13

in secret jest by the defendants, in either event it constituted a binding contract

of sale between the parties.
Defendants contend further, however, that even though a contract was made,
equity should decline to enforce it under the circumstances. These circumstances
have been set forth in detail above. They disclose some drinking by the two
parties but not to an extent that they were unable to understand fully what they
were doing. There was no fraud, no misrepresentation, no sharp practice and
no dealing between unequal parties. The farm had been bought for $11,000 and
was assessed for taxation at $6,300. The purchase price was $50,000. Zehmer
admitted that it was a good price. There is in fact present in this case none of
the grounds usually urged against specic performance.
Specic performance, it is true, is not a matter of absolute or arbitrary right,
but is addressed to the reasonable and sound discretion of the court. First Nat.
Exchange Bank of Roanoke v. Roanoke Oil Co., supra, 192 S.E. at page 771. But
it is likewise true that the discretion which may be exercised is not an arbitrary
or capricious one, but one which is controlled by the established doctrines and
settled principles of equity; and, generally, where a contract is in its nature and
circumstances unobjectionable, it is as much a matter of course for courts of
equity to decree a specic performance of it as it is for a court of law to give
damages for a breach of it. Bond v. Crawford, 69 S.E.2d 470, 475.
The complainants are entitled to have specic performance of the contract
sued on. The decree appealed from is therefore reversed and the cause is re-
manded for the [84 S.E.2d 523] entry of a proper decree requiring the defendants
to perform the contract in accordance with the prayer of the bill.
Reversed and remanded.

***

Leonard v. Pepsico, Inc.

88 F.Supp.2d 116 (1999)
KIMBA M. WOOD, District Judge.
Plainti brought this action seeking, among other things, specic perfor-
mance Specic Performance is a remedy available at equity. The plainti asks
the court to enforce the agreement instead of ask the court for damages. of an
alleged oer of a Harrier Jet, featured in a television advertisement for defen-
dant's "Pepsi Stu" promotion. Defendant has moved for summary judgment
1
pursuant to Federal Rule of Civil Procedure 56 For the reasons stated below,
defendant's motion is granted.

1 Rule 56. Summary Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for
summary judgment, identifying each claim or defense  or the part of each claim or defense
 on which summary judgment is sought. The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. The court should state on the record the reasons for
granting or denying the motion.
(b) Time to File a Motion. Unless a dierent time is set by local rule or the court orders
 14

This case arises out of a promotional campaign conducted by defendant, the

producer and distributor of the soft drinks Pepsi and Diet Pepsi. The promotion,
entitled "Pepsi Stu," encouraged consumers to collect "Pepsi Points" from
specially marked packages of Pepsi or Diet Pepsi and redeem these points for
merchandise featuring the Pepsi logo. (See id. ¶¶ 4, 8.) Before introducing
the promotion nationally, defendant conducted a test of the promotion in the
Pacic Northwest from October 1995 to March 1996. A Pepsi Stu catalog
was distributed to consumers in the test market, including Washington State.

otherwise, a party may le a motion for summary judgment at any time until 30 days after
the close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, adavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object
that the material cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Adavits or Declarations. An adavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the aant or declarant is competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by adavit or
declaration that, for specied reasons, it cannot present facts essential to justify its opposition,
the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain adavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an
assertion of fact or fails to properly address another party's assertion of fact as required by
Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials  including the facts
considered undisputed  show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to
respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party;or
(3) consider summary judgment on its own after identifying for the parties material facts
that may not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief
requested by the motion, it may enter an order stating any material fact  including an
item of damages or other relief  that is not genuinely in dispute and treating the fact as
established in the case.
(h) Adavit or Declaration Submitted in Bad Faith. If satised that an adavit or decla-
ration under this rule is submitted in bad faith or solely for delay, the court  after notice
and a reasonable time to respond  may order the submitting party to pay the other party
the reasonable expenses, including attorney's fees, it incurred as a result. An oending party
or attorney may also be held in contempt or subjected to other appropriate sanctions.
 15

Plainti is a resident of Seattle, Washington. While living in Seattle, plainti

saw the Pepsi Stu commercial that he contends constituted an oer of a Harrier
Jet.
Because whether the television commercial constituted an oer is the central
question in this case, the Court will describe the commercial in detail. The com-
mercial opens upon an idyllic, suburban morning, where the chirping of birds in
sun-dappled trees welcomes a paperboy on his morning route. As the newspaper
hits the stoop of a conventional two-story house, the tattoo of a military drum
introduces the subtitle, "MONDAY 7:58 AM." The stirring strains of a martial
air mark the appearance of a well-coied teenager preparing to leave for school,
dressed in a shirt emblazoned with the Pepsi logo, a red-white-and-blue ball.
While the teenager condently preens, the military drumroll again sounds as
the subtitle "T-SHIRT 75 PEPSI POINTS" scrolls across the screen. Bursting
from his room, the teenager strides down the hallway wearing a leather jacket.
The drumroll sounds again, as the subtitle "LEATHER JACKET 1450 PEPSI
POINTS" appears. The teenager opens the door of his house and, unfazed by
the glare of the early morning sunshine, puts on a pair of sunglasses. The drum-
roll then accompanies the subtitle "SHADES 175 PEPSI POINTS." A voiceover
then intones, "Introducing the new Pepsi Stu catalog," as the camera focuses
on the cover of the catalog.
The scene then shifts to three young boys sitting in front of a high school
building. The boy in the middle is intent on his Pepsi Stu Catalog, while the
boys on either side are each drinking Pepsi. The three boys gaze in awe at
an object rushing overhead, as the military march builds to a crescendo. The
Harrier Jet is not yet visible, but the observer senses the presence of a mighty
plane as the extreme winds generated by its ight create a paper maelstrom in a
classroom devoted to an otherwise dull physics lesson. Finally, [119] the Harrier
Jet swings into view and lands by the side of the school building, next to a
bicycle rack. Several students run for cover, and the velocity of the wind strips
one hapless faculty member down to his underwear. While the faculty member
is being deprived of his dignity, the voiceover announces: "Now the more Pepsi
you drink, the more great stu you're gonna get."
The teenager opens the cockpit of the ghter and can be seen, helmetless,
holding a Pepsi. "[L]ooking very pleased with himself," (Pl. Mem. at 3,) the
teenager exclaims, "Sure beats the bus," and chortles. The military drumroll
sounds a nal time, as the following words appear: "HARRIER FIGHTER
7,000,000 PEPSI POINTS." A few seconds later, the following appears in more
stylized script: "Drink Pepsi  Get Stu." With that message, the music and
the commercial end with a triumphant ourish.
Inspired by this commercial, plainti set out to obtain a Harrier Jet. Plainti
explains that he is "typical of the `Pepsi Generation' ... he is young, has an
adventurous spirit, and the notion of obtaining a Harrier Jet appealed to him
enormously." Plainti consulted the Pepsi Stu Catalog. The Catalog features
youths dressed in Pepsi Stu regalia or enjoying Pepsi Stu accessories, such as
"Blue Shades" ("As if you need another reason to look forward to sunny days."),
"Pepsi Tees" ("Live in `em. Laugh in `em. Get in `em."), "Bag of Balls" ("Three
 16

balls. One bag. No rules."), and "Pepsi Phone Card" ("Call your mom!"). The
Catalog species the number of Pepsi Points required to obtain promotional
merchandise. The Catalog includes an Order Form which lists, on one side,
fty-three items of Pepsi Stu merchandise redeemable for Pepsi Points (the
"Order Form")). Conspicuously absent from the Order Form is any entry or
description of a Harrier Jet. (See id.) The amount of Pepsi Points required to
obtain the listed merchandise ranges from 15 (for a "Jacket Tattoo" ("Sew `em
on your jacket, not your arm.")) to 3300 (for a "Fila Mountain Bike" ("Rugged.
All-terrain. Exclusively for Pepsi.")). It should be noted that plainti objects
to the implication that because an item was not shown in the Catalog, it was
unavailable.
The rear foldout pages of the Catalog contain directions for redeeming Pepsi
Points for merchandise. (See Catalog, at rear foldout pages.) These directions
note that merchandise may be ordered "only" with the original Order Form.
(See id.) The Catalog notes that in the event that a consumer lacks enough Pepsi
Points to obtain a desired item, additional Pepsi Points may be purchased for
ten cents each; however, at least fteen original Pepsi Points must accompany
each order. (See id.)
Although plainti initially set out to collect 7,000,000 Pepsi Points by con-
suming Pepsi products, it soon became clear to him that he "would not be able
to buy (let alone drink) enough Pepsi to collect the necessary Pepsi Points fast
enough." Reevaluating his strategy, plainti "focused for the rst time on the
packaging materials in the Pepsi Stu promotion," and realized that buying
Pepsi Points would be a more promising option. (See id.) Through acquain-
tances, plainti ultimately raised about $700,000. (See id. ¶ 6.) B. Plainti 's
Eorts to Redeem the Alleged Oer
On or about March 27, 1996, plainti submitted an Order Form, fteen
original Pepsi Points, and a check for $700,008.50. Plainti appears to have
been represented by counsel at the time he mailed his check; the check is drawn
on an account of plainti 's rst set of attorneys. (See Defendant's Notice of
Motion, Exh. B (rst).) At the bottom of the Order Form, plainti wrote in
"1 Harrier Jet" in the "Item" column and "7,000,000" in the "Total Points"
column. (See id.) In a letter accompanying his submission, [120] plainti stated
that the check was to purchase additional Pepsi Points "expressly for obtaining
a new Harrier jet as advertised in your Pepsi Stu commercial."
On or about May 7, 1996, defendant's fulllment house rejected plainti 's
submission and returned the check, explaining that:

The item that you have requested is not part of the Pepsi Stu
collection. It is not included in the catalogue or on the order form,
and only catalogue merchandise can be redeemed under this pro-
gram.
The Harrier jet in the Pepsi commercial is fanciful and is simply
included to create a humorous and entertaining ad. We apologize for
any misunderstanding or confusion that you may have experienced
and are enclosing some free product coupons for your use.
 17

Plainti 's previous counsel responded on or about May 14, 1996, as follows:

Your letter of May 7, 1996 is totally unacceptable. We have

reviewed the video tape of the Pepsi Stu commercial ... and it
clearly oers the new Harrier jet for 7,000,000 Pepsi Points. Our
client followed your rules explicitly....
This is a formal demand that you honor your commitment and
make immediate arrangements to transfer the new Harrier jet to
our client. If we do not receive transfer instructions within ten (10)
business days of the date of this letter you will leave us no choice
but to le an appropriate action against Pepsi....

This letter was apparently sent onward to the advertising company responsible
for the actual commercial, BBDO New York ("BBDO"). In a letter dated
May 30, 1996, BBDO Vice President Raymond E. McGovern, Jr., explained to
plainti that:

I nd it hard to believe that you are of the opinion that the
Pepsi Stu commercial ("Commercial") really oers a new Harrier
Jet. The use of the Jet was clearly a joke that was meant to make
the Commercial more humorous and entertaining. In my opinion, no
reasonable person would agree with your analysis of the Commercial.

On or about June 17, 1996, plainti mailed a similar demand letter to defen-
dant. . .
Once a motion for summary judgment is made and supported, the non-
moving party must set forth specic facts that show that there is a genuine
issue to be tried.
2 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
(1986). Although a court considering a motion for summary judgment must
view all evidence in the light most favorable to the non-moving party, and must
draw all reasonable inferences in that party's favor, see Consarc Corp. v. Marine
Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993), the nonmoving party
"must do more [122] than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). If, based on the submissions to the court, no rational
fact-nder could nd in the non-movant's favor, there is no genuine issue of
material fact, and summary judgment is appropriate. See Anderson, 477 U.S.
at 250.
The parties disagree as to whether the contract could have been completed by
plainti 's lling out the Order Form to request a Harrier Jet, or by defendant's
acceptance of the Order Form. If the commercial constituted an oer, then the
last act necessary to complete the contract would be plainti 's acceptance, in
the state of Washington. If the commercial constituted a solicitation to receive

2 This is an important procedural tool that ought to be understood at the outset. A ruling
upon a motion to dismiss in one sided The Court accepts the allegations to be true. and has
at the crux of the, the Court's acceptance of the non-moving parties side. The court then
decides upon a probability whether or not a genuine issue of law exists.
 18

oers, then the last act necessary to complete the contract would be defendant's
acceptance of plainti 's Order Form. . .
The general rule is that an advertisement does not constitute an oer. The
Restatement (Second) of Contracts explains that:

Advertisements of goods by display, sign, handbill, newspaper,

radio or television are not ordinarily intended or understood as oers
to sell. The same is true of catalogues, price lists and circulars, even
though the terms of suggested bargains may be stated in some detail.
It is of course possible to make an oer by an advertisement directed
to the general public (see Ÿ 29), but there must ordinarily be some
language of commitment or some invitation to take action without
further communication. Restatement (Second) of Contracts Ÿ 26
cmt. b (1979).
Similarly, a leading treatise notes that:
It is quite possible to make a denite and operative oer to buy
or sell goods by advertisement, in a newspaper, by a handbill, a
catalog or circular or on a placard in a store window. It is not
customary to do this, however; and the presumption is the other
way. ... Such advertisements are understood to be mere requests
to consider and examine and negotiate; and no one can reasonably
regard them as otherwise unless the circumstances are exceptional
and the words used are very plain and clear. Arthur Linton Corbin
& Joseph M. Perillo, Corbin on Contracts Ÿ 2.4, at 116-17 (rev.
ed.1993) (emphasis added)

An advertisement is not transformed into an enforceable oer merely by a poten-

tial oeree's expression of willingness to accept the oer through, among other
means, completion of an order form. In Mesaros v. United States, 845 F.2d
1576 (Fed.Cir.1988), for example, the plaintis sued the United States Mint for
failure to deliver a number of Statue of Liberty commemorative coins that they
had ordered. When demand for the coins proved unexpectedly robust, a number
of individuals who had sent in their orders in a timely fashion were left empty-
handed. See id. at 1578-80. The court began by noting the "well-established"
rule that advertisements and order forms are "mere notices and solicitations for
oers which create no power of acceptance in the recipient." Id. at 1580. The
spurned coin collectors could not maintain a breach of contract action because
no contract would be formed until the advertiser accepted the order form and
processed payment.
The exception to the rule that advertisements do not create any power of
acceptance in potential oerees is where the advertisement is "clear, denite,
and explicit, and leaves nothing open for negotiation," in that circumstance, "it
constitutes an oer, acceptance of which will complete the contract." Lefkowitz
v. Great Minneapolis Surplus Store, 86 N.W.2d 689, 691 (1957). In Lefkowitz,
defendant had published a newspaper announcement stating: "Saturday 9 AM
Sharp, 3 Brand New Fur Coats, Worth to $100.00, First Come First Served $1
Each." Id. at 690. Mr. Morris Lefkowitz arrived at the store, dollar in hand,
 19

but was informed that under defendant's "house rules," the oer was open to
ladies, but not gentlemen. See id. The court ruled that because plainti had
fullled all of the terms of the advertisement and the advertisement was specic
and left nothing open for negotiation, a contract had been formed.
The present case is distinguishable from Lefkowitz. First, the commercial
cannot be regarded in itself as suciently denite, because it specically re-
served the details of the oer to a separate writing, the Catalog.[6] The com-
mercial itself made no mention of the steps a potential oeree would be re-
quired to take to accept the alleged oer of a Harrier Jet. The advertisement in
Lefkowitz, in contrast, "identied the person who could accept." Second, even
if the Catalog had included a Harrier Jet among the items that could be ob-
tained by redemption of Pepsi Points, the advertisement of a Harrier Jet by
both television commercial and catalog would still not constitute an oer.
The Court nds, in sum, that the Harrier Jet commercial was merely an
advertisement. The Court now turns to the line of cases upon which plainti
rests much of his argument.

***

RAFFLES v. WICHELHAUS (1864)

Court of the Exchequer 2 Hurl. & C. 906
Declaration. For that it was agreed between the plainti and the defendants,
to wit, at Liverpool, that the plainti should sell to the defendants, and the
defendants buy of the plainti, certain goods, to wit, 125 bales of Surat cot-
ton, guaranteed middling fair merchant's dhollorah, to arrive ex Peerless from
Bombay; and that the cotton should be taken from the quay, and that the de-
fendants would pay the plainti for the same at a certain rate, to wit, at the
rate of 17.25 d. per pound, within a certain time then agreed upon after the
arrival of said goods in England. Averments: that the said goods did arrive by
said ship from Bombay to England, to wit, at Liverpool, and the plainti was
then and there ready and willing and oered to deliver that said goods to the
defendants, etc. Breach: that the defendants refused to accept the said goods
or pay the plainti for them. Plea. That the said ship mentioned in the said
agreement was meant and intended by the defendant to be the ship called the
Peerless, which sailed from Bombay, to wit, in October; and that the plainti
was not ready and willing, and did not oer to deliver to the defendants any
bales of cotton which arrived by the last-mentioned ship, but instead thereof
was only ready and willing, and oered to deliver to the defendants 125 bales of
Surat cotton which arrived by another and dierent ship, which was also called
the Peerless, and which sailed from Bombay, to wit, in December.
Demurrer, and joinder therin. Milward, in support of the demurrer. The
contract was for the sale of a number of bales of cotton of a particular descrip-
tion, which the plainti was ready to deliver. It is immaterial by what ship the