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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

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. damages for injuries sustained by the . . 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. The very essence of the promise of a contract to deliver articles is ability to procure or make them. . .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. Armentrout . 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. not a cause extraneous to it. Greenbarg .The child could not be guilty of infant when struck by the railroad contributory negligence. understand the statutory signals if they had been given. it must be a substantial factor in causing the harm.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.4/107 Case Krauss v. Virginia Railway v.117): meant to protect cattle.Parents should be responsible for their children.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.For something which is a cause in fact to be a legal cause. Holding/Rule Court applied the Hadley Test.Virginia Statute (p. at the time the contract was made.A party to contract cannot cover damages which he could have avoided by reasonable means. as the probable result of the breach (foreseeability). . and independent of the engagements and exertions of the parties. . adding a causation element .

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

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

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

Atlantic Cement Co.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. 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. smoke and vibration emanating from the plant. However. it seems fair to both sides to grant permanent damages to plaintiffs. to follow the rule literally in this case would be to close down the plant at once. E. being blown by the prevailing south to . cattle feedlot near the developing town. Boomer v. To avoid that immediately drastic remedy. Inc. . to indemnify those who are forced to leave as a result.Policy driven: protecting the cement plants. . Where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. alleging injury to property from dirt. . 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. 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. .Injunction . Webb Development Co. has a standing to bring suit to enjoin the nuisance.It does not seem harsh to require a developer.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. v. Del. Land owners sue a neighboring cement plant operator for injunction and damages.8/107 Case Spur Industries.

Plaintiff waived entitlement to judgment on the pleadings and went to trial.. the less democracy there might be. and by claiming protection of the Pawnbrokers Act. and given that a married woman is authorized to hold property as if she were unmarried? Result on Appeal: Reversed Holding: Yes. The more constitutionalism there is. 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. Class Notes Constitutionality of Statute . 221 Ind. Statement of the Case: Action by a married woman with superior possessory rights of a ring against a licensed pawnbroker. Wolf Sussman. 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. Procedure: Plaintiff filed complaint on 2 counts of replevin and 1 count of conversion. 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. Constitutional considerations: No person shall be deprived of property without due process of law. Doctrinal Reasons: A waiver may result from the character of defense made to the action. Ring owner appeals the denial of the motion for new trial.Courts don’t like to judge constitutionality of statutes because it’s antidemocratic. 1943).9/107 • • • • Citation: Butler v. 47. Trial court denied motion. Any affirmative action on the part of the defendant calculated to establish title in himself. by contesting the suit on its merits. for replevin and conversion of the diamond ring pledged by the wife’s husband to the pawnbroker without the wife’s consent. Inc.E. Trial court entered judgment for the pawnshop. 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. 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. by contesting the suit on its merits. and given that a married woman is authorized to hold property as if she were unmarried. and hold personal property. acquire.. Defendant answered in general denial. The wife missed the ring while packing at the time of the separation. She is currently married though she and her husband are separated and she does not know his whereabouts... Plaintiff moved for a new trial. 46 N..2d 243 (Ind. whether by pleading or proof ought to waive a demand. Statement of Facts: The wife inherited said ring from her mother. D’s actions to establish title in himself showed that he would not have complied with a demand. . and by claiming protection of the Pawnbrokers Act. (Dicta) A married woman may have property interests and if so those interests cannot be taken away without due process of law.

. why not just enter final judgment instead of remanding the case? --> Not enough evidence to prove the factual basis of the case.As applied . .Court determines that section 32 of the act violates due process of state and federal constitutions and is therefore unconstitutional as applied because the defendant had a vested interest in the property for which she could not be deprived without due process .Due Process: Substantive. .10/107 .The court found that the statute was unconstitutional as applied in the present case .Standard of finding a statute unconstitutional .On its face .Pawnbrokers Act retroactively changed the vested interest in Property. --> Butler had a vested interest in the property before the pawnbroker’s act was passed.After finding this. Procedural.

(4)Likelihood that the item will be defaced . (2)questions of legitimacy .Reluctancy to get into equity: (1)oversight. Cookson. Procedure: The owner brought a bill in equity. Class Notes Defendant . . rules a certain way When is equitable remedy suitable? . limitation of means). remarkable for a Greek inscription and dedication to Hercules by way of treasure trove.pay damages or return it .).11/107 Case name & citation: Duke of Somerset v. (3) one of a kind item can’t be compensated for fully in monetary damages. Policy rationale: Other causes of action would not have compensated the owner for what was actually important to him. (4)overseeing enforcement . (3)injunctive relief.trover: gives only money damages . (2)Likelihood of return.Equitable remedy: (1)force ppl to do things otherwise be held in contempt. who had notice of the owner’s claim to the piece. The possessor demurred. for the delivery of the altar piece.Limitation of means: you’re not always going to get what you want.must prove that item was unlawfully detained . Doctrinal rationale: Only the intrinsic value of the item can be recovered in trover. Objective value (Subjective: sentimental attachment & Objective: one of a kind item.detinue: . 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.legal remedies and these remedies are adequate . 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.Factors: (1)Subjective vs.item might be defaced before it is returned . remarkable for a Greek inscription and dedication to Hercules? Result: Demurrer overruled Holding: (Narrow) Yes. The owner’s altar piece was taken and sold to the possessor. 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. Statement of facts: The owner came into possession of an old alter piece made of silver. undefaced. a goldsmith. 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. a goldsmith. remarkable for a Greek inscription and dedication to Hercules. 24 Eng.“Flood gates” argument --> horrible things will happen if the ct. (2)justice (ideal result vs. (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. Rep.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 owner was in possession of the premises at all times mentioned and since. 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. 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. NOTE: all trespasses don’t give rise to an ejectment action.requires re-filing Nuisance: interference with the use and enjoyment of one’s property interest . 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. ejectment). 1906). The appellate court affirmed the lower courts decision by a divided vote. 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. 79 N.. except the part that was occupied by the telephone company during the period specified.12/107 Case name & citation: Butler v. Holding: Broad: An ejectment lies because the owner was deprived of land which includes the surface and the space above. Telephone company removed wire after the complaint was filed. The Frontier Tele. Trespass is an invasion in the possessory interest of someone else’s property (Trespass vs. . Procedure: The trial court entered judgment for the owner of the premises and awarded damages in the amount of six cents. Co. Narrow: Yes. 486. 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. The telephone company appealed.E.public .private . 716 (N. Doctrinal rationale: The ability of the sheriff to deliver possession is a test of the right to maintain an action of ejectment. 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.Y. Class Notes Question: Who owns the air space and how can they use it? . 186 N. but before trial. The telephone company appeals.This case set the tone for airspace ownership.Y. Telephone Company took wire down after action was commenced.use of airspace for telephone wires . 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.

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

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. Doctrinal rationale: Where two parties have made a contract which one of them had broken. causing the delivery of the repaired shaft to be delayed at the profit loss of the patron. 145 (Ex. Procedure: The patron filed a complaint claiming breach of contracts and negligence. or such as may reasonably be supposed to have been in the contemplation of both parties. at the time they made the contract as the probable result of the breach of it. 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. Issues: (1) Did the ct. Holding: (1) Yes. The carriers appealed. err in failing to instruct the jury not to use lost profits when estimating damages? Result on appeal: Reversed and remanded. The trial court entered judgment and awarded the jury verdict of 25l. Policy rationale: (1)Protect Commerce. The patron entered a nolle prosequi as to the breach of contract claim. 1854). 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. Baxendale. the ct. err in giving the jury general directions. (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. the ct. The carriers moved for a new trial. Rep. damages beyond the amount to be paid into court. The carriers negligently did not deliver the broken shaft until a week later. erred in giving the jury general directions. The common carriers pleaded non assumpserunt to the breach of contract claim. if they could reasonably foresee. 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. 156 Eng. The appellate court found instructions to be adequate and affirmed the jury award. 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. The patron filed suit. erred in failing to instruct the jury not to use lost profits when estimating damages. based on special facts that certain damages will be incurred. (2) Yes. . 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.14/107 Case name & citation: Hadley v. contesting the jury instructions.

15/107 .Even if P communicated the circumstances he said he had.Applying the rule through some sort of normative lens: Ppl are in equal bargaining positions normatively in contracts. he would have charged more. Is this a torts case in which foreseeability should apply or is it a contract case in which foreseeability applies? . because if he did. . one can argue that the defendant did not agree to the consequences of the special circumstances.

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

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

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

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). Policy rationale: Parents should be responsible for their children.19/107 the infant on the track and stop the engine before striking him. and in calling the jury’s attention to the fact that the engine concerned in this case had been in operation until a few weeks before the trial and yet the defendant had made no test as to the engineer’s ability to stop the engine when running at certain speeds. Doctrinal rationale: (1) The child could not be guilty of contributory negligence. . Furthermore. the judge failed to comment on the absence of the element of emergency from a test staged after the event. (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. 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. but there can be no recovery on the failure to sound the whistle since it was not the proximate cause.

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

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

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

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. Procedure: At trial. 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. through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of a bridge. 118 Mass. the jury found for the victim. Statement of facts: Boat hit the bridge and the bridge worker was injured. the trial court was correct in entering the verdict of the jury. Issues: Was the trial court correct in entering the verdict of the jury. Doctrinal rationale: Consequences of negligent act need not be foreseen by defendant. . It’s enough that the injury is the natural and probable consequence of negligence. Winsor.23/107 Case name & citation: Hill v. 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). It is not necessary that injury in the precise form should have been foreseen.

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

Issues: Was the chancellor correct in dismissing the victim’s bill. or extraordinary occurrence although such happening is within the range of possibilities. and done in such a situation. 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. Statement of facts: While the agent of the oil company was delivering gasoline to a filling station a fire was suddenly started. improbable. Doctrinal rationale: In order that a person who does a particular act which results in injury to another shall be liable therefor. Holding: Yes. contending that the fire was the proximate of her misfortune. she turned to get her child with the intention of fleeing from the cafe that she and her husband operated. but the actor is not bound to a prevision or anticipation which would include an unusual. the act must be of such character. 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. Gulf Refining Co. 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. suffered a miscarriage. When the victim heard these shouts and saw the fire. .2d 780 (1942). 9 So. that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom. which rapidly spread to the tank car and to the filling station itself. subsequently. Procedure: After a full hearing the chancellor dismissed the bill. 193 Miss..25/107 Case name & citation: Mauney v. the chancellor was correct in dismissing the victim’s bill. People ran shouting fire loudly. 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. In her hurry to get to the child she fell over a misplaced chair and. 421.

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

NOTE on Injunctions . . but it doesn’t work) .27/107 .Federal judges were criticized for being activists when they granted large scale injunctions relief . That statute was meant to protect unions but the defendant company in this case uses it to their advantage (clever.Courts can enforce certain moral standards in relations between people. it goes against the original purpose of the statute which is to protect the labor unions.Unions were once hindered by injunctions so they got a statute passed that several things must be met before companies could bring injunction suits.Court driven by policy: even though the defendant’s argument makes logical sense.

even though the license may have expended money on the faith of it. . and in the face of repeated demands neglected and omitted to remove the rocks from the land. (8)real property vs. Policy rationale: Additional Points: (Dicta) One who would justify under a license or permission must bring his acts within the terms of the license. that after the withdrawal of the permission in the spring and the demand for the removal of the rock the defendant was a trespasser. A court of equity will act in such cases only after the plaintiff’s right has been established at law. However. Class Notes . is revocable at pleasure. and the trespass was a continuing one which entitled plaintiff to equitable relief. (4)public interest. the defendant covered six of the lots of plaintiff with “huge quantities of rock”. 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. Doctrinal rationale: While ordinarily courts of equity will not wield their power merely to redress a trespass.Factors for injunction: (1)Likelihood of success on merits. (6)irreparable harm. other property. Parol license. He exceeds then at his peril. Then in the spring the plaintiff. 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. discovering the abuse of his permission. and in the absence and without the knowledge of plaintiff. The defendant gave his assurance that he would remove them in the spring. unless extended by the court. yet they will interfere under peculiar circumstances. 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. In cases of intrusion where no consent had been given for the entry of the intruder. and awarded judgment requiring defendant to remove the rocks before March 15. he did not. and a multiplicity of suits at law was involved in the legal remedy. (7)practicality of framing and enforcing a degree. the defendant. complained bitterly of defendant’s conduct and ordered him to remove the rocks to some other locality. Holding: No the trial court did not err in granting an injunction holding that there was no adequate remedy at law. if the defendant is judgment proof the injunction may not be enforced . founded upon no consideration. can make no difference as it respects the adequacy of the legal remedy.Injunction: Cost shifting mechanism in this case. who was a total stranger to the plaintiff. during the winter. and have often done so where the trespass was a continuing one. or became one after a revocation of the license. however. (2)balance of equities. seeking an injunction. 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. There is no equity in allowing him to strain them beyond their fair and reasonable interpretation. Though the defendant promised to do so. but whether the trespass was such from the beginning. Statement of facts: The defendant. (5)was defendant willful. (3)Whether plaintiff has “dirty hands” (good faith). 1886.28/107 Case name: Wheelock v.

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

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

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

Pol R: Protecting the public from disease Add. . E. “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. v. The feedlot was both a public and a private nuisance.32/107 Name: Spur Industries. Facts: Cattle in a commercial feedlot will produce 35 to 40 pounds of wet manure per day. and that despite the admittedly good feedlot management and good housekeeping practices by the feeding operation. 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. 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.” Issue: (1) Was the trial court correct in enjoining the feedlot where its operation of business is lawful in the first instance. per head. 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. the plaintiff must indemnify the defendant for a reasonable amount of the cost of moving or shutting down. or over a million pounds of wet manure wet manure per day for 30. Inc. 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. SoC: A development company sued a neighboring feeding operation to enjoin the feeding operation from operating a cattle feedlot near the developing town. the trial court was correct in enjoining the feedlot where its operation of business is lawful in the first instance. (2) Yes. PB: Trial court ruled in favor of the plaintiff. 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. To constitute a public nuisance. but becomes a nuisance by reason of a nearby residential area. to indemnify those who are forced to leave as a result. rodents. Having shown a special injury in the loss of sales the development company has a standing to bring suit to enjoin the nuisance. 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. Having brought people to the nuisance to the foreseeable detriment of the defendant. Statute provides.000 head of cattle. Del. 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. (2) It does not seem harsh to require a developer. the resulting odor and flies produced an annoying if not unhealthy situation as far as the senior citizens of town were concerned. Webb Development Co.

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

Kimball With regard to evidence. 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.34/107 Case Name & SoC Wakeman v. be agreed upon.)) is turned into law in Mackintosh v. (3)territory. Wheeler & Wilson Manufacturing Co. United Press v. indef terms cannot lmt (4)quantity. price FACTS: D paid $300 a week here is subject to future until breach. 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. 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. net gold price”). Indefinite Terms: (1)duration When certain damages are of the K. but D is still the prevailing party because only nominal damages were awarded Dicta about enforcement (makes a difference that it is executory K. There is a huge difference between this and Wakeman Maybe Wakeman doesn’t apply in real property treatment (?) Mayer v. had goods been supplied to D. overrules Wakeman. (2)price (“lowest direct result o K breach. 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. 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. D’s position is agreement (ie Agreement to that the price could no longer agree). 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. . Still in the middle create a fixed price term that K period could have been. K operative only so long as the parties agreed on price K is enforced. Contract Type of contract: Oral Executory (for action that had not yet been performed) Evidence & Holding Effect on other cases . 1894 to January 1.Expert testimony not permitted. New York Press Co. Plaintiff brought an action against defendant to recover damages in the amount of $93.No parole evidence to executory. 1900 in exchange.Parole Evidence: to give meaning to K. Distributor sued manufacturer to recover damages for profits lost on actual sales made by the distributor as a result of the manufacturer’s breach of contract to furnish the distributors’ machines at the lowest net gold price should the distributors sell fifty of the manufacturer’s machines. . Type of contract: Written .000 ($300 a week from January 1. All conditions of the K must be met before the K becomes operative. (5)delivery liability for the damages terms.

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

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

the K contains a mutual obligation and is enforceable D could have protected itself (2)Where requirement K has an indef. to buy minimum amt of the good. Lucy. Different from United Press not looking at scope of damages . Cardozo Wood v. v. Cardozo Oscar Schlegel Manufacturing 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. uses instinct with obligation from Moran but disregard Moral that the drafter of K being in position to protect himself. Manhattan Rubber Manufacturing Co. Test: K enforceable when both parties can sue (1)Looks only at conduct of breaching party not Cardozian (2)Distinguished Lucy b/c no agency being paid half the profits which forced the P to act in good faith and buy Here nothing to imply mutuality United States Rubber Co. v. Lady Duff Gordon An agent sued “a creator of fashions” for damages sustained from her breach of contract. A seller brought this action against the buyer to recover the profit lost from a breach of contract.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. Follows Moran . v. Cardozo Type of contract: written executory Indefinite Terms: which son D is referring to Where the guarantor makes an ambiguous promise. quantity term and the buyer wasn’t req. 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. alleging that the contract guaranteed to cover P’s claim against D’s son. K is invalid b/c consideration lacking. Type of contract: written executory Indefinite Terms: amt of goods to be furnished (quantity) . he will be held to the meaning that he had reason to believe that P would reasonably attach to the promise K is enforced. K is enforced.indef term against writer of the K .just who the guarantee covers. NOTE: court implied term according to custom and practice Evidence & Holding . damages can be awarded for the breach. alleging that the buyer failed to complete K.37/107 Case Name & SoC Rubber Trading Co. Silverstein P sued D for a breach of contract to recover damages for default of payment.Cardozo looks at custom between parties. (II)Decided w/o Cardozo Contract Type of contract: executory Indefinite Terms: Terms of inspection.

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

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

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

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

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

Procedure: The lessor denied the making of an agreement. holding that the letters between the lessee and lessor did not constitute a completed agreement to lease. forming in substance a lease of the aforementioned premises. terms to be mutually agreed upon. Issues: Was the lower court correct in reversing a judgment for the lessee. 434. The lessor agreed that he would give a lease. 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. Holding: Yes. the lessor sent another letter to the lessee. Policy rationale: . forming in substance a lease of the aforementioned premises. saying that the lease could not be made. the lessor accepted it. The trial court entered judgment for the lessee and awarded damages for the lessor’s The lessor appealed.43/107 Case name & citation: Mayer v. 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. given that the lessor declines to make the lease and the parties do not mutually agree upon the alterations to be made? Result on appeal: Affirmed. holding that the letters between the lessee and lessor did not constitute a completed agreement to lease. 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. But he was under no obligation to agree upon such plans. the lower court was correct in reversing a judgment for the lessee. The same day he received the offer. then after receiving advice on from his counsel. 119 N. 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.250 a year after certain alterations were made. McCreery. provided he and the lessee should subsequently agree upon plans for alterations to be made.E. N.Y. There was only an agreement to agree. given that the lessor declines to make the lease and the parties do not mutually agree upon the alterations to be made. The lessee appeals. The lessor subsequently sold the property in question.

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

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

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

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

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

holding that the first cause of action set up an enforceable special contract. awarding plaintiff for the reasonable value of his services. 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 trial court erred in refusing to dismiss the complaint. The defendant did this. The trial court denied the defendant’s motion. The trial court also denied this motion. which were then approved by the commission. Plaintiff also alleged that he rendered service to the defendant that were reasonably worth $10.000 of which only $200 had been paid. 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 there is nothing in the contract which fixes the amount of the commissions to be divided. or anything in its terms to define what would be a fair division of the commissions. The trial court entered judgment for the plaintiff and awarded damages. 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. 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. (2) Yes. but charged the jury solely upon the first cause of action. Issues: (1) Did the trial court err in refusing to dismiss the complaint. 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. The jury returned a verdict for the plaintiff in the amount of the value of services rendered. Plaintiff drew plans and designs for the building without any material assistance from the defendant. the defendant moved to dismiss the first cause of action. Statement of facts: The defendant was employed as an architect to design a public building and to submit the plans for the building to a commission for approval. The trial court denied the defendant’s motion. Defendant appeals. holding that the first cause of action set up an enforceable special contract.49/107 Case name & citation: Bluemner v. 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. given that the only testimony as to the value of the services actually . given that there is nothing in the contract which fixes the amount of the commissions to be divided. given that the only testimony as to the value of the services actually rendered was the opinion of the plaintiff himself. awarding plaintiff for the reasonable value of his services. Holding: (1) Yes. At the close of the plaintiff’s case. Before testimony was offered. Procedure: Plaintiff filed 2 causes of action against the defendant. but his plans and designs were rejected by the commission as improper and unfit. The defendant moved for a new trial. the trial court erred in entering the jury’s verdict. the defendant moved again to dismiss the first cause of action.

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

” 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. 1903 and to recover damages because of the breach of an employment contract under which he was employed.58. There is not evidence of when this agreement was made. P claims. he had the understanding that the entire balance minus about $5. In April 1903 the P entered in a contract of employment which provided that P “agrees to sell for the term of 5 yrs. according to P. the party of the first part agrees to guarantee the payment of all sales of goods made by him.. and P on the ground that he did not recover enough. 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. who found a verdict for the P. From May 1901 to April 1903.79 to D. P again asked for his commissions when they amounted to $6. refused to give him any orders. 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. The Appellate Division of the Supreme Court affirmed the trial court’s judgement. did not impose a duty on the D to employ P for five years. Both P and D appeal. P ceased to buy paint from D and became its agent under a contract to serve for commission.19 and again the D refused to pay them and.51/107 Case name & citation: Moran v. In September 1903 P asked for said commissions and was told it was being applied in the reduction of the residue of his debt. 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. Procedure: The trial judge dismissed the cause of action for damages on ground that the contract. by the sale of its goods. the P paid D on account of the old debt $5. The cause of action for commissions was submitted to the jury.249. D’s super assured P that if he would keep track of the bad goods and try to reclaim the trade. . The D denies ever saying anything to give P this understanding. D on the ground that P should not have recovered anything. 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.000. Standard Oil Co. there was no agency between the two parties. 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.. from the date hereof . though imposing a duty on the P to serve for five years.200 or $5.650.” and “In Consideration of the commissions inbefore provided to be paid by the party of the second part.447. The P made a claim of 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. At that time he had earned commissions of about $4. the D would make it right with him and repay him for any loss. Before this agreement was had. P owed a balance of $27.300. would be cancelled to compensate him for the loss which he had suffered. and the D listened in silence. which is all P said he owed. Statement of facts: In May 1901. respectively. but also agreed to pay him commissions on the sales of said goods? Result on appeal: Reversed. By July 1903.

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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.

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

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

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

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

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

60/107 Case name & citation: Oscar Schlegel Manufacturing Co. It bought only for retailing to the trade and did not manufacture or use any of these articles in its own business. P took advantage of the fixed price and D subsequently did not perform K. Issues: Was the trial court correct in rendering judgment for the plaintiff and awarding damages. holding that the K was mutual and enforceable and that D had no right to limit the amount which P should receive under the K. The other damage sustained by P pursuant to D’s breach brought P’s damages up to a total of $6. 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. were concededly well known to D. This agreement was accepted in writing by P and concededly constitutes a contract between them. D drafted the contract and P signed it.000 lbs.000 lbs). This method of doing business. Between October 30th and December 26th.000 lbs of this glue and as it could no longer be bought on the open market it lost its profits on such sales. 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. 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. to which it had sold goods as far back as 1910. Nor did any question arise as to the meaning or validity of the K for the year 1916.431. and deliveries would be made to P per P’s orders during the year. handling glues.28. P in anticipation of the performance of the contract had sold 42. 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. P ordered an aggregate of 126. 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. The average for January to September was a little less than 5. evidenced by orders from its customers were filled without question during that year. which had therefore done business under the same system with P. . Doctrinal rationale: A rising mkt could have been guarded against by D by inserting in the K a clause fixing the maximum amt. the good faith of the orders. P ordered the delivery pursuant to the contract of 79. Instead of repudiating the the K. the trial court was correct in rendering judgment for the plaintiff and awarding damages. 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. v. P was a jobber exclusively. 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. which P might be entitled to receive thereunder. 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. No question arose between the parties as to the meaning of the K during the year 1915 and P’s requirements. 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. and the meaning of the term “requirements” as used in the K. or object to. D never repudiated K or disavow the same. shellacs paints and chemicals. or question. In October through December.891 lbs of glue which P needed to meet its requirements and the D did not deliver the same. 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.100 pounds. per lb.

Why should the court step in and protect parties that could protect themselves . . Class Notes .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. They entered upon this K with their eyes open to all the conditions existing. .P didn’t bind himself to anything explicitly in the K. or which might possibly arise.“requirements” is too indefinite. However.Arguments .If D had considered the idea that the mkt price would increase he might have protected himself in K. D was the one that drafted the K . 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. 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.Lack of mutuality .

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

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

Appellate Division reversed the trail court’s decision and granted D’s motion fro judgment on the pleadings. 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 . when in fact it had gotten 500 pcs which it withheld. Procedure Below: D moved for judgment on the pleadings. but only delivered 16 additional pcs.Close to Wakeman v. P exercising its option demanded as much more as D could get. 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. saying that it couldn’t get anymore. M. D confirmed the exercise of the option. The privilege to order more is coupled with the promise and obligation to accept a stated minimum. . Inc. D is bound unless its promise is to be ignored as meaningless.Finding out how things work in facts and apply it in legality . Lurie Woolen Co. v. but the court still found a contract. 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. P appeals. Doctrinal Reasoning: There was no lack of consideration for the concession of an option. Class Notes Buries United Press NOTE: Policy driven case . 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. D withheld 500 pcs. Wheeler: No definite terms. by applying law in a way that best fits the way the business world actually operates.64/107 Case Name: Heyman Cohen & Sons. alleging that upon exercise of this privilege. 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. D appealed.02½ per yard and P was given the privilege to confirm more of the good if D could get more. Holding: Yes. Indefiniteness must reach the point where construction becomes futile. The 200 pcs were delivered and paid for. Trial court denied D’s motion. Additional Points: (Dicta) Cardozo limits the decision in Schlegel by narrowing its scope and distinguishing it from the instant case.

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

66/107

- 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.

68/107

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

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

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

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

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

There may be a breach of implied warranty. it is independent of negligence. its warranties may be enforced by plaintiff. that contained a dead mouse. Proof of negligence is unnecessary for recovery in such a suit. 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. nor infant had privity.74/107 Case Name & SoC Blessington v. Policy driven case. some showing of negligence. and as a matter of law. a tortious act. incidentally. 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. the contract breached is not merely one to use due care. Bowman v. Great Atlantic & Pacific Tea Co. the plaintiff wife may recover for said breach. 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. or be associated with. . Mouren v. in this case. but it is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought. McCrory Stores Corp. bought by the buyer from the grocer. alleging that the residue from grinding of pork had been allowed to mix with the beef they had purchased. who shared expenses with the buyer for food. A prima facie case has been established for a breach of implied warranty. it was the husband. Where the contract is negotiated by another as agent of plaintiff. and so such a cause of action gets the benefit of the 6 year limit as being on an implied contract obligation or liability. Holding/Rule Although a breach of a duty may rest upon. There may be an implied warranty Moves away from privity requirement Agency theory is not confined to husbands and wives. The court did not dismiss the claim for lack of privity. An individual may act as both principle and agent. Great Atlantic & Pacific Tea Co. but court did not agree that the action should have been bought in negligence. Victim. While an action for breach of implied warranty of fitness may involve. alleging that because the she and the buyer shared expenses. and that was the source of their illness. Significance on the Law NOTE: wife was the purchaser. Action bought by husband and wife against the retailer to recover damages for breach of warranty and for negligence.

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

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

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

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

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

In the character of personal property. does not impliedly warrant that water to be wholesome and fit for human consumption? RoA: Affirmed. R. to the seller of the water the particular purpose for which the water is required. Either expressly or by implication.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. there is no implied warranty against latent defects even if the vendor knows the purposes for which the goods are bought. It is a sale of goods. he is not responsible for latent defects. (Dissent) There was a sale. That the furnishing is without profit is weightless. Unless the vendor is the producer or manufacturer of the articles. 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. but the flowing water of a stream is not susceptible of absolute ownership and admits only a transient usufructuary property. o or when solidified in the form of ice. in the absence of proof of an express warranty or of fraud or deceit upon the part of the seller. Holding: (1) Yes the appellate court erred in holding that the furnishing water through a water pipe to a building there to be used by the inhabitant for compensation is not a sale of goods? (2) Yes. The 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. industrial growing crops. the case does not fall under the statute. The waters are never actually in the possession . or irrigation. City of Mechanicville II PB: Appellate court reversed the trial court’s order overruling the defendant’s demurrer. A dealer does not impliedly warrant against latent defects. Of the water taken the part not used for drinking or human consumption is much greater than that which is taken for consumption.: (Concurrence) The city was not the manufacturer of the article “sold. 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. may be bought and sold like other commodities. goods include all chattels personal other than things in action and money. or irrigation. or when it is supplied through artificial conduits for domestic use. water. and things attached to or forming part of the land under which are agreed to be served before sale or under the contract of sale. The term includes implements. separated from its source or from the body of which it constituted a part. Pnt.” Where the vender is not the manufacturer and the purchaser knows this fact. Sale of Goods: Under the statute.: The supply of water through pipes for compensation is a sale of goods under the statute. does not impliedly warrant that water to be wholesome and fit for human consumption? Doc. as when it is supplied through artificial conduits for domestic use. and cause it to appear that he relies as to the wholesomeness of the water on the seller’s skill or judgment. 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. Case Name: Canavan v. however.

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

82/107 Case Name: Horton v. The second cause is for negligence. 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. 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. it expressed to the plaintiff its approval of lead pipe.: 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. Holding: Yes. The water was not to be drunk at the water gate. before the water could get into the house to be drunk. 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. 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. known to and approved by the defendant. Facts: Buyer was poisoned by water furnished by seller through lead pipes chosen by the buyer of three options presented by seller. 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 it may also be assumed that the title passed at the water gate and not at the meter. tin or lead. But those assumptions are not decisive. 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. 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. At the trial the jury returned a verdict for the seller on each cause. 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 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. . Doc. 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. R. the judge instructed the jury that the water was sold and delivered by the defendant at the water gate at the property line. PB: The complaint contained 2 causes of action. On the first count for breach of warranty. 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. and not at any later time. The purpose for which the defendant warranted the water to be reasonably fit was not merely drinking. 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.

Compare and contrast with Canavan. Class Notes: . .83/107 If there is a warranty under the circumstances of this case. it is a warranty that when water becomes the property of the plaintiff it will be reasonably fit to be conducted through one hundred forty-five feet of lead pipe into the house and then to be drunk.

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

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

. 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.

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

Facts: The plaintiff was employed as a waitress in a lunchroom. and unless there be privity of contract. Narrows implied warranty doctrine. because privity of contract does not exist between the seller and such 3rd persons. so why not pass this cost on to the manufacturer. is not liable to 3rd person. 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. as part of her lunch. Pnt. Drake Brothers Co. Holding: Yes. Pol.: (Dicta) Exception: It may be assumed that thunder certain facts and conditions the manufacturer of an article would be liable to a third person. 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. 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. a manufacturer or seller of food or other articles of personal property.88/107 Chysky v. Case seems to go against the policy rationale for implied warranty. (Dicta) An action may be maintained to recover damages caused by breach of an implied warranty in the sale of food to a consumer for immediate consumption. R. Add. stuck in her gum. upon a theory of implied warranty that cake was fit for human consumption. But the recovery in this case was not based upon the negligence of the defendant. The defendant appealed. The defendant appeals. Krum). if the article sold were negligently prepared or manufactured (Macpherson v.: 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. a piece of cake which had been made and sold to the owner by the defendant. Buick). baked into the cake in a way that it could not be discovered by inspection.: Limiting consumer protection. The appellate court unanimously affirmed. who have no contractual relations with him. . While she was eating it a nail. She received from her employer one day. R. even though no contractual relationship exists between them. 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. under implied warranty. PB: The jury returned a verdict in favor of the plaintiff and the trial court entered the jury verdict. Her employer paid her $30 a week and furnished her room and board. however. Plaintiff limited her right to recover to breach of warranty. there can be no implied warranty. which became infected as to necessitate the removal of three of her teeth.

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

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

91/107 Vaccaro v. thus there was no privity of K between her and the manufacturer. who acted as his agent bought a loaf of bread from said grocer that had a pin concealed in it which hurt his mouth. She lived with her husband. PB: This action was tried and a verdict was rendered by the jury in favor of the plaintiff. 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. v. there is the presumption that the moral and legal obligation on the part of the husband to support his wife and family is being carried out. Implied warranty does not extend to the wife because was acting as an agent for her husband. an implied warranty did not extend to the married woman. Pol R: Protecting the Consumer Add. Prudential Condensed Milk Co. Inc. Aron & Co. 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. Facts: P bought and paid for the milk. wrapped in a sealed package as it had come from the baker of the brand. the plaintiff recover under an implied warranty of merchantability. through his wife. which was for the sole use of herself and her infant child. The salesman gave her what she asked for. 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. Progressive Grocery Stores. Sills. . D moved to set aside the jury verdict and to dismiss the complaint. Ryan v. Relies in the precedent set in J. Pt. Holding: No. 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. 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. 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. Issue: May the plaintiff recover under an implied warranty of merchantability? RoA: Affirmed Holding: Yes. Doc R: In the absence of any evidence to the contrary.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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