v. parol proof cannot be resorted to. and if defective. The employer said that his idea was to give him an interest in two buildings being completed. but he would be paid more if more work came in. and their full intention may be ascertained to a reasonable degree of certainty. the reasonable value of his services and time spent upon said buildings while working for the employer. Their agreement must be neither vague nor indefinite.” 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. The employer’s attorney opposed the amendment. The employee appeals from the judgment dismissing the complaint. The employer told him that no increase could be made just then. during the completion of two certain buildings in consideration of the agreement. the promise or the agreement of the parties to it must be certain and explicit. To be enforced. He was working for the employer at a stated salary per week. The court sustained the objection because the complaint said nothing about profits. 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. Evidence of the employer’s profits on the two buildings was excluded and exception taken. 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. The employee’s attorney requested leave to amend the complaint.

. because in P plead the reasonable value of his services and sought to prove interest in profits.On redirect examination.NOTE: Ct. didn’t really tell lawyers what they needed to argue by their holdings.P tried to argue quantum meruit.46/107 Policy rationale: Class Notes . when he had a formal contract. P testified that he was promised an interest in profits. . so the lawyers a re trying a variety of different things . quantum valebant. but did not say anything about this in the direct examination. .Proof and pleadings don’t conform to one another.Promise for price above salary is not valid unless in writing (?) .

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 employer told him that no increase could be made just then. but he would be paid more if more work came in. during the completion of two certain buildings in consideration of the agreement. He was working for the employer at a stated salary per week. irrelevant and immaterial and not binding on the ground that the employer’s copartner was not present and the partnership had been dissolved.” and further. Statement of facts: The employee was an architect employed by the defendants. 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. he told the employer he intended to leave their employ unless they paid him more money. alleging that he entered into the contract to remain in the employ of his employer at the same salary which he was receiving. The employer’s objected to this on the grounds that it was incompetent. The employee brought this second action to recover for the same cause. the complaint was dismissed in the trial court and the appellate court affirmed the trial court’s judgment. and that nothing said by the employer could make a contract. Dissatisfied with the amount received. “You don’t know what I have in view. The employee asked what what the amount of increase in his salary would be and the employer answered. When more work came in the employee once again said that if he was not paid more he would start for himself. 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. The third party’s testimony was also objected by the employer and the objection was overruled and the employer again excepted. Holding: . The employer said that his idea was to give him an interest in two buildings being completed. I will see that it is alright.47/107 Case name & citation: MacKintosh v. The employer responded that it is was his partner’s fault. The employee stated that his former relations with the firm were not altogether satisfactory. At trial. Kimball Statement 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.” 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. The employer excepted. Procedure: In the employee’s first action. The employee was then asked in detail about this conversation. which was to pay him in addition to his salary. “You can rely on me. the reasonable value of his services and time spent upon said buildings while working for the employer.

his agency.Point that P could work in his own way suggests that P was a partner and therefore entitled to portion of the profits . P claims that United Press only deals with executory Ks. but this K was already executed.To avoid United Press. 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. Class Notes . 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. . but as to his former partners. 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. is terminated by the dissolution. specific price terms. 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. and his admissions are like those of a stranger and they are not bound them. except for special purposes. not made in the business of winding up and not connected with any transaction or dealing connected with the dissolution of the partnership. Ct.Different Facts: Thompson said earlier that if any more work came in that P would get a raise. (2) Yes. . Their agreement must be neither vague nor indefinite.48/107 (1) Yes. doesn’t accept P’s claim. and their full intention may be ascertained to a reasonable degree of certainty. (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. and therefore doesn’t req.Ct. He may bind himself by his admissions. . (2) The declarations of one partner after the dissolution of a firm. 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. are inadmissible against his copartner.

At the close of the plaintiff’s case. Holding: (1) Yes. given that there is nothing in the contract which fixes the amount of the commissions to be divided. 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. given that the only testimony as to the value of the services actually rendered was the opinion of the plaintiff himself. holding that the first cause of action set up an enforceable special contract. The trial court denied the defendant’s motion. but charged the jury solely upon the first cause of action. awarding plaintiff for the reasonable value of his services. Plaintiff drew plans and designs for the building without any material assistance from the defendant. the trial court erred in entering the jury’s verdict. awarding plaintiff for the reasonable value of his services.49/107 Case name & citation: Bluemner v. Before testimony was offered. Issues: (1) Did the trial court err in refusing to dismiss the complaint. The trial court denied the defendant’s motion. 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. The trial court also denied this motion. but his plans and designs were rejected by the commission as improper and unfit. the defendant moved again to dismiss the first cause of action. given that the only testimony as to the value of the services actually . or anything in its terms to define what would be a fair division of the commissions. Plaintiff also alleged that he rendered service to the defendant that were reasonably worth $10. Garvin Statement 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. Defendant appeals. (2) Yes. 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. which were then approved by the commission. 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.000 of which only $200 had been paid. Procedure: Plaintiff filed 2 causes of action against the defendant. 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. 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 defendant did this. the trial court erred in refusing to dismiss the complaint. 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 that the first cause of action set up an enforceable special contract. the defendant moved to dismiss the first cause of action. The defendant moved for a new trial. given that there is nothing in the contract which fixes the amount of the commissions to be divided. 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.

. but awarded damages that were closer to quantum meruit. . P was being paid a salary.50/107 rendered was the opinion of the plaintiff himself. not quantum meruit. the P was not paid anything for his services. Also in United Press the only question was the scope of damages.The court below focused on formal expressed contract theory. Industry custom. and given that the trial judge only instructed the jury on the theory of formal expressed contracts. not whether there was a contract. and that their full intention may be ascertained to a reasonable degree of certainty. P’s lawyer was forcing the court to express - .This is good because he is not sure how the court will interpret based on prior cases . etc. . Doctrinal rationale: (1) If the intention of the parties in so essential a particular cannot be ascertained from the instrument. In this case. .Good attorney for P because he gives claims to recover under both theories of K (quantum meruit.P could have sought specific performance of the K.In Mackintosh. . neither the court nor the jury will be allowed to make an agreement for them upon the subject. .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. two ways to give him a verdict. and the case here is not an executory contract. The court did not submit the case to the jury upon the theory of quantum meruit.By filing both causes of action. For the validity of a contract.To prove what the reasonable value of services is: P could say what he understood to be the reasonable value of his services. 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. and express K) .United Press isn’t good here because it was for an executory contract. . (2) There is insufficient evidence to sustain the jury’s verdict. the promise of the agreement of the parties to it must be certain and explicit.

In April 1903 the P entered in a contract of employment which provided that P “agrees to sell for the term of 5 yrs. In September 1903 P asked for said commissions and was told it was being applied in the reduction of the residue of his debt. the P paid D on account of the old debt $5.200 or $5. Standard Oil Co. P claims. The Appellate Division of the Supreme Court affirmed the trial court’s judgement.650. .249. the D would make it right with him and repay him for any loss.. 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. 1903 and to recover damages because of the breach of an employment contract under which he was employed. 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. the party of the first part agrees to guarantee the payment of all sales of goods made by him. P again asked for his commissions when they amounted to $6. From May 1901 to April 1903. 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. which is all P said he owed.300. and P on the ground that he did not recover enough. P owed a balance of $27. from the date hereof . Before this agreement was had. according to P. The cause of action for commissions was submitted to the jury. Procedure: The trial judge dismissed the cause of action for damages on ground that the contract.79 to D.58. by the sale of its goods.. 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. D’s super assured P that if he would keep track of the bad goods and try to reclaim the trade. did not impose a duty on the D to employ P for five years. Statement of facts: In May 1901. there was no agency between the two parties.447. who found a verdict for the P. P ceased to buy paint from D and became its agent under a contract to serve for commission. By July 1903. 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.” 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.19 and again the D refused to pay them and. respectively. would be cancelled to compensate him for the loss which he had suffered. There is not evidence of when this agreement was made.000. D on the ground that P should not have recovered anything. though imposing a duty on the P to serve for five years. refused to give him any orders. but also agreed to pay him commissions on the sales of said goods? Result on appeal: Reversed. 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. The P made a claim of loss. At that time he had earned commissions of about $4. he had the understanding that the entire balance minus about $5.” and “In Consideration of the commissions inbefore provided to be paid by the party of the second part.51/107 Case name & citation: Moran v. and the D listened in silence. Both P and D appeal.

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

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- 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. Ditmars Statement 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 business Result 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.

type of K). --> signal to P to present evidence of their claim. Makes United Press look like it applies to a specific case not a category of cases. 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. industry. looks to intention of the parties and to the business meeting.says that each case should be decided based on specifics rather than a general rule . Dissent limits United Press saying that parties never intended to be bound . Moving away from United Press United Press --> Moran --> Varney(Majority) --> Varney(Dissent: Cardozo)--> Rubber(Custom considerations) .55/107 (Dissent) Cardozo concurs in the conclusion that profits were not to be included as an element of damage.says price may be determined by custom (parties. The implication was that P’s employment should continue to the end of the year when the books were to be closed. How does ct. determine what a definite price is? (Dissent) classify Ks according to intent and reasonable implications. Class Notes Ct.

and notified P that it would thereafter perform the same. The trial judge charged without objection that P had no right to demand stipulation that the goods were satisfactory before delivery. v. it be acknowledgement of acceptance. and was paid for in September. and finally stating that delivery orders were ready to be handled as soon as D notified P. P wrote to D in October stating that it had placed about 11. where it could be carefully examined and that D wouldn’t pay until and unless the rubber was satisfactory. The appellate court affirmed the trial court’s judgment in favor of P. 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. agreed to buy from P. which it tendered to D as the October delivery under the K. returned with P’s consent. A second shipment arrived from abroad in October. before it had been inspected.900 lbs. D sent back word to forward delivery for inspection and if it’s quality was not right payment would not be made. Still neither P nor D yielded. delivery was to be made at the rate of about five tons a month in September. but rather rescinded for D’s rejection of a tender which imposed an unauthorized condition? Result on appeal: Reversed and a new trial granted.200 lbs. P sold part of the rubber at a reduced price. P amended its complaint.56/107 Case name & citation: Rubber Trading Co. Procedure: P’s complaint first alleged a tender of full performance. defects were discovered. P made no claim to the contrary. and the notice that the discs delivered must be round were relied on as of repudiation. a manufacturer of rubber. and delivery of orders were to be sent to D when the rubber was ready. that the insistence upon such demand invalidated the tender. and was asked to inspect the rubber while it lay in the warehouse or on the dock. 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 . alleging that the buyer failed to complete K. Statement of the case: A seller brought this action against the buyer to recover the profit lost from a breach of contract. Each notified the other that the K had been broken. He refused and said he would not accept the shipment till the rubber reached D’s factory. P didn’t want the acceptance to be postponed until it had been delivered to the factory. Shortly before trial. Goods were to be billed on a credit of ten days. it became apparent that this theory would not hold because P’s October letter was a departure from the original K. and 7. 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. The first delivery under this K was made in August. Holding: Yes. nor is one claimed. fifteen tons of rubber at $1 per lb. requesting that D make further inspection of the rubber as soon ASAP. At trial the jury returned a verdict for P. D’s announcement that withdrawal of the goods from the warehouse must be w/o prejudice to their rejection afterwards. P retorted that the rubber must be approved at the warehouse. and changed the theory of it’s action. and that there had been no performance by P in the case. D’s refusal to receive them.. and that this anticipatory breach made tender of the rubber needless. Manhattan Rubber Manufacturing Co. the rest it retained. of rubber at the warehouse. D appealed. an importer. It alleged that in October D wrongfully repudiated the K. October and November. which the trial court entered as judgment. Statement of facts: D. Upon inspection. and that if the shipment left the warehouse. D appeals. Other shipments arrived from abroad in November. D’s president was notified of the arrival of the vessel.

and intent of the parties beyond the express terms of the K. these inspections are for patent defects. if such defects were found the goods may have been returned. once at the factory the rubber is inspected for latent defects. but rather asserted rights under it. (Cases citing to Cardozo) . Class Notes .Notion of unfairness because the buyer was the first to repudiate the K.NOTE: Attempt by seller to induce buyer to live up to the contract does not waive right to sue for anticipatory breach.On remand. If D never retracted its unlawful claim of right. . thus the K still stands and remains alive as much for the benefit of the buyer as for the benefit of the seller. . P breached the K w/o regard for D’s breach.57/107 for D’s anticipatory breach. the like is true of P. Doctrinal rationale: Even though D was at fault. but will not receive any damage . but rather rescinded for D’s rejection of a tender which imposed an unauthorized condition. action of the parties. P’s October letter did not abandon the old K. . it is most likely that D will win.Cardozo contrued K in terms of custom.Custom between parties was to be inspected at the warehouse or on dock.Price of rubber dropped in September. Policy rationale: Additional Points: Implies terms according to industry custom and reasonable practice (goes beyond the four corners of the K). . the K survived unless P gave notice of its election to treat it as abandoned. Both are equally chargeable with wrong.

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. Lucy. Holding: Yes. P was to have the exclusive right. The K was to last for one yr. to place her endorsements on the designs of others and to place D’s own designs on sale or to license and market them. D was to have 1/2 of all profits and revenues derived from any contracts he might make. alleging that there was no K because there was no consideration. and yet the whole writing may be “instinct with an obligation” imperfectly expressed. The appellate court reversed the trial court’s judgment and granted said motion. Procedure: P filed a complaint against D for breach of K. D appealed. 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. Policy rationale: Preservation of parties intention to form a binding contract. Lady Duff Gordon Statement of the case: An agent sued “a creator of fashions” for damages sustained from her breach of contract. P’s promise to pay D 1/2 of the profits and revenues resulting from the exclusive agency and to render accounts monthly. The acceptance of exclusive agency was an assumption of its duties. Class Notes . Clothing issued in her name have a new value in the public mind. P appeals. subject to D’s approval. The trial court denied D’s motion for judgment on the pleadings. In determining the intention of the parties. 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. there is a contract. Statement of facts: D is a popular fashion designer. Clothing manufacturer’s pay D for her certificate of approval. the promise has value. 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. was a promise to use reasonable efforts to bring profits and revenues into existence. In return. P also promises that he will account for all moneys received by him. Doctrinal rationale: A promise may be lacking. The agreement of employment is signed by both parties. P possesses a business organization adapted to placing endorsements. D demurred. If that is so. Without an implied promise the transaction cannot have such business efficacy as both parties must have intended that at all events it should have. . 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. D employed P to help her turn this vogue into money. 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.58/107 Case name & citation: Wood v. 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. 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.

Cardozo looks at the contract in common sense way .Stotz compared the agent in this case to a jobber [like the jobber in schlegel(?)] .doesn’t apply in fact.Moving away from United Press [freezing United Press. Wheeler.nothing in the contract that says the D will use his best efforts to bring in contracts . they find a binding contract even thought there are several indefinite terms.does not construe the contract against the drafting party .Vote in this case 4:3.makes no notice of the word “agreement” .implication of consideration even though there is nothing in the contract itself.Why should Wood be protected from not putting any obligations in the K that he had to do anything in the K he drafted. . .59/107 . .Close to Wakeman v. Cardozo in Maj. but in law according to how people in the commercial community behave. but do not overturn it] . . .

to which it had sold goods as far back as 1910. 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. the trial court was correct in rendering judgment for the plaintiff and awarding damages. The average for January to September was a little less than 5.000 lbs of this glue and as it could no longer be bought on the open market it lost its profits on such sales. v.60/107 Case name & citation: Oscar Schlegel Manufacturing Co. D drafted the contract and P signed it. D never repudiated K or disavow the same.000 lbs). P ordered the delivery pursuant to the contract of 79. Issues: Was the trial court correct in rendering judgment for the plaintiff and awarding damages. It bought only for retailing to the trade and did not manufacture or use any of these articles in its own business. Instead of repudiating the the K. and deliveries would be made to P per P’s orders during the year. or question. This agreement was accepted in writing by P and concededly constitutes a contract between them. 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. were concededly well known to D. 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. Nor did any question arise as to the meaning or validity of the K for the year 1916. 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. Procedure: Trial court entered judgment for P and awarded damages. 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. handling glues. or object to. This method of doing business. P took advantage of the fixed price and D subsequently did not perform K. per lb. shellacs paints and chemicals. No question arose between the parties as to the meaning of the K during the year 1915 and P’s requirements. which P might be entitled to receive thereunder. Doctrinal rationale: A rising mkt could have been guarded against by D by inserting in the K a clause fixing the maximum amt.100 pounds. The other damage sustained by P pursuant to D’s breach brought P’s damages up to a total of $6. Between October 30th and December 26th.891 lbs of glue which P needed to meet its requirements and the D did not deliver the same. which had therefore done business under the same system with P. 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.431. P was a jobber exclusively. P ordered an aggregate of 126. P in anticipation of the performance of the contract had sold 42. and the meaning of the term “requirements” as used in the K. 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. . evidenced by orders from its customers were filled without question during that year. In October through December. 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 appeals Statement of facts: D and P entered into a K whereby P would purchase glue from D at a fixed price of 9c.28. the good faith of the orders. 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: Affirmed Holding: Yes. 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 didn’t bind himself to anything explicitly in the K.Why should the court step in and protect parties that could protect themselves . 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 unenforceable Policy rationale: Additional Points: (Dissent) The alleged agreement upon which the cause of action was predicated lacked mutuality of obligation. . and with the intention of being mutually bound thereby. Class Notes . However. They entered upon this K with their eyes open to all the conditions existing.Arguments . 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. or which might possibly arise.61/107 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. D was the one that drafted the K . .Lack of mutuality .“requirements” is too indefinite.If D had considered the idea that the mkt price would increase he might have protected himself in K.

D appealed. so that either can sue the other for breach. while the Q of the article contracted to be sold is indefinite. Procedure: D’s answer put in the same material allegations as the complaint. Holding: Yes. D appeals. The judge entered judgment for P and awarded P a substantial amount. In cases of this character. at the price of 9c per lb. Doctrinal rationale: Mutual promises or obligations of parties to contract. alleging the neglect of and refusal of D to make certain deliveries. At the bottom of the letter setting forth the terms and obligations of the agreement. so D is not bound to furnish P’s orders. and the trial proceeded before the trial justice. mentioned in the agreement by which such Q can be determined by an approximately accurate forecast. 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.” and returned it to D. may furnish requisite consideration. It was simply a jobber. (Application)The lack of consideration does not bind P to order from D or not to order from D’s competitors. 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. Policy rationale: Additional Points: (Dicta) There are certain contracts in which mutual promises are implied. (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. 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. selling glue to customers. the trial court erred in entering judgment for the P. The Appellate Division affirmed the trial court’s judgment.62/107 Case name & citation: Oscar Schlegel Manufacturing Co. holding that the alleged K did not lack mutuality and was therefore valid given that the contract lacked consideration. and demanding judgment for the damages sustained. At the trial a jury was waived. Issues: Did the trial court err in entering judgment for the P. Unless both parties to a contract are bound. P was not involved in manufacturing at the time. nevertheless there is a certain std. that P was not bound to do anything more than to pay nine cents a pound for the glue it might order. v. neither is bound. either express or necessarily implied. P’s president wrote “Accepted. Two of the justices dissented. .

Cardozo implies that he doesn’t believe that “they” meant what it was said to mean . charging them directly to Moses. P made sales to Louis. Procedure: The trial court found that the contract was ambiguous and left its meaning to the jury. D wrote a letter telling P to send Louis his own bills but also stating. Moses began business in July. Louis began business in April 1914.. charging them to D and made sales to Moses.Different than United Press. are also merchants.They do business themself. In October. Louis and Moses. Statement of facts: D is a merchant. The Appellate division reversed. if uncertain.” P interpreted this letter to be a guaranty of sales to Moses and gave credit on that basis. given the ambiguous use of the pronoun “they” and the several possible meanings that could be given it? Result on appeal: Reversed. was to be taken in the sense in which the promisor had reason to suppose it was understood by the promisee. alleging that the contract guaranteed to cover P’s claim against D’s son. The jury were to fix the meaning in light of all the circumstances. Default in payment followed. Moses was not included in the promise since he wasn’t in business yet.63/107 Case name & citation: United States Rubber Co. His 2 sons. 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. v. 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. and therefore send them separate statements. Doctrinal rationale: The promise. treats the dispute as a question of fact for the jury rather than a question of law. but I am good for what they buy. We cannot say that the meaning chosen is without basis in the evidence. Policy rationale: Class Notes . 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. and dismissed the complaint. given the ambiguous use of the pronoun “they” and the several possible meanings that could be given it. P appeals. Holding: Yes. “. Silverstein Statement of the case: P sued D for a breach of contract to recover damages for default of payment. ..

by applying law in a way that best fits the way the business world actually operates.Finding out how things work in facts and apply it in legality . Lurie Woolen Co. Procedure Below: D moved for judgment on the pleadings. Class Notes Buries United Press NOTE: Policy driven case . v. Doctrinal Reasoning: There was no lack of consideration for the concession of an option.Close to Wakeman v. P exercising its option demanded as much more as D could get. but the court still found a contract. Indefiniteness must reach the point where construction becomes futile. . The privilege to order more is coupled with the promise and obligation to accept a stated minimum. when in fact it had gotten 500 pcs which it withheld. 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.64/107 Case Name: Heyman Cohen & Sons.02½ per yard and P was given the privilege to confirm more of the good if D could get more. Wheeler: No definite terms. Holding: Yes. M. 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. Inc. D is bound unless its promise is to be ignored as meaningless. 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. Facts: P and D entered into a contract whereby P agreed to buy and D agreed to sell 200 pcs of tricotine at $3.There is nothing in the facts of the case that say who drafted the the contract . alleging that upon exercise of this privilege. P appeals. saying that it couldn’t get anymore. but only delivered 16 additional pcs. The 200 pcs were delivered and paid for. D appealed. Trial court denied D’s motion. D withheld 500 pcs. Appellate Division reversed the trail court’s decision and granted D’s motion fro judgment on the pleadings. Additional Points: (Dicta) Cardozo limits the decision in Schlegel by narrowing its scope and distinguishing it from the instant case. D confirmed the exercise of the option. 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.

and directed reinstatement of said verdict. that the case was properly submitted to the jury and the verdict of the jury should be reinstated. Facts: D and P entered into a contract whereby D agreed to buy and P to sell 4. In the last quarter of 1919 P refused to agree with D on a price for the first quarter of 1920. 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. all other utterances of the parties on the topic are legally immaterial for the purposes of determining what are the terms of their act. “price for the balance of the year to be fixed by mutual consent. 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. v. In so doing P acted arbitrarily for the purposes of terminating the contract. an agreement to agree is not enforceable.65/107 Case Name: St. The appellate court reversed the trial courts ruling. the price for the first three months was to be $3. Plaintiff exercised its legal right in refusing to be bound by the contract. they amount to nothing more than an agreement to make a future agreement. depriving D of its prospective profits on the transaction and placing the business in the hands of others. Class Notes .Is D a buyer or a broker (the jury found that D was a broker) . Procedure: D counterclaimed to recover damages for the commissions to which it would have been entitled. granted a new trial. D appealed. delivered no more paper and refused to pay D said commissions. The trial court set aside the jury verdict in favor of P. Defendant’s counterclaim should have been dismissed Doctrinal Reasoning: Good faith does not require the contracting parties to do more than they are expressly or impliedly bound by their contract to do. (Application) The terms of the contract are so indefinite as to have no legal significances. repudiated its agreement.77 per hundred pounds. Hubbs & Hastings Paper Co. The jury returned a verdict for D. and finally quoted a price so high that publishers could not agree on it with D. 1919. alleging that P after selling D paper for some time. Regis Paper Co. Policy Reasoning: Protecting freedom to contract Additional Points: (Dicta) When dealers advertise themselves as agents or exclusive agents for certain manufactured articles. When a legal act is reduced into a single memorial. that the case was properly submitted to the jury and the verdict of the jury should be reinstated? RoA: Reversed. it does not follow that they are selling on a commission for the manufacturer.There are ambiguities (“agent” and “commission”) and collateral correspondence (the court ignores this). The trial court submitted to the jury the question of whether P acted in good faith in trying to fix the price of paper. in so far as it pertains to delivery over the unexpired period shall terminate.10 per hundred pounds. .500 tos of paper a year for two years from January 1. D entered into a similar contract as a seller to sell to a publisher for the price of $4. 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. 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.

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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?

67/107

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

... Great Atlantic & Pacific Tea Co............................95 Bowman v..................................... McCrory Stores Corp.........................................................69/107 Blessington v.. ........... ..........................96 Greenberg v................................................................97 ................... .................... Lorenz........................ Great Atlantic & Pacific Tea Co......................96 Mouren 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. Holding/Rule 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. alleging that the city broke its implied warranty on the water to the damage of the household. Race v. . Personal property law: Broader because no it no longer applies to food only. 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. Canavan v. 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. Mere purchase of article ordinarily used for human consumption does by implication make known to seller purpose for which the article is required. Significance on the Law Defines who the seller is. Mohican Co. 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. There is no sale of goods There is a sale of goods. but narrower because buyer has the burden to prove seller had opportunity to inspect. 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. what a sale is. 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. The facts of this case show that the partridges were sold as a matter of law and within the prohibition of the statue. This case is different from Rinaldi in that pork is only used for consumption and water is not. 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. City of Mechanicville (1&2) (1) (2) Household sues city to recover damages for getting typhoid fever from contaminated water provided by the city. implies that seller must have an effective opportunity to inspect goods. 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). 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. If buyer has examined goods and should have the defect. No warranty of fitness implied Ct. but it does not fall under the statute Taking 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. there is no warranty.70/107 Case Name & SoC People v. and when the seller should be held strictly liable. Warranty of fitness implied Food must be for immediate use Rinaldi v.

Stubbs v. 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. but reaches a completely different conclusion. Warranty implied Necessary evidence to prove unfitness in negligence action. the plaintiff cannot recover without proving that the injury sustained was wholly or in part a cause for which defendant was responsible. Warranty of fitness implied Significance on the Law Case is similar to Canavan. 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. 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. Hoisting Engine Sales Co. Implied warranty extends to goods supplied as well as sold under K for sale. Holding/Rule 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. however. Geddling v. There is an implied warranty in the hiring of property or bailment of certain kinds of property. from its character. 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. . 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. When there are several possible causes of an injury for one or more of which the defendant is not responsible. Hart The lessor of defective equipment sued the lessee of said equipment to recover the rental reserved in the lease. but also the lease of goods. Warranty implied Implied warranty extended to not only the sale of goods. v. 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. 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. that party had complied with the “spirit” of the rule.71/107 Case Name & SoC Horton v. 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.

upon a theory of implied warranty that cake was fit for human consumption. who have no contractual relations with him. Apart from Race v. Implied warranty of fitness = implied warranty of merchantability Person cannot recover where there is no privity of contract. Clair for what constituted a sale of goods Significance on the Law Implied warranty limited to contracting party (buyer). Krum where it was found that there was an implied warranty. Aron & Co. v. there must be privity of contract for there to be an implied warranty Implied warranty extended to food served by restaurant owners. 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. because privity of contract does not exist between the seller and such 3rd persons. 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. there can be no implied warranty. Temple v. Holding/Rule A manufacturer or seller of food or other articles of personal property. The owner of a restaurant sells the food which he provides for his guests. 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. The facts in this case are very similar to those in Race v. J. Drake Bros. 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. 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. No warranty implied. No privity = no implied warranty Privity does not extend to infants whose mothers purchase milk for them. Borden’s Farm Products Co.72/107 Case Name & SoC Chysky v. and unless there be privity of contract. 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. Krum the court would still be compelled to reach the same decision based on the decision in People v. Redmond v. 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. is not liable to 3rd person. unfit for human consumption and commercially useless. whereby the patron became ill from ptomaine poisoning. Where a customer enters a restaurant. . receives. under implied warranty. Co.

but a purchaser with a contractual relationship. through his wife. Policy driven case. thus there was no privity of K between her and the manufacturer. Aron & Co.73/107 Case Name & SoC Vaccaro v. Product is merchantable if it may be wholesome if used as intended by manufacturer. Inc. No implied warranty 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. (Change in the treatment of women) The sale of pork that passes government inspection. Wife is no longer an agent. 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. Sills. McSpedon v. recovery may be based on either theory Narrowed warranty because buyer must rely on seller’s judgment. Relies in the precedent set in J. 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. A husband brought this action for breach of warranty against the grocer to recover damages for injuries sustained when he. Progressive Grocery Stores. Breach of implied warranty for wife. Rinaldi: On every such sale of food by the dealer for immediate human consumption there is an implied warranty of its wholesomeness. who acted as his agent bought a loaf of bread from said grocer that had a pin concealed in it which hurt his mouth. the distributor. Holding/Rule In the absence of any evidence to the contrary. Great Atlantic & Pacific Tea Co. 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. Kunz The buyer brought this breach of implied warranty action against the retail seller. Gimenez v. 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. Consumer’s know nothing about the danger lurking in meats or the requisite heating point to destroy parasites. . Where there is dual warranty. v. 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. Implied warranty does not extend to the wife because was acting as an agent for her husband. No Breach of implied warranty for husband. and must rely on the grocer. Prudential Condensed Milk Co. 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 Significance on the Law There is no privity of K for a wife who is acting as the agent of her husband. Ryan v. and husband does not have privity. the butcher and the slaughterer to sell them wholesome food. 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.

nor infant had privity. Action bought by husband and wife against the retailer to recover damages for breach of warranty and for negligence. Mouren v. Great Atlantic & Pacific Tea Co. the plaintiff wife may recover for said breach. There may be a breach of implied warranty. and as a matter of law. and that was the source of their illness. Where the contract is negotiated by another as agent of plaintiff. Holding/Rule Although a breach of a duty may rest upon. Great Atlantic & Pacific Tea Co. . alleging that because the she and the buyer shared expenses. A prima facie case has been established for a breach of implied warranty. 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. a tortious act. Significance on the Law NOTE: wife was the purchaser. its warranties may be enforced by plaintiff. that contained a dead mouse. but court did not agree that the action should have been bought in negligence. some showing of negligence. There may be an implied warranty Moves away from privity requirement Agency theory is not confined to husbands and wives. alleging that the residue from grinding of pork had been allowed to mix with the beef they had purchased. bought by the buyer from the grocer. The court did not dismiss the claim for lack of privity. or be associated with. the contract breached is not merely one to use due care. and so such a cause of action gets the benefit of the 6 year limit as being on an implied contract obligation or liability. incidentally. who shared expenses with the buyer for food. Policy driven case. Proof of negligence is unnecessary for recovery in such a suit. McCrory Stores Corp.74/107 Case Name & SoC Blessington v. Victim. brought a breach of implied warranty action against the grocer to recover damages for injuries sustained when she used oil. and husband bought suit on behalf of the infant Neither husband. An individual may act as both principle and agent. Bowman v. 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. but it is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought. it is independent of negligence. it was the husband. While an action for breach of implied warranty of fitness may involve. in this case.

particularly children cannot protect themselves. Significance on the Law Extends the implied merchantability to the household family .75/107 Case Name & SoC Greenberg v. the presumption should be that the purchase was made for all members of the household. Holding/Rule It is not just or sensible to confine the warranty’s protection to the individual buyer. Protecting the consumer: Members of household. 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. At least as to household food and goods.

offered for sale. Class Notes Relation to Warranty . Section 180 of the Conservation law provides “The dead bodies of birds belonging to all species or subspecies.” Partridges are native to this state. or possessed for sale for food purposes within this state whether taken within or without this state. any species or subspecies of which is native to this state and protected by law shall not be sold. Procedure: Defendant moved to dismiss. After lunch. 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. 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. The next morning the employees of the commission departed paying $15. Holding: Yes. It is possible that if the game is served independently of the regular meal by a hotel or boarding house keeper. 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. that the question whether the same as so served.Says when seller should be strictly liable? . The P appeals.50 each for their board and room. The appellate court affirmed..Defines what is a sale . protected by law.76/107 Case name & citation: People v.. D did not know that these men were employed by the conservation commission.Defines who is a seller . 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. Clair Statement 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. is a gift or a sale may be one of fact. native to the state. 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. Trial court entered judgment in favor of the defendant and dismissing the complaint. The facts of this case show that the partridges were sold as a matter of law and within the prohibition of the statue. 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. or belonging to any family. The P appeals.

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. The patron complained about the quality of the ice cream and only ate part of it. 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. Krum Statement 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. Statement of facts: The manager conducted a drug store that also served ice cream. The appellate court affirmed. The patron with 2 companions entered the manager’s store and asked to be served with ice cream. 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. The trial court entered the jury’s verdict in favor of the P. Public policy as well as the public health demand such obligation should be imposed. D appeals.77/107 Case name & citation: Race v. Procedure: The answer put in issue the material allegations of each cause of action. The clerk who waited on him examined the cream and said that there was something wrong with it. the 2 companions being served from one can and the patron from another. D appeals. 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. Holding: Yes. At conclusion of the evidence. The jury rendered a verdict in favor of the P. Policy rationale: The rule is based on the high regard which the law has for human life. A short time after that. Class Notes 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) Excludes hotel proprietors . 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. which was done. the patron violently ill and was ill for several days.

but narrower because buyer has the burden to prove seller had opportunity to inspect. 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 meat was infected with trichianae. 1915. The P found no defect in the meat. Statement of facts: On December 16th. . 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. Issues: Result on appeal: Affirmed Holding: 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. there is no warranty. Mohican Co. Such a transaction standing by itself permits no contrary inferences. having examined them. 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. Personal property law: Broader because no it no longer applies to food only. Policy rationale: Class Notes: Additional Fact: Pork bore the U. The jury found for the plaintiff and the judgment was then affirmed in the Appellate division. Stamp of approval. the P bought a loin of pork at a market owned by the D. 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.78/107 Case name & citation: Rinaldi v. 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. If it does not appear that the buyer has examined the goods or having examined the goods or.S. She cooked and ate it and was made ill. Even then if buyer has examined goods and should have the defect.

The city maintained a system of water supply for its inhabitants for drinking and domestic uses for a compensation. impliedly warrants that water to be wholesome and fit for human consumption. PB: The complaint contained 2 causes of action. 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. Analyses and inspection of every drop of water collected in ponds is beyond the power of the seller. City of Mechanicville I SoC: Household sues city to recover damages for getting typhoid fever from contaminated water provided by the city. R. Therefore there was no sale of water to this plaintiff. unless there be a sale with the ordinary circumstances of transfer of title and possession of the thing sold. Holding: Yes. impliedly warrants that water to be wholesome and fit for human consumption? RoA: Reversed. The trial court entered an order overruling the defendant’s demurrer. Imposing liability on the state would deter the city from discharging such private duties. Taxation: There was no element of profit involved. R. therefore the court does not hold the city liable. The defendant appeals. 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. for a price given for that particular thing. 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. Rather it wants to encourage the city to take on such duties. The water furnished became contaminated with germs of typhoid fever.: Ownership An implied warranty of personal property is a collateral contract attending a sale thereof. alleging that the city broke its implied warranty on the water to the damage of the household. Issue: Did the trial court err in overruling defendants demurrer. which it has become difficult for members of the city to do themselves. Pol. the peculiar facts out of which a warranty is implied do not exist. and it appears that the seller relies on seller’s skill or judgment.: The court does not want to hold city liable for discharging a private duty. only an assessment/taxation of the cost to furnish to discharge a private duty of the members of the city. Therefore the water was not the subject of barter and sale between parties. the trial court erred in overruling defendants demurrer. so that. The plaintiff ingested the water and contracted the disease. 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. The defendant demurred to the second cause of action for implied warranty. and there is no warranty. 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. Doc.79/107 Case Name: Canavan v. . Facts: The plaintiff was a household in the defendant city. 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. (Cites Rinaldi) It is common knowledge that water supplied from a reservoir is never in the actual physical custody of the seller.

City of Mechanicville II PB: Appellate court reversed the trial court’s order overruling the defendant’s demurrer. however. That the furnishing is without profit is weightless. or irrigation. or when it is supplied through artificial conduits for domestic use. In the character of personal property. does not impliedly warrant that water to be wholesome and fit for human consumption? Doc. and cause it to appear that he relies as to the wholesomeness of the water on the seller’s skill or judgment. industrial growing crops. 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. there is no implied warranty against latent defects even if the vendor knows the purposes for which the goods are bought. water. Case Name: Canavan v. may be bought and sold like other commodities. to the seller of the water the particular purpose for which the water is required. 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? RoA: Affirmed. Pnt. Sale of Goods: Under the statute. The term includes implements. but the flowing water of a stream is not susceptible of absolute ownership and admits only a transient usufructuary property.: The supply of water through pipes for compensation is a sale of goods under the statute. 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. 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 . It is a sale of goods. the case does not fall under the statute.80/107 Add. 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. R. as when it is supplied through artificial conduits for domestic use. goods include all chattels personal other than things in action and money.: (Concurrence) The city was not the manufacturer of the article “sold. in the absence of proof of an express warranty or of fraud or deceit upon the part of the seller. (Dissent) There was a sale. separated from its source or from the body of which it constituted a part.” Where the vender is not the manufacturer and the purchaser knows this fact. 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. 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. Unless the vendor is the producer or manufacturer of the articles. he is not responsible for latent defects. or irrigation. A dealer does not impliedly warrant against latent defects. Either expressly or by implication. o or when solidified in the form of ice. 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.

Class Notes Ct. he simply takes what is offered by the city. Pnt. R. to enter a guaranty or warranty which they cannot fulfill. 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.: (Dissent. . When a city engages in a business. (Dissent. but a private power.” Add. 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. P could possibly recover under negligence.: 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. 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. Pol.81/107 and care of the seller and is its common knowledge that to some extent risk attends the consumption of water. Elkus) A city selling water is not exercising a public. Pound) If it is true that the furnishing of water through pipes is a sale of goods. at a risk which may bankrupt and destroy them.

On the first count for breach of warranty. 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. Holding: Yes. But those assumptions are not decisive. Town of North Attleborough SoC: The buyer brought this action of contract or tort against the seller to recover damages for breach of implied warranty and negligence. before the water could get into the house to be drunk. 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. 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. and it may also be assumed that the title passed at the water gate and not at the meter.: Applicability The judge charged in substance in the instructions that the defendant was bound by an implied warranty under the sales act The sales act does not apply to the furnishing of water supply through pipes (Canavan) Particular Purpose It may be assumed that the warranty is of fitness at the time when title to the water passed to the plaintiff. 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. 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. The purpose for which the defendant warranted the water to be reasonably fit was not merely drinking. The second cause is for negligence. . R. The plaintiff excepted to each of these propositions. 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. At the trial the jury returned a verdict for the seller on each cause. known to and approved by the defendant. The water was not to be drunk at the water gate. 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. Facts: Buyer was poisoned by water furnished by seller through lead pipes chosen by the buyer of three options presented by seller. PB: The complaint contained 2 causes of action. 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. 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. tin or lead. 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 not at any later time. it expressed to the plaintiff its approval of lead pipe.82/107 Case Name: Horton v. 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. Doc.

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: .83/107 If there is a warranty under the circumstances of this case.Compare and contrast with Canavan.

Class Notes: This is how an injured consumer might prove the water supplier’s negligence caused his injury. the plaintiff cannot recover without proving that the injury sustained was wholly or in part a cause for which defendant was responsible. and the medical testimony indicated that his illness was caused by drinking contaminated water. drank the contaminated water and suffered from typhoid fever in addition to the plaintiff. The water of the 2 systems was allowed to commingle by mistake. Doc. . One system was suitable for domestic use. 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.84/107 Case Name: Stubbs v. 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. This was the household’s first cause of action in Canavan. R. however. residents of the district. Facts: The supplier was a city that maintained 2 systems of water supply with 2 separate sources. The trial court dismissed the complaint in favor of the defendant. PB: The evidence on the trial discloses that at least 58 witnesses. The consumer drank the water and contracted typhoid fever. and the other for fire purposes. Defendant moved to dismiss the complaint on the grounds that the plaintiff did not establish that he contracted the disease by drinking contaminated water. 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 plaintiff gave evidence of his habits his home surroundings and his method of living. that party had complied with the “spirit” of the rule.: When there are several possible causes of an injury for one or more of which the defendant is not responsible. City of Rochester SoC: 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.

Res ipsa might not have worked here either since the bottles are not in the exclusive control of the defendant. there is an implied condition that the goods shall be reasonably fit for such purpose. 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. the goods sold are to be reasonably fit for the purpose for which they are required. Add. the owner of a small shop. Pnt.: The Sale of Goods Act: “Where the buyer.: The goods in question were good supplied under the contract for sale. Marsh SoC: 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. expressly or by implication. makes known to the seller the particular purpose for which the goods are required. 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.” Class Notes NOTE: Section 96 may not have applied: “Where the buyer.” It does not include a provision for goods supplied. She was charged three shillings for the minerals and a penny for each bottle.85/107 Case Name: Geddling v. In addition. The defendant appeals. and was about to replace it in the case when it burst in her hands and seriously injured her.: Consumer protection. makes known to the seller the particular purpose for which the goods are required. One day while serving a customer. Therefore the implied warranty for the goods sold themselves extends also to goods supplied under the same contract. the retailer took the bottle from the counter. PB: The trial judge entered judgment for the plaintiff and awarded damages. The goods were a prong of the original contract for sale rather than an extra contract for bailment. so as to show that the buyer relies on the seller’s skill or judgment. Pol. 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. R. and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not). obtained her supplies from a mineral water manufacturer. the penny being refunded on the bottle being returned and forfeited if the bottle was broken or not returned. 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. Facts: The retailer. R. there is an implied warranty that the goods shall be reasonably fit for such purpose. NOTE: Bailer’s Warranty . Doc. carefully handling it. Holding: Yes. 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. expressly or by implication. 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).

involves a change in possession but not in title.86/107 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. .

Facts: The lessee leased equipment from the lessor “to be used by the lessee on his contact at Singac. The lessor appeals. All implied warranties may attach to a written as well as unwritten contract. At trial the defendant testified that he told the plaintiff what he intended to use the equipment for in detail. 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. R. 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. After the lessee had installed the traveler and hoist it broke down completely and failed to do the work for which it was hired. 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. 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. then the warranty may be proved or implied even though hiring was by written agreement containing no warranty. R. N. preceding the execution of the lease.” per the contract agreement. PB: The lessee counterclaimed by setting up a breach of warranty and demanding the damages sustained in consequence thereof. Doc. The appellate court unanimously affirmed the trial court’s judgment in favor of the defendant. 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.: (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. Issue: Was the trial court correct in permitting parol evidence of a conversation with the plaintiff’s president. Holding: Yes. that it is and will be fit for such use or at least will work. The testimony was received over objection and exception. Trial court ruled in favor of the lessee. Implied Warranty for Bailment: There is an implied warranty in the hiring of property or bailment of certain kinds of property. v. . The lessor appealed. from its character.87/107 Case Name: Hoisting Engine Sales Co. The hoist could not be operated as designed to work and the boom broke when attempting to lift one of the pipes. Hart SoC: The lessor of defective equipment sued the lessee of said equipment to recover the rental reserved in the lease. Class Notes: This case was decided under common law. the trial court was correct in permitting parol evidence of a conversation with the plaintiff’s president. Pnt. Pol. J.: 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.: Add. Oral Contracts: If there be an implied warranty in the hiring of machinery for a special purpose. preceding the execution of the lease. The lessee had to a subcontractor to excavate a trench and lay about ten miles of water pipe.

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.88/107 Chysky v. R. Add. even though no contractual relationship exists between them. Facts: The plaintiff was employed as a waitress in a lunchroom. because privity of contract does not exist between the seller and such 3rd persons. stuck in her gum. Buick). Krum). PB: The jury returned a verdict in favor of the plaintiff and the trial court entered the jury verdict.: 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.: (Dicta) Exception: It may be assumed that thunder certain facts and conditions the manufacturer of an article would be liable to a third person. who have no contractual relations with him. The appellate court unanimously affirmed. Her employer paid her $30 a week and furnished her room and board. Case seems to go against the policy rationale for implied warranty. a piece of cake which had been made and sold to the owner by the defendant. as part of her lunch. 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. which became infected as to necessitate the removal of three of her teeth. if the article sold were negligently prepared or manufactured (Macpherson v. But the recovery in this case was not based upon the negligence of the defendant. Pnt. a manufacturer or seller of food or other articles of personal property. there can be no implied warranty. under implied warranty. Holding: Yes. however. Pol. Narrows implied warranty doctrine. baked into the cake in a way that it could not be discovered by inspection. Drake Brothers Co. . and unless there be privity of contract. The defendant appealed. 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. The defendant appeals. (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. R. upon a theory of implied warranty that cake was fit for human consumption. is not liable to 3rd person. While she was eating it a nail.: Limiting consumer protection. Doc. Whether this warranty extends to a wholesaler was expressly reserved (Rinaldi) Class Notes Warranty is contractual and has nothing to do with torts Policy reasoning for implied warranty is to protect the consumer. Plaintiff limited her right to recover to breach of warranty. She received from her employer one day. so why not pass this cost on to the manufacturer.

eats and pays for food.: (Dicta)Apart from Race v. the appellate court was correct in affirming the trial court’s judgment for the plaintiff thereby holding that where a customer enters a restaurant. whereby the patron became ill from ptomaine poisoning. ate it. receives. receives. PB: Trial court entered verdict for the patron. delivered to him on his order there is an implied warranty that the food is reasonably fit for human consumption. Facts: P entered D’s restaurant. . delivered to him on his order there is an implied warranty that the food is reasonably fit for human consumption? RoA: Affirmed. The Appellate court unanimously affirmed. and later became ill. The facts in this case are very similar to those in Race v. Pol R: Protecting the Consumer. Clair for what constituted a sale of goods. 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. received it. Add. eats and pays for food. Krum where it was found that there was an implied warranty. Keeler SoC: 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. Pt. The restaurant owner appeals. Doc R: The owner of a restaurant sells the food which he provides for his guests.89/107 Temple v. paid for it. Krum the court would still be compelled to reach the same decision based on the decision in People v. ordered a portion of fish. Holding: Yes.

the trial court correct in entering judgment for the plaintiff for breach of warranty. Pol R: Protecting the consumer Class Notes Merchantable warranty: std quality of good fit for human consumption (eg: water. bought as they were by description from one who dealt with them. D appeals. Facts: The infant’s mother procured milk and paid for it. The appellate court affirmed. RoA: Reversed. Doc R: No privity between infant and manufacturer. unfit for human consumption and commercially useless. Manufacturer (privity of K) Redmond v. 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. Sills SoC: 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. v. If condensed milk is unfit for human consumption. given that the milk was unfit for human consumption. PB: The case was submitted to the jury on a theory of breach of implied warranty. less responsibility to those who can’t protect themselves (conflicts w/ policy rationale to protect consumer) . 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. decides on the authority of Chysky. Issue: Was the trial court correct in entering judgment for the plaintiff for breach of warranty. PB: Trial court entered verdict for P. The infant was injured by broken glass contained in a bottle of milk that passed into her mouth while she was drinking the milk. there was a warranty that they were of merchantable quality. Holding: Yes. Doc R: The purpose for which these goods were required was at least by implication known to the seller. Borden’s Farm Products Co.90/107 J. Class Notes: Remember VA RR. it does not comply with this warranty. 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. D appeals. Trial court entered verdict for P. given that the milk was unfit for human consumption? RoA: Affirmed. Appellate court affirmed. pork) NOTE: Retailer vs. Aron & Co. Ct.

Facts: P bought and paid for the milk. PB: There was judgment for the damage Facts: P’s wife stated to the salesman that she wished to have a loaf of a particular brand of bread. thus there was no privity of K between her and the manufacturer. 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. through his wife. She lived with her husband. Issue: May the plaintiff recover under an implied warranty of merchantability? RoA: Affirmed Holding: Yes. Relies in the precedent set in J. Pol R: Protecting the Consumer Add. wrapped in a sealed package as it had come from the baker of the brand. Ryan v. PB: This action was tried and a verdict was rendered by the jury in favor of the plaintiff. Inc. Prudential Condensed Milk Co. D moved to set aside the jury verdict and to dismiss the complaint. Aron & Co. who acted as his agent bought a loaf of bread from said grocer that had a pin concealed in it which hurt his mouth. 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. SoC: A husband brought this action for breach of warranty against the grocer to recover damages for injuries sustained when he.: (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. There is no evidence that P was self-supporting or that she depended on her husband for support Issue: Did an implied warranty extend to the married woman? Result: Motion to set aside verdict granted and complaint dismissed. Doc R: In the absence of any evidence to the contrary. . The salesman gave her what she asked for. v. Holding: No. Implied warranty does not extend to the wife because was acting as an agent for her husband.91/107 Vaccaro v. 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. an implied warranty did not extend to the married woman. which was for the sole use of herself and her infant child. the plaintiff recover under an implied warranty of merchantability. Progressive Grocery Stores. 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 eaten Doc R: Loaves baked with pins in them are not of merchantable quality. Pt. Sills.

To maintain a breach of warranty.Shift: wife is no longer an agent. Facts: Wife bought the crab meat sealed in a can from the retailer.Statute has a lot of weeway in interpreting statutes. for without contract. Trial court entered verdict for the plaintiff. These claims may however be brought in negligence.Retailer can’t inspect food because it’s canned. judgment on wife’s claims affirmed. Remember how far down the road we can go. but at trial he amended to breach of implied warranty and eliminated the negligence claim.Seems to be a social need to protect children. when wife ingested said meat.: (Lawyer’s argument) Lawyer for the appellant (Atlantic & Pacific) offered inconsistent arguments: Wife was acting as husband’s agent only.Evolved social policy.92/107 Giminez v. Courts use common law and interpretation to make these decisions. but a purchaser with a contractual relationship. Doc R: The husband may sue when the wife acted simply as his agent in making purchases. then the husband is the person to whom the warranty was made as the principle. This is contradictory because if wife is only an agent. can act as an agent for her child using the agency theory to say that the child should be protected. and husband does not have privity. not the husband. The crab meat contained a deleterious substance other than crab meat. Appellate division unanimously affirmed trail court’s decision 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. Holding: Yes. Add. . Pol R: Privity of contract. As a result. the trial court erred in entering judgment for the plaintiff. there can be no warranty.Does it matter that plaintiffs are married. (Change in the treatment of women) . 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. . Defendant appeals. Pt. . . . the right of action is hers. bought from the retailer that contained a deleterious substance. but the husband could not recover under breach of implied warranty because the warranty was to the wife. Defendant appealed. Atlantic & Pacific Tea Co. Class Notes . 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. 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. but where the wife is the purchaser. PB: Husband’s claim was originally based on negligence. a mother.After this case you can say that a woman. there must have been evidence of a contract between the parties. Issue: Did the trial court err in entering judgment for the plaintiff. her stomach became lacerated and cut. . Purpose of statues is to protect the consumer.

(NOTE: merchantability vs. 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. . the sale of pork that passes government inspection. Dissent: The question in this case is whether the presence of trichinae renders pork unmerchantable.implied warranty case for merchantability: It is assumed that this case was decided upon merchantability. the distributor. PB: The trial court ruled in favor of the distributor and against the retail seller and the manufacturer.93/107 McSpedon v. Pork is fit for human consumption if used in the manner that the packer intended it to be used. or the disease itself. 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. 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. but can be discovered with a microscope. 2% or 3% of of all fresh pork are infected with these parasites. . and must rely on the grocer. . 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. Facts: P purchased pork from the butcher/retail seller which she fried on a gas stove. The slaughterer/manufacturer knew of a method to discover it as well as a method to kill or eradicate the parasite. not fitness because of the dissent. the butcher and the slaughterer to sell them wholesome food. The housewife testified that she knew nothing about the requisite degree of heat.Similar to Canavan becaue of policy reasons.Rinaldi is different because it ruled that the food was unfit or human consumption. Canavan protets the city while this caes protects the consumer. . Kunz SoC: The buyer brought this breach of implied warranty action against the retail seller. Holding: Yes. After eating the pork she was poisoned and developed a disease from a worm parasite usually found in pork. fit for human consumption/wholesomeness) . Warranty of merchantablity is different than fit for human consumption. 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. Pol R: Consumer’s know nothing about the danger lurking in meats or the requisite heating point to destroy parasites.Packer is responsible if product is unmerchantable.Judge might have thought this or decided this case because he might not have known that pork had to be cooked for so long. Issue: Does the sale of pork that passes government inspection. They wer about half an inch thick and she cooked them in a big frying pan until she thought they were well done.Policy driven case . 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. Class Notes . The appellate division affirmed. They render food unwholesome and cannot be seen with the naked eye.

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. Issue: Was the appellate court correct in affirming the decision of the trial court denying defendant’s motion to dismiss. Doc R: While an action for breach of implied warranty of fitness may involve. holding that although a breach of a duty may rest upon. The appellate division affirmed the decision of the trial court. therefore wife was the purchaser. or be associated with.94/107 Blessington v. holding that although a breach of a duty may rest upon. infant had no privity. a tortious act. Class Notes . the appellate court was correct in affirming the decision of the trial court denying defendant’s motion to dismiss. incidentally. . Proof of negligence is unnecessary for recovery in such a suit.suit sold to mother by department store. The trial court denied the motion to dismiss. some showing of negligence. leaving only the claim for breach of implied warranty of fitness. Pol R: Protecting the consumer.Seems to be more policy driven .Redman. 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. 3 of which were dismissed. and so such a cause of action gets the benefit of the 6 year limit as being on an implied contract obligation or liability. or be associated with. but husband filed complaint. it is independent of negligence. . and infant was injured. The infant died from burns suffered when said suit came into contact with a flame and ignited. PB: This action was commenced more than 3 years after the accident. a tortious act. it is independent of negligence. the contract breached is not merely one to use due care. The defendant appeals. The complaint alleged 4 causes of action. 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. but it is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought. 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. Holding: Yes.Why just pain and suffering instead of wrongful death? . McCrory Stores Corp. here perhaps there is no need for privity.

the appellate court was correct in affirming the trial court’s denial of defendant’s motion to dismiss for failure to state a claim. alleging that because the she and the buyer shared expenses. The appellate court affirmed the trial courts decision. The victim used said oil and became ill from it. 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. . holding that where the contract is negotiated by another as agent of plaintiff. The grocer appeals. The oil contained a decayed mouse. Facts: Victim lives with and shares expenses with the buyer.Agency theory is not confined to husbands and wives. holding that where the contract is negotiated by another as agent of plaintiff. brought a breach of implied warranty action against the grocer to recover damages for injuries sustained when she used oil. who shared expenses with the buyer for food. that contained a dead mouse.95/107 Bowman v. The grocer knew the purpose for which the oil was to be used. SoC: Victim. bought by the buyer from the grocer. The trial court denied said motion. The buyer bought oil from the grocer. Holding: Yes.Moves away from privity requirement . its warranties may be enforced by plaintiff? RoA: Affirmed. Great Atlantic & Pacific Tea Co. Class Notes . PB: The grocer moved to dismiss for failure to state a cause of action since there was no privity of contract. The grocer appealed.One can act as principle for herself and agent for another (?) . 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. its warranties may be enforced by plaintiff.

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. 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. alleging that the residue from grinding of pork had been allowed to mix with the beef they had purchased. Holding: A prima facie case has been established for a breach of implied warranty. Both husband and wife subsequently became ill and were diagnosed with trichinosis. Facts: Plaintiff husband procured money from plaintiff wife and purchased 2 top round steaks from the retailer. and served it medium rare. the plaintiff wife may recover for said breach. cooked it.96/107 Case Name: Mouren v. and that was the source of their illness. SoC: Action bought by husband and wife against the retailer to recover damages for breach of warranty and for negligence. and as a matter of law. RoA: Affirmed. . Great Atlantic & Pacific Tea Co. Class Notes: Husband can be both principle and agent. 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. PB: The trial court entered judgment for the plaintiff and awarded damages. Incubation stage for trichinosis ranges from a few hours to 10 days.

Members of household.Extends privity to household family . Holding: Yes.: (Concurrence) Concurred in the modification. The appellate court affirmed. PB: The trial court rendered judgment for both plaintiffs on the warranty theory. particularly children cannot protect themselves. however the Chysky case is still law and it forbids a recovery on warranty breach to anyone except the purchaser.97/107 Case Name: Greenberg v. Facts: The retailer sold the father a can of salmon for consumption in the family home. Thus the father has judgment for his expenses but the minor’s suit was dismissed for lack of privity. 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. but by her father? RoA: Affirmed with modification reinstating the minor’s claim. Add. Class Notes .Does no privity still mean no warranty given the several exceptions? . 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. holding that the old cases were no longer controlling. Pol R: Protecting the consumer. Pt. The tinned fish contained some pieces of sharp metal which injured the child’s teeth and mouth. Lorenz SoC: 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. 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. Doc R: It is not just or sensible to confine the warranty’s protection to the individual buyer. the presumption should be that the purchase was made for all members of the household. At least as to household food and goods. but by her father. the broadening of liability must be left to the legislature. but limited to the facts of this case.

...........................................................104 .....................98/107 Part IV: Legal Philosophers Levi.........................................................................102 Justice Holmes................................................................................................................................................................................99 Llewellyn.........................103 Class Notes............................................................................................................................................................................................................................................................................................................100 Breitel.101 Stotzky.........................................................................................................................101 Michael............102 Gorgias Chart...................................102 Justice Cardozo....................................................................................

particularly relevant when ambiguity has to be resolved for a particular case. but separation of powers comes into play . (2)statute. . fact specific .Case Law: extremely manipulative.By bringing case for P.Constitution: most ambiguous (all we have is Framer’s intent and the text).Urge similarities/differences in cases (persuasion by similar facts) .Can’t have general rule from first case. Anything specifically in the Constitution can’t be altered by case law . lawyers and clients are allowing vicarious participation of all citizens Judges .99/107 Levi Lawyers . can manipulate to a reasonable extent.Law must remain ambiguous to allow for outside inferences .Cannot be completely impartial: arguments of lawyers make hearing fair . (3)Constitution .Problem: if we compare similarities and differences.Bound by (1)precedent.Law expresses the ideals of the community and are molded for the specific case.Have the doctrine of dictum that allows him to make is own decision* Precedent .Judges are to determine the similarities and differences between the facts of the present case and the precedent . Law/Institutions . when will it be just to treat different cases as the same? .Law is expression of society. have to see how it will be interpreted .Statutes: manipulation is somewhere between the Constitution and case law.

Reasonable man rules our legal theory .A case. and (3)the working situation (society/community/individual).rule laid down as a function of the outcome of the case . standing alone.Present facts most favorable to your client . what they do with the disputes presented to them .100/107 Llewellyn Lawyers . (2)the judges application of the rules.Law is not an exact science Law/Institutions .The law is what the judges do with it.Law as a liberal art not a science .True Rule: cases only have meaning in their social setting .Even wayside remarks by the court shed light on the remarker .Legislation is a tool of social readjustment .Holdings show the lawyer what facts have legal significance . have to know which facts have been deemed relevant .Need to learn: (1)technical proficiency.make an educated guess based on prcedent .Advocate: dispute resolution .Judge is like an umpire .Use rules/precedent to help you predict what judges are going to do .Lawyer’s slip of etiquette is the client’s ruin .If the rules were results there would be little need for lawyers .legal rules are post hoc rationalizations of the actual decision .Law maintains order more than it makes it (Society creates order. (3)spirituality Precedent .Lawyers should know: (1)the rules/law.Judge can always interpret a case strictly or loosely . Legal Education . Judge takes rules of the game from existing practice .Sieve theory of facts: lawyers preset facts.Judges still human and are lawyers too: prone w/o thought to twist analogies and rules. prone to disregard the implications which do not bear directly on his case. He must understand what the law means to the courts and to laymen Judges .Judge has important role in charge to the jury (can shape the outcome of the case in this way) . and instances to his conclusion. trial court uses some in decision. las facts standing create the rule of law .Roles . appellate court uses fewer.in civil law the umpire has to wait to be called in (different in criminal law). (2)intellect. gives no guidance.Bargaining in the shadow of the law .Counsel: dispute avoidance .Lawyers must have objective of doing well .How disputes are settled depends on the judge’s interpretation . law maintains it) .

depends on the layman interpretation of the law . But law and behavior do condition each other (eg: what we have to include in K) .regulating what ppl do before disputes .subject to the life of the community and the needs of the individual (ie:the working situation) Breitel Lawyers: 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.Lawyers should both do well and good (moral bases for becoming a lawyer) Judges .Broad and narrow holdings to fit the facts. lawyers must properly phrase the argument for the court . known who is hearing your case. 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.not just substantive law. 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).Check and balance system.Affecting ppl’s behavior . societal values control the situation .Anticipating/preventing disputes .Heavily influenced by Llewellyn .Judges bring their own background into the situation as well Legal Education: Doesn’t teach enough craft .Must understand the substantive law.101/107 . more of how to use precedents. 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 Stotzky Lawyers . etc. Precedent .

Confusion between morality and law (should not be) .Procedural rules are intended to protect the litigants against selfishness and avarice and stupidity and incompetency and partiality. Rubber Trading.Not a follower of Llewellyn and Levi’s true rule that law exists within its social setting .Canons of Cardozo . then uses precedent to support his decision . Cohen v.Present condition of law as a subject of study . Wood v. Lucy.must possess those good habits of learning and knowing. and (2)in terms of the ends which regulation is designed to serve. of thinking and communicating.Jurisprudence Justice Cardozo .Decides 1st how he wants a case to come out.Issues of fact: issues about matters of fact which are legally significant .Formalistic Judge . Lurie.102/107 Michael Lawyers .Forces which determine the law’s growth and content .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 of doing (skills of the lawyer) . . Sun Printing General concepts . Justice Holmes .must not only be intellectual. but moral and practical as well Law .The ultimate end of legal education ought to be the the good artist in law . .Rules of procedural law regulate the intellectual affair we call controversy .“Agreement” implies mutuality of obligation . US Rubber.must have a profound understanding of law as a political instrumentality and of law as a science. but the common good of the society in which he practices Legal education .Hid his light under a bushel: Extremely persuasive judge w/o alienating ppl or being overt .Conscious and aware of the business world .4 principles .Tries to integrate “good faith” .Construe contract against the drafting party (policy reason: justice for the little guy) Opinions: Moran.must be both a prudent and just man to work for not only the good of his client.Issues of consequence: award or denial of a legal remedy.Issues of law: the practical issues about what ought to be done . .

Says oratory is most punished on earth than to morally acceptable suffer in the afterlife. .Although he may not defend himself at trial. thinks that true power is the ability to push people to do what is right so they can be moral .103/107 Gorgias Socrates Gorgias Polus .Criticizes Socrates for pursuing philosophy instead of pursuing being rich. immoral . 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. Callicles .S.Socrates says that a student thus rhetoric is immoral.Morality is the law of nature where the strong rule over the weak . Gorgias Diff in being a citizen in Athens and citizen of the U. conventional laws of morality are created by the weak to stop the strong . the cost of losing his life is better than living in immoral society . Means and ends: if Socrates goal to bring one to moral righteousness. Socrates says that only life worth living is that of philosopher . but brings up afterlife as reason to want to be good . but does not . prestigious and powerful. one should always seek to do what is good. (?) Gorgias argue that he can teach someone to persuade a lay audience to believe something that is purported by experts Socrates: Better to suffer wrong than do wrong.The others? They will be defenseless in the afterlife.Polus thinks dictators can do what they want. Polus is not respected in the same way as Gorgias so when Polus interrupts it upsets Socrates The distinction between the way Socrates treats Polus and the way he treats Gorgias is broad.Moral Position: Better to .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. Socrates is more gentle in his dealing with Gorgias because.In argument w/ Polus. better to be .Callicles moral stance: Might makes right .Claims he can teach anyone suffer evil than to evil.Does not think there is any claim to make everyone substantive (knowledge) moral by his speeches basis to Gorgias’ rhetoric & . can use rhetoric taught by persuasion w/o knowledge is Gorgias to do something immoral. profession.Does not respect Polus because he only follows .Callicles does not respect Gorgias who only teaches & does not practice. Gorgias is favored by the surrounding ppl Socrates and Gorgias seem to be from the same generation Socrates criticizes the morality of Gorgias profession.The powerful do what they want. rich and ambitious .. don’t to be persuasive harm others. 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 indicates that he thinks Callicles is only worthy opponent .Socrates does not say what is morally good. Polus “True believer” --> believe blindly without seeing the weakness in their own arguments.. .

government doesn’t give much .To ease one’s conscience? --> Duty to make past wrongs right.Government v.Takes too much out of life .objective about clients interests.Possible that what one does as a lawyer is a moral end in and of itself . Why practice law? (Means and ends: Are the means acceptable? Is the intended goal (end) acceptable?) . then being a lawyer is not the way to live your life.104/107 More intellectual able to argue with Socrates than Polus and Gorgias He argues that those who are powerful can do what they want. but empathetic about their feelings .good judgment Roles lawyers assume .Belief that to whom much is given much is required .fair share .The attainment of practical wisdom (makes being a lawyer a moral means to an end) What makes a good lawyer? . but does not concede to Socrates.political drivers in giving aid .What is the goal of philanthropy? .counter: “it’s inefficient just throw money at a problem” . . Is Callicles then a Hedonist? --> Good pleasures v.counselor .To make themselves feel important? .judge .There are no easy solution to these problems .Value of a human life? --> Is one person’s life worth more than another’s? .Most lawyers aren’t rich .To obtain wealth (?) (What will you do with your wealth?) .Government . bad pleasures Socrates uses a method that does not convince Callicles even if Callicles argument leads to a logical contradiction.giving everything . private philanthropy .Private philanthropy is better because its more efficient . ---> Callicles just stops arguing.human nature is peculiar Is it morally permissible to do the things a lawyer does? If it is not. Class Notes Ethics (Article by Singer) .knows what moves people .

Dicta: (1)Statements of opinion or belief considered authoritative because of the dignity of the person making it. especially if the deprivation of a significant life. (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. Cause of Action: (1)A group of objective facts giving rise rise to one or more bases for suing. Consideration or a substitute such as promissory estoppel is necessary for an agreement to be enforceable. (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. a factual situation that entitles one person to obtain a remedy in court from another person. The essential allegations in an action for ejectment are that (1)the plaintiff has title to the land. 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. Ejectment: A legal action by which a person wrongfully ejected from property seeks to recover possession. Consideration: An act. damages for the detention.105/107 Definitions Affidavit of Ownership: A voluntary declaration of ownership written down and sworn by the declarant before an officer authorized to administer oaths. Plaintiff must prove: superior possessory right. forbearance. 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. that which motivates a person to do something. Remedy: item OR value of the item (at the end of action). and costs. the basis for the plaintiff’s claim. and the demand for relief. not legal ownership. (2)the plaintiff has been wrongfully dispossessed or ousted. and (3)the plaintiff has suffered damages. or return promisee bargained for and received by the promisor from the promisee. 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. liberty or property interest may occur. damages. . Demurrer: A pleading stating that although the facts alleged in a complaint may be true. Conversion: (1)The act of changing from one form to another. 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.

not a writing style. whereby the plaintiff gives security for and holds the property until the court . 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. claims. inconvenience of another. Must be filed with affidavit of ownership. annoyance. denials. Remand: (1)Act or instance of sending a case. damages awarded in an amount considered reasonable to compensate a person who has rendered services in a quasi contractual relationship. 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. Requirements: actual interference with use and enjoyment of property. Pleading: A formal document in which a party to a legal proceeding sets forth or responds to allegations. Usually a non-monetary remedy. Non Assumpserunt: Not guilty plea Nuisance: A condition. Personal Jurisdiction: Power of the court over a particular person. claim or person back for further action. such as injunction or specific performance.106/107 Equity: A right. or defenses. Refers to a way of thought. lasting usually until a debt or duty that it secures is satisfied. Remedy: damages if there is substantial harm Period Style: The way a judge forms his opinions. obtained when available legal remedies cannot adequately redress the injury. unlawful use of property to the discomfort. interest or remedy recognizable by a court of equity. Nolle Prosequi: A legal notice that a lawsuit or prosecution has been abandoned. (2)An order remanding a case or claim. Quantum Meruit: Reasonable value of services. Power to haul a person into court. Replevin: An action for the repossession of personal property wrongfully taken or detained by the defendant. either more policy driven or more case law driven. activity. does not have to be on P’s property. or situation that interferes with the use or enjoyment of property.

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. (2)An affirmative defense barring the same parties from litigating a second lawsuit on the same claim. Asks ct. constitutional competence to hear a case. does not require substantial harm (any harm works). damages for the taking/detention. Trespass: a cause of action to recover damages for unlawful entry into another’s property. or any other claim arising from the same transaction or series of transactions and that could have been. If the ct. Subject Matter Jurisdiction: Authority of a court over a case.but was not. Rule Nisi: Temporary granting of new trial. must be immediately injurious. Remedy: item (returned immediately). Remedy: Damages in proportion to the harm. damages for the time that the property was invaded (nominal). Prove: superior possessory right. Res Judicata: (1)An issue that has been definitively settled by judicial decision. still thinks there should be a new trial then a rule absolute and a new trial is granted. . Requirements: must show that damage was done while property was in the rightful owner’s possession.raised in the first suit.107/107 decides who owns it. Rule Absolute: Affirmation of Rule Nisi grant of new trial. to make a ruling that does not have any force as of yet. not legal ownership.

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