Conditions- Abhores forfeiture-close no bend over backwards Hicks v.

Bush- company merger contingent on funraising—one company merged other didn’t. Perfect tender rule- time of performance hasn’t passed seller can reship performing goods Restatement 154- mistake Material Breach? Elements- pg. 750 restatement first §275 Aticipated Events written in the contract—Force Majeure clause—interperated somewhat broadly. McKinnon v. Benedict P and D entered into an agreement providing that P would help getting a resort business of D off the ground, said help includes a loan, and in return, D promised to cut no trees between D’s camp and P’s property and make no improvements closer to P’s property than the present buildings. When the resort business did not prosper, D decided to add a trailer park and tent camp, and P sued to enjoin construction. Plaintiff Ruby Tuckwiller entered into an agreement to quit her job and care for the aunt of her husband, Metta Hudson Morrison, in exchange for Morrison willing her Morrison’s Corum farm. Morrison made an appointment to have her will changed, but she was hospitalized and eventually died without the will being changed. The will stated that the farm shall be sold and the proceeds to be used for a student loan fund at Davidson College. Plaintiff Black Industries, Inc., contracted with Defendant, George F. Bush, for Defendant to provide certain components at a specified price, which Plaintiff then resold at a significant profit. Oppressive contracts will not be enforced in equity, and restrictions on the use of land are not favored in the law. Any doubt as to the use of real estate should be resolved in favor of the free use of property. In the present case, Plaintiff paid grossly inadequate consideration in exchange for the restrictive covenants on Defendants’ land. Plaintiff gave an interest-free loan, but the total interest foregone by Plaintiff was about $145.00. Further, Plaintiff did very little to generate business as he promised. In order to determine whether a contract is unfair, inequitable, or unconscionable, the transaction is to be viewed prospectively. Plaintiff quit her job and undertook a serious and difficult obligation of unknown duration. Morrison had someone to care for her for life. Viewing the contract in this light, the agreement was fair, not unconscionable, and supported by adequate consideration.

Tuckwiller v. Tuckwiller

Black Industries, Inc. v. Bush

O’Callaghan v. Waller & Beckwith Realty Co. (IL SC 1958)

P injured by LL’s negligence under a lease which exculpated the LL from liability for negligence.

Klar v. H. & M. Parcel Room, Inc.

Left package at parcel room, did not read claim check. Tried to reclaim package and it

A contract is void as against public policy if: (1) it is a contract by the defendant to pay the plaintiff for inducing a public official to act in a certain manner; (2) it is a contract to do an illegal act; or (3) it is a contract that contemplates collusive bidding on a public contract. None of these situations are present here. Further, the contract was entered into between businessmen dealing at arm’s length without any evidence of fraud. Hence, the contract is not void. A lease clause exculpating a LL from liability for his own negligence should be upheld & is not void against public policy. An exculpatory clause is generally enforced ―unless (1) it would be against the settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.‖ Plaintiff argued that the exculpatory clause must be held to be contrary to public policy because a housing shortage caused landlords to have superior bargaining power. However, the Illinois Supreme Court rejected this argument. Plaintiff did not show that she looked for apartments elsewhere or attempted to negotiate with the defendant to modify or eliminate the exculpatory clause. Affirmed. The coupon was meant to serve the purpose of affording means of identifying the

was given to someone else by mistake. Sued for the value of the contents. Check had Contract written on it that could not get recovery more than $25. Trial court granted for nearly $1000.

Graham v. Scissor-Tail. (1990)

Arbitration clause appointed AFM as arbitrator. P was concert promoter.

Carnival Cruise Lines, Inc. v. Shute (US SC 1991) Williams v. WalkerThomas Furniture Co. (US Ct of App DC 1965)

P injured on Ds ship. Forum selection clause on back of tix. Appellee Walker-Thomas Furniture Co., a retailer of furniture, leased items to consumers pursuant to a contract that stated Appellee would retain title of the furniture until the total of the lease payments made equaled the stated value of the piece of furniture, at which time the consumer would own the furniture. Each contract inconspicuously contained a provision stating that if more than one item is purchased the monthly payments shall be applied pro rata among all the items purchased, thereby allowing Appellee to retain title on each piece of furniture longer. P welfare recipients bought freezer (worth $300) for $900. Ps pd $619.98 already. After various other charges, the total purchase price was $1,234.80. At the time of the lawsuit, Plaintiffs had paid $619.88 and still owed $819.81 on the freezer.

parcel left by the bailor. In the mind of the bailor, it did not arise to the dignity of a K. While the defendant bailee should be protected in its legal rights to limit its responsibility, the public should also be safeguarded against imposition. If the bailee wishes to limit its liability for negligence, it must at least show that it has given adequate notice of the special K and that it has received the assent thereto of those with whom it transacts business. K of adhesion containing arbitration clause fell w/in reasonable expectations of P since he was subject to thous of same. BUT it was uncon b/c it would be biased in favor of union member artist. Two Judicially imposed limitations on the enforcement of adhesion Ks. 1.) such a K or provision which does not fall within the reasonable expectations of the weaker or adhering party will not be enforced against him. 2.) a contract or provision even consistent with the reasonable expectations of the parties, will be denied enforcement if it is unduly oppressive or unconscionable. A forum selection clause in a commercial passage K is permissible if it’s fundamentally fair. The defense of Unconscionability to action on a K is judicially recognized. CL rule of caveat emptor modified by 2-302, unequal bargaining position here where P exploited D in uncon K provision. An unreasonable and unconscionable contract, not void for fraud, will be enforced, but the damages will be only what the suing party is equitably entitled to.

Jones v. Star Credit Corp. (NY SC 1969)

Armendariz v. Foundation Health Psychcare Services (CA SC 2000)

P signed employment app which incl arbitration clause compelling arbitration for wrongful termination.

Scott v. Cingular Wireless

Phone K had arbitration clause and class

A purchase price substantially higher than the value of an item can render the sale unconscionable as a matter of law. 2-302 permits a ct to reform a K on the basis of excessive price. Factors include: price to value ratio, financial resources of buyer, knowledge of seller concerning buyer’s situation, relative bargaining position of the parties. The seller knew that the financial resources of the buyers were limited. A court may exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability only where both procedural (‖oppression‖ or ―surprise‖ due to unequal bargaining power) and substantive (‖overly harsh‖ or ―one-sided‖ results) unconscionability are present. Here, signing the arbitration agreement was a condition of employment, and there was no opportunity to negotiate. Further, only the employees are required to arbitrate their wrongful termination claims against the employer; the employer does not have to arbitrate its claims against the employee. Class action waver unconscionable violation of this

primarily bongs and roach clips. By refusing to consider the relevant information furnished by P. Defendant relied exclusively on the opinions of two document examiners that Plaintiff did not author both tests. The implied obligation to act in good faith requires that ―neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. D failed to comply in good faith with its own test security procedures. the evidence revealed that D is in the business of manufacturing drug paraphernalia. enforcing this contract is clearly against public policy. Dalton v. Inc. party may take advantage of another based on superior knowledge of market. Pappagallo shoes gave P an exclusive right to sell Papp. Duty of good faith doesn’t require complete candor. Market Street Assoc v. Bovard v. The contract required D to consider any relevant evidence supplied by P. American Horse Enterprises.action waiver. American Horse Enterprises. USSC gave another store the right to sell the shoes. An established course of performance & dealing b/w parties.. Even though the manufacture of drug paraphernalia is not itself unlawful.C. A ―best efforts‖ clause imposes an obligation to act with good faith in light of one’s own capabilities. Falstaff Brewing Corp. Despite substantial evidence that Plaintiff took both tests. A clause that unilaterally and severely limits the remedies of only one side is substantially unconscionable under Washington law for denying any meaningful remedy. BUT a party may not intentionally exploit the other party’s oversight of an important fact. thereby breaching its contract with P.C. who signed several promissory notes in connection with the sale. the position of the defendant is the more . At will exclusivity K must be given a reasonable to before termination so that other party can recoup expenses. Eastern Airlines v. P is entitled to SP of Ds promise to consider Ps evidence in good faith. P was sick first time he took test second time was way better. It was an at will agreement and a reasonable time had passed before USSC took away the exclusivity. Frey P allegedly deliberately failed to notify D of an obscure clause that could result in forfeiture of Ds property. United States Shoe Corp. Sold to USSC. Determining whether a contract is in violation of public policy involves a degree of subjectivity. this includes a promise not to act arbitrarily or irrationally. used to smoke marijuana. Evidence indicates practice is established in the industry. means ―honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade. Inc. During the course of the trial. Gulf Oil D claims Ps practice of fuel freighting is a breach of K. New Doctrine In Pari Delicto states policy to protect the public and foster fair and honest competition. Educations Testing Service (NY Ct of App 1995) ETS allowed to cancel test score if it found reason to question validity of the score after offering test-taker 5 options to respond to Ds concerns. shoes. v. P sued when D failed to pay on the notes. Inc. ―Good faith‖ between merchants under the U. All Ks must be performed in good faith. This class action waiver effectively prevents one party to the contract from pursuing valid claims effectively exculpating the drafter from potential liability for small claims. to James Ralph. A refusal to enforce the contract will put manufacturers of drug paraphernalia on notice that the judicial system will not protect them.‖ Diff b/w superior market info & taking advantage of K partner. P alleged D breached its K’l obligation to use its “best efforts to promote & maintain a high vol of sales.” Lockewill. which is also an established usage of trade. P sold D corporation.‖ When a contract states that one shall exercise discretion. becomes part of the terms of the K when not objected to. A K’l provision obligating one to use its ―best efforts‖ to promote & maintain a high vol of sales of a certain product is breached by a policy which emphasizes profit w/o fair consideration of the effect on sales vol. nor will a court enforce a contract to undertake legal activities if they are contrary to public policy. Implied good faith requirement. Bloor v. no matter how widespread. No writing and no duration. The doctrine is this: In circumstances of equal fault. A court will not enforce a contract to undertake illegal activities. Years passes and Papp.

In order for a contract to be voidable by reason of illegality. Defendant Rivergate Corp.O. P had ample opportunity to obtain an attorney.. D’s attorney presented P with a prenup limiting her recovery in the case of divorce to $25. because she couldn’t obtain counsel without postponing the wedding. Concrete Corp. Cannot sue. P was to provide shipping instructions at least 2 wks prior to delivery of rice. While it may not always seem an honorable thing to do. she is bound by its terms. Even if the agreement did not embody a reasonable or good bargain. the illegal conduct must be that which has been contracted to be performed. The couple divorced. Ambiguous provisions in subKs which don’t expressly shift the risk of pmt failure by owner to Simeone v. Employees must not be forced to weigh job security against protecting the public. If the condition precedent is not fulfilled. Concrete Corp.O. P not required to accept Ds compensation for failure of condition. The three-year restraint of trade was a partially unreasonable restraint of trade. An undue hardship was not imposed on P. P asserted that the prenup was procured under duress. A contract that is legal on its face and does not call for unlawful conduct in its performance is not voidable simply because it resulted from an antitrust conspiracy. River Brand Rice Mills (2d Cir 1958) Peacock Constr. she agreed not to compete with D for a period of three years after she left its employ. Rivergate Corp. D fired him. On the eve of their wedding. which is an act or event. v. and D refused to pay alimony. for damages resulting from D’s wrongful termination of P. Balla v. All attorneys know or should know in their professional career that at certain times they will have to forgo economic gains in order to protect the integrity of the legal profession. P claimed that he was terminated in retaliation for his efforts to make sure D complied with state labeling and licensing laws. Gambro compelling.” P worked for D and as part of her contract for employment. D was harmed. One year is sufficient.. Rosen (CT SC 1972) Internatio-Rotterdam v. v. The court emphasized that the best interests of the child should settle custody disputes. P said he would do anything to stop D. Told D and D decided he would try and sell them anyways. P sued for retaliatory discharch. a party to an illegal K is permitted to set up the illegality as a defense even though the party may be alleging his or her own turpitude. as general contractor. Ignorance as to the terms of the agreement is not a defense to enforcement. (2) does not impose undue hardship on the employee.000. but Defendant failed to pay on the ground that the contract was an integral feature of an extortion and labor bribery operation known as the “Club. Hopper v. Teddy’s Frosted Foods P sued the D. to perform an illegal act and needed the job for his living purposes. Plaintiff fully performed. for Plaintiff to construct a concrete superstructure. D failed to pay sub (P) claiming Owner paying was a condition precedent. The restriction was for only a five-mile radius and only for small animal practice. D unable to obtain mortgage. as part of the job. invoking the prenup. must be literally complied with. K is not enforceable. which she signed without her own counsel or explanation from D’s attorney of the legal rights surrendered. X. P purchased a competing clinic and began directly competing with D. A condition precedent is a fact or event which the parties intend must exist or take place before performance is due. An employee at will may have an action for wrongful discharge if in the event he was required. not contracts. D canceled K.X. Luttinger v. P a lawyer discovered items did not comply with FDA regulations. P and D were engaged to be married. P signed the prenup without seeking counsel or asking for explanation. An antitrust defense will prevent the enforcement of a contract where the contracted activity is the conduct that violates the antitrust laws. The public will not suffer injury.L. P offered to compensate for failure of the condition precedent. the parties are bound by their agreements. Since she signed the agreement. Obtaining mortgage w/interest rate was condition precedent to K. A condition. P didn’t. A covenant not to compete is valid if it (1) is no greater than necessary to protect the employer. Here. Surrogacy contracts are void as against public policy. The parties had discussed the prenup for about six months prior to the wedding day. subcontracted with Plaintiff. All Pet Animal Clinic Sheets v. Notification was a condition precedent to D’s duty to ship. and (3) is not injurious to the public. Modern Air Conditioning .L. Simeone In the Matter of BABY M A man and woman entered into a surrogacy contract. but the woman did not want to give the baby up after she gave birth. other than a lapse of time.

McKenna v. P sued saying D still had to deliver biz. Supposed to be reading pipe. Vernon (PA 1917) Hicks v. Must expressly state that condition. Even though the D were not satisfied with the house. which he didn’t do. D refused to finish paying. Preston (King’s Bench 1773) Stewart v. Cranage (MI SC 1878) P contracted to make a portrait for D. the work must be substantially performed before payment can be demanded. There are three types of covenants: (1) mutual and independent – each party can sue the other for breach. Owner waived it repeatedly. Rather. P to take over D’s biz. Damages equal the contract price less the damages caused to D by incomplete performance. P refused to complete job and sued for breach of entire K. If portrait failed to satisfy D. Contractual liability may be conditioned on subjective personal satisfaction.‖ Unless all details are made part of the contract. Parol says oral agreement can’t be used as evidence to contradict written agreement. the contract was substantially performed. Diminished value. Therefore. However. there were no specific details included in the contract. D argues dependent covenant. P substantially performed by using pipe the same quality as reading. there is no hardship in holding them bound by it. D not satisfied w/ portrait. The important factor to consider is when in the order of time the covenants should be performed. but one party cannot cite a breach of the other party’s covenant as an excuse for his own breach. Here. (3) mutual conditions – the conditions must be performed at the same time and the failure of one party to perform is a ground for alleging breach. something less than perfection is the test of substantial performance. D need not accept/pay. ―Substantial performance as applied to construction of a house does not mean that every detail must be in strict compliance with the specifications and the plans. arguing that covenants were mutual & independent. then such evidence may be introduced. Jacobs and Young v. When D failed to pay. Constant/repeated disregard on owner to exact compliance w/provision. (2) conditional and dependent – the performance of one depends on the performance of another and the duty to perform does not arise until the prior condition is performed. Where a K is made to perform work and no agreement is made as to payment. P had to make payments & provide security. some of it wasn’t. & P sued for the K price. Newbury (NY App 1917) P alleged he was to be paid in “usual manner” even though not written into K. P stopped work. the giving of security is a condition precedent. The doctrine of substantial performance applies to constructive conditions (not express). Bush (NY 1962) Kingston v.(FL SC 1977) Gibson v. the plan was a stock floor plan. the agreement essentially dictates that D would not entrust his business to the P without sufficient security. D paid in installments w/o any certificates from architect. Written K made no mention of the condition (orally agreed to) that sum of money had to be raised in order for written doc to take effect. There can be no recovery on a contract unless there is substantial performance. Kent Plante v. Jacobs P built D house with misplaced wall by one foot. Where parties deliberately entire into an agreement which violates no rule of public policy & is free of fraud or mistake. Now too late for him to insist that failure on the part of the P to secure certification before suit defeats his right of action. There were no blueprints. . Work was to be done under the direction of an architect under condition of certificates for payment. It is not generally intended that payment by the owner of a building to the general contractor be a condition precedent to the general contractor’s duty to pay subcontractors. subcontractor will be interpreted as constituting absolute promises to pay and not as setting pmt by the owner as a condition precedent to pmt. Here. if oral agreement is for a condition precedent to the effectiveness of K.

D stopped P from doing further work because P was using wood lath instead of rock lath. Logs were worth different amounts. D wrongfully repudiated the agreement by discontinuing performance. However. and will be required to pay damages for that breach. United A contract is severable if one party’s performance consists of several distinct items. and for lost profits. the bulldozer damage constituted a material breach of the promise to perform in a ―workmanlike manner. Johnstown Lumber P K’d to drive & deliver 4 million ft of logs but had delivered only a part of that amount when flood swept away rest of logs. Kehm Corp. Because P’s refusal to pay the installments was justified. v. An injured party may treat nonperf as a partial breach. a subcontractor. and the consideration was not to be paid in an entire sum. the Plaintiff was entitled to recover for the reasonable value of his services rendered. The trial court found that P defaulted on the contract and denied recovery. In the event that the breach is not material. Kirkland v. he may still incur hardship. Archbold P contracted to make repairs on D home. or concurrent. Here. the work to be done by P consisted of driving several items. Because P was justified in refusing to make an installment payment. or (3) he has abandoned the job. unless: (1) no benefit has been conferred to the other party by the work. Turner P worked for D for 9 ½ mo when K specified 1 yr. if the defaulting party has done work that has benefited the other party. P treated the breach as partial. In this case. Britton v. the contract is severable. Whether there has been a material breach that justifies repudiation is a determination for the courts. Harrison K&G Construction Co. In general. In this case. D counter-sued for the work P had not paid for. Where a party to a contract cannot derive a benefit from the other party’s part performance of the contract. In the present case. v.Gill v.‖ Therefore. Therefore. the other party cannot recover in quantum meruit for services rendered. but rather at a contracted rate per feet. P was justified in withholding installment payments. D rented electric sign which was hit w/tomato. an injured party is entitled to repudiate an agreement if there has been a material breach of the contract by the other party. and the price to be paid is apportioned to each item to be performed. The promisor’s undertaking normally gives rise to . Mutually dependent promises are those in which performance of obligations by one party is conditioned on performance of obligations by the other party. by allowing D to work after the bulldozer accident. Walker v. he may still recover in quantum meruit. the Defendant did not offer evidence to show that he was damaged by incomplete performance. Therefore. Therefore. Harris P sued D. less damages caused by the default. Mutually dependent promises can be precedent. D refused to make further payments until P cleaned sign. and continue to allow the breaching party to perform the rest of the contract. Even if a defaulting party has not substantially performed the contract. Modern courts favor finding that promises in an agreement are mutually dependent. After two months. D breached their agreement further by stopping performance. and P sued for the difference between his expenses and the amount already paid by P. the party who repudiated the agreement will be found to have materially breached the agreement. and the Court of Appeals of Ohio reversed. (2) the work done is not the work contracted for. subsequent. where the other party has conferred a benefit upon the party even though he does not complete performance. for damage done to a construction site and for breach of the subcontract. he is entitled to recover the cost of labor and materials in quantum meruit. A party may only repudiate an agreement when there has been a material breach of the contract by the other party. namely logs.

Karl O. he must do whatever is necessary to enable him to perform. it notified D of this and the D refused payment for the product already delivered. An exception to this rule occurs where the non-terminating party detrimentally relies on the reasons stated in the notice of termination.C. Minweld Steel Co. had he been notified of the impending sale. D changed mind before P was to start. v. Inc.L. Defendant was having difficulty obtaining the materials necessary for its performance. the injured party may also have a duty to mitigate the damages caused by the breach. sued New England Structures. but it requested assistance and indicated it still intended to perform its contracts with Plaintiff. P had reason to believe that D would not perform. P was absolved from his obligation on the contract. In consolidated cases. De La Tour (Queen’s Bench 1853) P contracted to be a courier for D for 3 months. In some cases it might be advantageous for both sides for the injured party to wait until performance is due and not forthcoming before proceeding with a breach of contract action. Note that because of the detrimental reliance exception. Defendant counter-sued for damages arising from Plaintiff’s termination of the agreement. (Defendant) for damages after Plaintiff terminated the parties’ agreement due to a breach. he would have been ready. This does not excuse nonperformance. when one party interferes with or prevents the other party from performing his part of the contract. Kanavos v. an implied complementary obligation on the part of the promisee: He must not only not hinder his promisor’s performance. Courts have interpreted ―learned of the breach‖ to mean (1) . Maddox. or have made clear and affirmative statements indicating that he is unable to perform. However. he may defend against a breach of contract action by raising all grounds he possesses for terminating the parties’ agreement. plus incidental and consequential damages. Where there is no evidence that the terminating party acted in bad faith or dishonestly. Hancock Bank & Trust Co (MA SC 1985) D sold stock to which P had earlier been given a K’s right of first refusal. Coalfield Services. To recover for breach of K. terminating parties might not give any grounds for terminating a contract. in this case. Loranger Loranger (Plaintiff). in the case of a clear anticipatory repudiation. P did not intend to interfere with D’s performance when it made the other purchase of rails. P tried to insert a liquidated damages clause unlikely to be accepted. New England Structures. willing. the other party may be excused for nonperformance. (US App 1955) P sued D for anticipatory breach of three construction contracts when Defendant indicated that it was having difficulty procuring materials. In order for a party to recover on a claim of anticipatory breach of contract. Inc (7th Cir 1995) Cosden Oil & Chemical Co. Such a course of action might not be proper if the party allegedly in breach has a right to cure. Inc. The Supreme Judicial Court of Massachusetts reversed. a general contractor. The injured party retains the option to sue immediately or to wait until the date performance is due before bringing an action for breach.States Iron Trade Products Co. P sues and is in court before the K was to arise. In this case. D to deliver rails to P but refused to do so after P reduced available supply by buying from D’s source and made Ds performance more difficult. McCloskey & Co. Inc. When P was unable to complete the performance. The U. Upon receiving clear and firm notice of renunciation. D’s performance was not prevented by P’s conduct. the trial court found in favor of Defendant in both actions.. P failed to sign D’s proposal. provides that the measure of damages for repudiation by the seller is the difference between the market price at the time the buyer ―learned of the breach‖ and the contract price. C. v. However. v. In general. owner of a right of first refusal must prove that. Helm Aktiengesellschaft P to do work for D. v. D began working. the other party must have unequivocally refused to perform. P’s repudiation was excused because of D’s actions. Wilkoff Co.C. it was only made more difficult and expensive. v. P agreed to sell a set amount of polystyrene to the D. and able to exercise his right. Hochester v. Ability to perform is a constructive condition.

D agreed to sell P a cow. .United States v. when reasonable grounds for insecurity arise as to a party’s likelihood of performance. However. ―A barren cow is substantially different than a breeding one. the other party may demand adequate assurances of performance. P did not have reasonable grounds for insecurity. P thereafter sued for damages.‖ the mutual mistake materially altered the ―very bases of the contract. Something is impossible when it is not practical and a thing is impracticable when it can only be done without Mineral Park Land Co. Walker [Pregnant Cow Case] when the buyer learns of the repudiation. Here. the Defendant agreed to take away all of the gravel and earth necessary in the construction of the fill and cement work on the bridge. Leonard P contracted with D to construct a building. P contracted with D for the purchase of leases for the purpose of cultivating jojoba. Mutual mistake must be a mistake in fact that both parties are mistaken about. give assurances that he could pay after being turned down for a loan. P determined there was not sufficient water available underground to suit their needs and rescinded the agreement. Brookhaven Manor Water Co. P then sued for reimbursement of their purchase price. not required by the written agreement. v. If one binds himself by a positive. Party has right to demand adequate assurance of future performance when reasonable grounds arise to lead that party to believe that the other party will commit a breach of nonperformance where K not governed by UCC. Pittsburgh-Des Moines Steel Co. the Plaintiff had already changed its position by soliciting bids for a new contract. Retraction cannot be accomplished. Norcon Power Partners v. The money was not required to be paid for some months and D’s refusal to guarantee the money was not unusual in a corporate setting. Even though the Defendant rescinded the cancellation before the signing of the new agreement. After the building twice fell. Kehl Wood v. Rose was not the animal or the kind of animal D intended to sell or P intended to buy. Therefore mutual mistake. D discovered that the cow was pregnant. Howard Plaintiff granted to the Defendant the right to haul gravel and earth from Plaintiff’s land. A party that gives notice of an intention not to perform a contract may withdraw such notice at any time prior to the other party acting in reliance on that repudiation. D gave $1 worth $700. once the nonbreaching party performs a definite action indicating that the anticipatory breach has been accepted as final. the D refused to rebuild again averring that the soil was composed of quicksand.‖ If both parties don’t know what it was. believed by both parties to be sterile. P sued the D for the difference between the contract price and the amount the P paid to cover the contract that D gave notice that it was canceling. Both parties believed that there was sufficient water available underground to sustain jojoba production. the law or the other party to K & will not be excused by hardship. he must perform unless prevented by act of God. P sued the D seeking a declaration that the D had no right to demand adequate assurances under New York State law. (US App 1976) P sued D for breach of contract after D refused to undertake actions. there is no mutual mistake. Niagara Mohawk Power Corp. Renner v. v. after drilling five test wells. Economic Impracticablity: When performance depends upon the existence of a given thing and such existence is assumed as the basis of the agreement performance is excused to the extent that the thing ceases to exist. however. the district court chose interpretation number two. for $80. Since both parties believed that there were adequate water supplies underground and this was ―a basic assumption on which both parties made the contract. express K to do an act in itself possible. When there is a mutual mistake of a material fact that constitutes ―an essential part and condition of the contract. Under UCC 2-609. both parties didn’t know what it was. to assure P that it could pay for the contracted work. (2) when the buyer learns of the repudiation plus a commercially reasonable time or (3) when performance is due under the contract. Stees v. unforeseen hindrance or difficulty short of absolute impossibility. Making it worth $750 and $1000. Boynton [Diamond in the rough case] Sherwood v. Both parties were of the opinion that sufficient water was available beneath the land for jojoba production.‖ They were both mistaken about what the cow was not what the cow was worth. Diamond. Seacoast Gas Co.‖ the contract may be rescinded.

500. D defended the action by alleging that the contract was void as commercially impracticable. Canadian Industrial Alcohol Co. The difference in cost is so great here that to require the Defendant to remove the gravel and earth through more expensive means would be unjust. Superior did not manufacture the bodies. Selland Pontiac—Gmc. Superior. It must be positively unjust to hold the parties bound. the risk does not appear to have been allocated in the agreement or by custom to one party over the other. P brought this action to recover damages. v. then the court will not relieve performance of that party due to impossibility. When a middleman contracts to supply goods that he will be getting from a third party and the third party cannot supply the goods. Inc. King P contracted with D to buy four school bus bodies. Transatlantic Financing Corp. neither party had any knowledge of Superior’s questionable financial circumstances. the performance was not rendered commercially impracticable. Dunbar Molasses Eastern Air Lines. This case demonstrates impossibility due to failure of third persons. the supplier. Inc. Finally. (2) risk of unexpected occurrence must not have been allocated by K or custom and (3) occurrence of contingency must have rendered performance commercially impracticable (objective test). unprofitability alone will not excuse performance. excessive and unreasonable cost. D has not proved the dramatically increased ―costs‖ of production it is alleging. the unforeseen cost increase that excuses performance ―must be more than merely onerous or expensive. More specifically. P sued D for breach of contract. In order for performance to be commercially impracticable under the Uniform Commercial Code (UCC). Gulf Oil. United States P sued the D in quantum meruit after it was forced to take the longer route from Texas to Iran around the Cape of Good Hope rather than the shorter route through the Suez Canal. First. D contends that the duty to deliver was conditioned upon the production by the National Sugar Refinery of molasses sufficient in quantity to fulfill P’s order.‖ In other words. However. D was to supply the bus bodies and they were to be built on top of chassis provided by P. This case relaxed the rule that it had to be physically impossible to excuse performance. D’s supplier decided not to produce a sufficient amount of molasses and did not deliver to P the full amount of molasses. which were provided for in the contract. The usual route from Texas to Iran would be through the Suez Canal and its closure would be unexpected. Caldwell P sued D for breach of contract after the venue P contracted with D to use burned down. Among other issues.000 wine gallons of molasses. As a general rule. excuses performance under a contract. was specified in the contract. The written contract specified that the bodies would be manufactured by Superior. Impossibility. the first requirement is met.Taylor v. P contracted with D to purchase approximately 1. the added expense is not significant. When a court believes that the risk was foreseeable and under the control of one of the parties. there was no breach by the seller due to impossibility of performance when the seller’s supplier stopped production. where the performance of a contract depends upon the continued existence of a thing. the risk of this failure is allocated to the seller unless otherwise specified in the contract. v. arising through no fault of the parties. and second. v. must have occurred. It is not always the case that cost alone may never constitute impracticability. where the seller’s supplier fails to produce the needed materials for the completion of the contract. The type of . but here. Second. a condition is implied in the agreement that the impossibility of performance arising from the perishing of the thing shall excuse performance. v. in the present case. Here. Three part test for Impossibility/Impracticability: (1) a contingency. D further did not expressly assume the risk of Superior’s ceasing production. something unexpected. the middleman may not use the impossibility defense if the seller is unwilling rather than unable to contract to sell the items to the seller.

The bridge was destroyed by fire before completion and P claims entitlement to the cost of performance. Lawrence was intended third party beneficiary. Can only recover for materials wrought into bridge. Young v. Ads for rent to watch coronation. it excuses performance where something beyond the parties’ control occurs that prevents performance. but inferences drawn from surrounding circumstances understood by both parties evidence that the contract is being formed on the basis of the existence of a particular state of things. the contract is unenforceable when it becomes impossible to perform by reason of the non-existence of the state of things assumed by both contracting parties as the foundation of the contract When goods are delivered free on board (F. i. v. D rented to watch coronation. Panoness Co. Chase Precast Corp. P sued D to have its obligations under the contract excused under the force majeure clause of the agreement. It was also foreseeable. destroys the object or purpose of the contract. City of Chicopee P sued to recover for the work done and materials supplied pursuant to a contract for the construction of a bridge. Fox didn’t pay Lawrence.O. thus destroying the value of performance. Certainly. the party owning the structure is liable for the work completed up to the destruction. required to prove commercial impracticability was not established.B. John J. but rather. A force majeure clause does not protect against the ordinary risks of a contract. The contract made . place of shipment – title transfers to buyer upon delivery by the seller to a common carrier. Equitable principles require that the contract be enforced against the estate. Swift Canadian Co. Northern Indiana Public Service Co. Fox Holly owed to Lawrence. Toronto) pursuant to the contract. Where a structure is destroyed before the work on it is completed.B. P satisfied its contractual duties by delivering the goods to the railroad company in Toronto. Holly tells Fox to pay Lawrence instead. may be enforced by the person for the benefit of whom the promise was made. D cannot be liable for materials destroyed that were not yet attached to the structure. However. Only intended third party beneficiaries can recover on K. Fox borrowed $ from holly. the parties are excused from further performance.e. notwithstanding the fact that D could not take the goods to its desired location. destination – title does not transfer from seller to buyer until the goods reach the destination.).O. Banet P (seller) sued D (buyer) for breach of contract for failure to pay for a shipment of pelts that P properly delivered to a common carrier (F. the buyer did not have to ship the goods to the United States. ―[W]hen an event neither anticipated nor caused by either party. F.O.B. A promise made for the benefit of another. the Plaintiff cannot escape liability under the contract because of bad business dealings. v.Krell v.O. The force majeure clause cannot be invoked to protect a party against normal risks of a contract. plus the cost of materials not yet used. The principle behind such a rule is that P could have switched the material for other material up to the time it was actually made part of the bridge.B. F.‖ The Department eliminated the need for median barriers in the project. Lawrence v. the risk of which was not allocated by the contract. Seaver v. title and risk of loss pass at the location specified. as the purpose of the contract was frustrated by an event caused by unallocated risk. but destroyed. P has no recourse against D for breach of contract. P sued D when the need for the median barriers supplied by P was eliminated and D thereafter refused to perform the remainder of the contract. v. Henry D rents room from P to watch coronation which was cancelled. Ransom P sued D as executors of the estate of Judge Beman to enforce a contract made between hardship. higher energy costs due to the duration of the contract and cost of coal versus other sources. beyond mere lack of profitability. Therefore. Carbon County Coal Co. If the words of a contract do not necessarily state a purpose for the contract.

Campbell Soup Co. there is a strong presumption that the third party is not a beneficiary and that the parties Ked to benefit only themselves. In the present case. Price of those carrots went up. While it is foreseeable that the seller of the property would sell the land to P. For a third party beneficiary to be valid.‖ Plaintiff cited price increases in G-II’s. The third party must be an intended beneficiary. P reopened factory but D never sent wool to be processed. Rose Howdy Doody Puppet was supposed to go to museum. (US Ct of App 4th Cir 1988) P wanted to buy D’s jet. Cleveland Chiropractic College Grigerik v. Incidental benefits of third parties is not enough. . Inc. including the motives and the purposes of the parties. Inadequacy of the legal remedy is necessarily a matter to be determined by an examination of the facts in each particular instance. the Court held that the aircraft was not so unique as to merit an order of specific performance. Klein v. As ―other proper circumstances. the seller and D did not intend that P would be a beneficiary of the contract. there need not be express language in the K creating a direct obligation to the third party beneficiary. & should not be considered as part of the seller’s (processor’s) costs. Verne v. Money damages would clearly be adequate. In cases where the K lacks an express declaration of intent to benefit a third party. The intent of the parties is to be determined from the terms of the K read in light of the circumstances attending the making of the K. However. Since overhead Vitex Manufacturing v. Caribtex P was to process wool for D. Mrs. which caused him to purchase a G-III. A party may have specific performance of a contract for the sale of chattels if the legal remedy is inadequate. P purchased land from the person who contracted with D to prepare a site plan for the land. of America. v. P was only incidental.‖ Given the testimony that there were three comparable G-II’s on the market. Rathke v. PepsiCo. This complies with the general doctrine that any third person. between Mrs. Being a foreseeable beneficiary is insufficient. Inc. could sue on it. Detroit Institute of Arts Founders Society v. The goods here were unavailable on the open market and not available anywhere else and they need their soup to look the same at all times— specific performance should be granted. Sharpe P sued D to recover for breach of a contract entered into by D and P’s predecessor in title. Wentz P contracted with D to grow certain carrots. In a claim for lost profits. D sold them to someone else. overhead should be treated as part of the gross profits & recoverable as damages. P may enforce the contract made for her benefit. Beman and Judge Beman for P to receive the house upon the Judge Beman’s death binds the estate to perform on that promise. a K can only result in an obligation to a third party if both parties to the K intended to create a direct obligation from the promisor to the third party. Corrections Corp.Judge Beman and his late wife. A third party is only a third party beneficiary of a contract if both parties to the contract intend that he be a beneficiary of the contract. for the benefit of P. Price increases are no reason to order specific performance. for whose direct benefit a contract was intended. 2-716 –Specific performance is appropriate where the goods are unique ―in other proper circumstances. Beman.

Here. D will be adequately compensated by recovering the difference in value of a home with the Reading pipe and the value of the home. D specified that all pipe in the house must be Reading pipe. it cannot be said that under ordinary circumstances such loss arises naturally from this type of breach. Instead. P leased their farmland to D for strip-mining on the condition that D fill in the holes D made after the completion of the mining. The UCC states that the proper measure of damages is the difference between the market price at breach or the cost of cover and the K price plus incidental and consequential damages. Township of Middletown (NYSC 1994) P entered into a commercial lease with D that contained a clause providing that if D cancelled the lease. A liquidated damages clause is a predetermined sum that a contracting party agrees to pay if he breaches. Where the breach is willful. not the difference between the value of the property at the time of contracting and the value the property would have had if D fully performed. The burden is on the seller to prove that cover was not properly obtained. cost of restoring was $60k. there should be no need to deduct them in computing lost profits. A nonbreaching party is entitled damages arising naturally from the breach itself or those that are in the reasonable contemplation of the parties at the time of contracting. but rather. he demanded that the work be redone. with a different kind of pipe. v. Kent P built a house for D. nor did D know of the special circumstances. & where the economic benefit of full performance of work is grossly disproportionate to the cost of performance. as it exists. to have a new part created. Value of land was $12k if restored. the price is presumed proper. D entered into a K with P to remove sand and gravel from P’s premises and leave the property “at a uniform grade. There is a multitude of reasons for a miller to send a crank shaft to a third party. Cost to complete (not diminution in value) is proper remedy. but inadvertently. the damages are limited to the diminution in value b/c of the non-performance. a penalty clause is a predetermined sum Hadley v. P installed pipe that was not Reading pipe. and D offered no evidence that cover was not properly obtained.Laredo Hides Co. Wasserman’s Inc. Where the K provision breached was merely incidental to the main purpose. resulting in lost profits. H&H Meat Products Co. causing P’s mill to remain closed longer than expected. Ps may not gain more in damages for a breach of contract that actual performance is worth. Here. but P refused. there is no need to prove the market price at the time of breach. Inc. Where cover has actually been obtained. It is unlikely that a reasonable landowner would spend $29.000. P never communicated the special circumstances to D.” D paid P $105. Joyce & Co. it would pay P a pro-rata reimbursement for any improvement costs and damages of twenty-five percent of P’s average . John Wunder (MN SC 1939) Peevyhouse v. When delivery was delayed due to D’s neglect. while the breach by D was the actual cause of the lost profits of P. and a component of their steam engine broke causing them to shut down the mill.00 to increase the value of a piece of land by $300. When D discovered this defect. Inc. When willful breach. To permit D to recover the cost of replacement of the pipe would be unduly oppressive.000 but willfully failed to leave the property at a uniform grade. P then contracted with D to take the component to W. said sum being a good faith estimate of the actual damages in the event of a breach. D did not fill in the holes. Equity and fairness dictate that one who unintentionally commits a trivial wrong will not be condemned to a fate so clearly out of proportion with the transgression. which would have required the demolition and reconstruction of substantial parts of the house. v. damages equal the cost of performing the contract. substantially the same as the grade now existing at the roadway. which the Court found D had repudiated. Garland Coal & Mining Co. breaching party may not sue on the K nor invoke benefit of substantial performance to limit damages to the diminution in value. P purchased substitute hides for substantially more than the K price and requested damages for purchasing more expensive hides to cover its loss. Groves v. Jacob and Young v.00. P obtained cover.. P sued to recover damages. Baxendale (Ct of Exchequer 1854) P operated a mill. (OK 1962) expenses are not affected by the performance of the particular K. P and D entered into a contract for the sale of cattle hides. By contrast. Further. D had no way of knowing that their breach would cause a longer shutdown of the mill.

Masterson v. excluding parol evidence merely because the words do not appear ambiguous may lead to an interpretation of a written contract that was never intended. movies. D subsequently cancelled the lease but refused to pay the damages. and domestic audio distribution. but it may be used to interpret the terms of the contract. D allowed another to sell soda. W. Evidence of oral collateral agmts should be excluded only when the fact finder (ct) is likely to be mislead. ―The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face. the law declares the writing to be not only the best. the contract should be reformed and enforced according to the missing terms. clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Russell (PA SC 1924) P rented space to sell fruit. D didn’t cover with topsoil. Parol evidence can be shown to prove elements of part of agreement that’s not reduced to writing. Greenfield v. When parties set down their agreement in a clear. The parol testimony as to the limitation of assignment should have been admitted since that term would not necessarily have been included. D performed a similar practice with regard to the land of a neighbor of P. have deliberately put their engagements in writing. Further. the written contract must be the entire contract between the parties. Central PA Quarry Stripping & Construction Co. Here.W. or vary the terms of a written contract. Gianni v. Sine (CA SC 1968) P transferred prop to relatives reserving option to repurchase for 10 yrs.gross receipts for one year. D offers prior Ks indicating only 3rd party property covered.W. candy. but the only evidence of their agreement. Equity permits a court to reform a written contract to make it correspond to the understanding of the parties. as the owners of the master recordings of P’s vocal performances. PG&E v. provided that the mistake is mutual. Hence. G. (CA SC 1968) D obtained insurance policy covering only 3rd party liability. Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous. P claimed D agreed to give P sole right sell soda in building at time of lease negotiations though not in written lease. Philles Records Inc. Liquidated damages clauses are enforceable if ―the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach. said sum being a fixed amount. P satisfied the heavy burden of proving mutual mistake by introducing evidence that the D initially complied with the terms omitted. ―Where parties. (PA SC 1967) P contracted to permit D to deposit its construction waste on Ps prop if it removed topsoil & covered the waste w/it. R. in order for parol evidence to be excluded. This oral condition was not included in the written agreement and was omitted by mistake. The best evidence of what parties to a written agreement intend is what they say in their writing. Extrinsic evidence may not add to. P argues that intention was to cover property as well.‖ Further. detract from.W. Inc. Associates. but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.‖ Under the parol evidence rule. Relatives went bankrupt. . P sought to exercise the option. soda. Thomas Drayage & Rigging Co. acquired the K right to issue licences to third parties to use the recordings in connection with TV. However. Whether D. and no evidence of such other verbal agreements is to be considered by the court. but rather a punishment intended to prevent breach. which is an issue of law for the courts to decide. not meant to be an estimate of actual damages. neutral precept of K interpretation is that agreements are construed in accord with the parties’ intent. v. Bollinger v. that a contracting party agrees to pay if he breaches. without any fraud or mistake.‖ Any preliminary negotiations and verbal agreements are superseded by the written contract. The fundamental. A written agreement that is complete.

Palrol Evidence admissible in order to explain the trade meanings. Wichelhaus (Ct of Exchequer 1864) Where a party to a contract is not a member of the trade and the usage of a term. as a rule. Crow A surgeon guaranteed that the plaintiffs hand operation would be 100 percent successful. P brought suit against the seller and manufacturers of a fishing boat alleging that D breached an express warranty. McGee Bayliner Marine Corp. K stated that P could not prepay the principal for the first 12 years. Royster Co (4th Cir 1971) Raffles v. common to the trade. Mere opinions or puffery do not constitute . which ship ―Peerless‖).N. Extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous on its face. the party that is in the trade has the burden of proving that the party not in the trade had actual knowledge of the usage or that the usage is ―so generally known in the community that his actual individual knowledge of it may be inferred. P claimed that the boat he was sold was significantly slower The measure of damages in a breach of contract case is the difference between the plaintiffs actual position and the position he would have been in had the contract not been breached. v. Frigaliment Importing v. their writing should. P claims that the K language did not accurately reflect the parties’ intentions.5%. Hawkins v. If one side is willing to claim that the parties intended one thing but the agreement provides for another. complete document. D shipped stewing chicken instead of broiling & frying chicken. and that they can prepay the loan immediately. WJ Lake & Co (OR 1932) Horse scrap meat. the parties are charged with the meaning that a reasonable person would attribute to that term. The plaintiff sued for breach of warranty when the operation was not successful. is challenged. An express warranty for an item will exist where a seller makes an affirmation of fact or promise to the buyer which becomes part of the basis of the bargain.53-49. P wanted to introduce evidence on usage of trade & course of dealing to show that specific K price was not to be binding on parties. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing.” 2 ships w/that name each departed at different dates. (2) If there is no meeting of the minds as to the thing agreed upon (in this case. be enforced according to its terms. Co. 2-202 authorizes evidence of usage of trade & course of dealing b/w parties to explain or supplement a K. there is not a meeting of the minds and (4) if there are competing meanings for contractual terms. B.Giancontieri Trident Center v. Hurst v. generally accepted terms are understood to be correct. (3) The concept of mutual mistake dictates that if both parties are mistaken.S. International Sales (US Dist Ct 1960) P borrowed $ from D for construction of an office building at a 12. 140 tons were 49. D has the option of accelerating the note and adding 1 10% prepay fee. Different prices for meat that were above or below 50%. meanings of the terms of the trade should take precedence. and in the case of default in years 1-12. subject to the 10% fee. D contracted to sell “chicken” to P. the court must consider extrinsic evidence of possible ambiguity. D agreed to buy cotton to be shipped by P aboard “Peerless. saying it could not be pre-paid for the first 12 years. P started looking for way of refinancing the loan and the D was unwilling to oblige.‖ The party who seeks to interpret the terms of the K in a sense narrower than their everyday use bears burden of persuasion to so show. Connecticut General Life Ins. there is not a valid contract. There are several applicable rules to be considered in the case of the two ships Peerless: (1) when terms in a contract are ambiguous. In dealings b/w tradesmen. Columbia Nitrogen v.25% interest for a term of 15 years.

Forbearance to sue for a lawful claim or demand is a sufficient consideration for a promise if the party forbearing had a good faith intention to prosecute litigation which is not frivolous. $200/mo. P did those things. pt. express warranties. Restitution damages are measured by an amount of money corresponding to any benefit conferred by P upon D in the performance of the contract disrupted by D’s breach. . D died. D breached an exclusive licensing agreement with P when D shipped a book to retail outlets prior to the agreed upon date. Benkowski Hamer v. and which she believed to be well founded. for breach of contract in respect to an operation upon the P’s nose. Agreement signed while working. vexatious. P is bringing this action to recover the compensation promised by D. not punitive. and playing cards or billiards for money until he became 21. or undertaken by the other party. D shut off water at different times during day. LLC v. Valuable consideration may consist either in some right. Noncomp. Columber P cared for the son of D when he was ill. interest. Inc. it must be bargained for and given in exchange for a promise. Sidway Fiege v. P brings a breach of contract action against D because D refuses to honor a pension plan agreement. D breached noncomp. secured a jury verdict against D. P made no promise or agreement to continue her employment with D in exchange for D’s promise to pay P her pension plan. D promised to pay P’s expenses and make $10/week support payments so long as P would not institute bastardy proceedings. D agreed with his nephew P that if P would refrain from drinking. profit. Kirksey Lake Land Employment Group of Akron. Wyman Webb v. than what was allegedly represented to him. suffered. or unlawful. Past services are not valid consideration. In calculating the amount of damages in a breach of contract case. or responsibility given. Agreement. a professional entertainer. P brings suit against D for payments that D promised to P after P suffered serious bodily harm in preventing a block from falling on D. loss. Pfeiffer Co. Reliance damages compensate P for the detriments she suffered in reliance upon the agreement. Mills v. swearing. focus on the P’s loss. Past consideration and moral obligation alone are insufficient consideration to make a promise enforceable. When she decided to retire. or benefit accruing to one of the parties or some forbearance. For a consideration to be valid. Sullivan v. in exchange for the assent of an at-will employee to a proffered noncompetition agreement. Consideration exists to support a noncompetition agreement when. 1 P contracted w/ D for D to supply water to P for $3/mo. P was pregnant. restitution interests and reliance interests are used in measuring damages to put the promisee in the position in which she would have been had the promise been performed. Punitive damages are not generally available in breach of K cases. the employer continues an at-will employment relationship that could legally be terminated without cause.United States Naval Institute v. Reliance damages are measured by an amount of money to put P back in the position he occupied just before the parties entered upon the agreement. using tobacco. An injured party cannot recover damages sustained from a breach of a gratuitous promise. P sued D on a breach of contract action for damages sustained by P in reliance on D’s promise to provide P with a home for herself and her family if she went to see D. said D was father. O’Connor P. not on the D’s gain and remember that the central objective behind the system of contract remedies is compensatory. P claims that before the child was born. After Son died. White v. Expectation interests. A moral obligation is a sufficient consideration to support a subsequent promise to pay where the promisor has received a material benefit. a surgeon. McGowin Kirksey v. D promised to compensate P for the care P provided his son. detriment. D would pay him $5k. Boehm Feinberg v. Charter Communications. D paid P $480 then found out he was not father and stopped paying. Damages for breach of contract are calculated by the actual loss sustained and uncertainties are generally resolved against the wrongdoer.

Cohen v. Feinberg v.‖ Thus. D & G Stout. D began doing it herself.Broadnax v. in this case. The K gave P the exclusive right to use D’s endorsement and to sell and license D’s designs. Cowles Media Co. applied the doctrine of promissory estoppel. to resist payment on the ground that the promise was given without consideration. the contract would be worthless to Defendant. or his executor. Bacardi Imports. Gulf must take the necessary arrangements to supply Eastern’s reasonable good faith demands. Hopper Agreement to buy land was subject to obtaining satisfactory leases. D said that he did not believe that P should have to work anymore. Inc. P did not demand payment for 2 years. P quit her job. v. it would be grossly inequitable to permit the maker. A breach of that promise should result in damages to avoid injustice. Lucy. P relied on the promise and retired giving up any chance for gainful employment. and split profits. . Inc. v. D failed to adhere to the agreement and as a result the P lost his employment and received a damage award by the trial court. An agreement by a creditor to forbear the collection of a debt presently due is a good consideration for an absolute or conditional promise of a third person to pay the debt. Mattei v. Based on that representation. A reward may be accepted by anyone who performs the service called for when the acceptor knows that it has been made and acts in performance of it. For the contract to bind either party. The Court implies an obligation to make reasonable efforts. Wood v. Pfeiffer pt. A promise made with full expectation that some action will be taken and some expense likely incurred will be enforceable under an action for promissory estoppel. the promises must be mutual in obligation. Scothorn D entered into a K with P. And Easter could choose to take fuel or not. P turned down an offer to purchase the company. D promised P confidentiality in order to receive certain information to be published. The debt owed by D’s husband was presently due. both must assume some legal obligation. Gulf Oil Corporation D says that there is no K because of the requirements K is too vague and indefinite. The Court finds that without an implication to make reasonable efforts. Restatement § 90 Promissory Estoppel: A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. Ledbetter Did not know of reward until after returning the captured convict. D subsequently withdrew its account and P was forced to accept a substantially lower offer. ―Having intentionally influenced P to alter her position for the worse on the faith of the note being paid when due. The satisfaction clause implies P’s duty to exercise his best judgment in good faith is an adequate consideration to support the contract. D promised P would continue to be D’s distributor. Sheffield P promised to forbear collection of a debt owed by the husband of D. D (P’s grandfather) gave P a note that said he would give her $2K. D died and P didn’t get paid. if D promised to pay P should D’s husband not pay. When the parties attempt to make a contract where promises are exchanged as the consideration. Inc. 2 Above. Eastern Air Lines. P’s promise to forbear collection of a debt payable on demand imposed no duty on P to forbear and was not a consideration for D’s promise to pay if her husband did not. the Ct. UCC §2-306—A K for output or requirements is not to indefinite since it is held to mean the actual good faith output or requirements of the particular party. the note did not legally extend the payment of the debt. However. D’s promise was expected to induce and did induce the disclosure necessary for the story. Strong v. Lady DuffGordon Ricketts v. D said there was no K for lack of consideration on P’s part b/c he could choose not to do the work.

and leaves nothing open for negotiation. The expression ―for immediate acceptance‖ taken in connection with the quotation of the price and terms detailing a shipment deadline were evidence of an offer to sell on the terms indicated and if accepted immediately would form and close a contract.000″ was found to show intent to open negotiations that might lead to a sale but that it was not a proposal to sell.000 cash. It excludes situations that evidence intent to deal or open negotiations. the facts demonstrate an agreement between the spouses and an extraordinary or unilateral effort by one spouse which inures solely to the benefit of the other by the time of dissolution. and according to the circumstances and offer to sell. Pyeatte Harrison. A year later. Crunden-Martin Woodenware Co. demonstrate an intent to agree to a contract. Mere statement of the lowest price at which the vendor would sell contains no implied contract to sell at that price to the persons making the inquiry. his/her unexpressed subjective state of mind is irrelevant. ―We agree to buy bumper Hall Pen for the sum of nine hundred pounds asked by you. Great Minneapolis Surplus Store. Zehmer P sued D for specific performance of a memorandum for the sale of D’s farm. The person buying the house died without paying for plants. Facts made it more than quotation of prices.‖ P. performed a difficult operation in an attempt to save his life but failed.‖ D answered. D advertised the sale of three fur coats and three fur stoles for $1. Just negotiation. Owen v. Appellees.Cotnam v. Where. P suing D for payment for plants. P telegraphed D a message stating ―Will you sell us Bumper Hall Pen? Telegraph lowest cash price—answer paid. definite action. the remedy of restitution is appropriate…‖ D in this case was unjustifiably enriched and this promise is enforceable under restitution. Facey Fairmount Glass Works v. judged under a reasonable standard. one will be implied by the law to remedy unjust enrichment. P planted shrubbery on the lot of the house that was being sold. Courts will find intent based on a reasonable interpretation of a person’s words and actions. Harvey v. wishing to buy the . Harrison was thrown from a street car. P operated a plant nursery and D was constructing a house to be sold to another. D argued that their offer to sell to the P was a joke.000. D’s letter stating ―it would not be possible to sell unless I was to receive $16.‖ P then sent a message that he accepted the offer to buy for $16. Wisdom Callano v. D sold house to another. deceased is represented by the Appellant who inherited intestate. An unreasonable meaning or a secret intent not to agree is immaterial if that meaning or intent is not known to the other party at the time the contract is formed. P arrived at D’s store first. D wrote a reply that described that ―it would not be possible to sell unless I was to receive $16. A Plaintiff cannot use quasi-contract or theory of unjust enrichment to substitute a known promisor or debtor for another. Quasi-contract will only be applied where no other remedy exists. surgeons. An advertisement may be considered an offer when it promises something in exchange for clear. D answered with prices and wrote “For Immediate Acceptance. An offer is an act that must express the will or intention to allow an offeree to reasonably believe that the power to accept and create a contract. Lucy v. General rule is ads are not offers. A quasi-contract or implied contract is a legal fiction where although there is no promise or contract in fact.00 a piece. first serve”. Tunison P sent a letter to D asking to buy a certain property for $6000.” Lefkowitz v. Pyeatte v.‖ P asked for lowest price for jars. Mutual assent is required for the formation of a contract. ―Lowest price for Bumper Hall Pen £900. D asked for divorce. and that they never intended to sell their land. Surgeons may recover the necessaries furnished in good faith to a person rendered in a helpless condition. upon dissolution there can be no restitution for the performance of these activities. D finished law school and obtained employment. ―Where both spouses perform the usual and incidental activities of the marital relationship. P and D were married and they agreed that the P (wife) will put the D (husband) through law school and after law school is completed. The advertisement said “first come. the D will put the P through graduate school. Oakwood Park Homes Corp. D did not write an offer to sell that would empower P to bind a contract for sale by his acceptance. however. When a person’s words and actions. Surgeons want to recover for services rendered.

Lederle Laboratories D was a drug manufacturer that periodically issued price lists to customers like P who purchased vaccines and distributed them the physicians. the bid was $9500 less than he could have truly offered based on subcontracting cost. The fact that he had ample time to check work did not mean the mistake was a neglect of legal duty which would deny him the ability to rescind the bid. While offers can be modified.garments. These actions did not in any way communicate his assent to D. D’s amendment gave a suggested mode of acceptance which did not preclude P’s acceptance by another method. P employee performing installation on D’s premises was injured due to the negligence of D’s employees. D was awarded the K at an evening school board session and realized the mistake and promptly rescinded the offer the following morning. An offer proposed may be withdrawn before its acceptance and no obligation is incurred thereby. the terms required executive approval but did not require the offered to give notice of the acceptance. become such. The work commenced and the injury occurred months before the indemnity provision was acknowledged. Corinthian Pharmaceutical Systems. The offeror has the power to express the terms and determine the acts which will constitute acceptance.” The following day. The power to accept is limited by the terms of the contract or at the end of a reasonable time. arbitrary conditions. Rescission is allowed based on mistake of fact if 1) material to the contract. Courts will construe those terms according to their plain meaning. Inc. is no indication of an acceptance. ―A mental determination not indicated by speech. thus. P arrived first. The proposal stated that if accepted it would become a contract if approved by an executive officer of P’s company. Under the UCC. The advertisement clearly stated that D would sell the fur garments at a definite price to the person who came first. Allied Steel and Conveyors. Kastorff D submitted a low bid to make certain editions to P’s school. Green P contracted with D to renovate his home. P accepted when P undertook performance of the work called for by the amendment with the ―consent and acquiescence‖ of D. White v. P was a builder. The offer was accepted when P began loading of the trucks and transporting men and materials to the D’s residence.‖ Here P bought the lumber and supplies. it was part of his regular work to conduct such actions. v. v. it was well settled that ―part performance‖ would complete the contract. which in itself. Nor does an act. Elsinore Union Elementary School District v. P commenced wood work and purchase of lumber for the furnishings. Due to a clerical error made on bid. The price list stated that orders were subject to acceptance by D and that orders would be priced according to price in effect at the time of shipment. impose new. but there is no acceptance by shipping non-conforming goods when the seller seasonably notifies the buyer that the shipment is only offered as an accommodation. D sought work on furnishing of a suite of offices. D should not be denied relief from an inequitable and unintended bargain. P had given an estimate and D sent a note that “upon agreement in two weeks” P could start work “at once. then the offeree may accept in another manner. Also. When P arrived at the job there was another company doing the work. saying the sale was only for women. D was actually the offeror. . one cannot. Conroe Gin. because accompanied by an unevinced mental determination. such as commencement of performance and be bound by the offer’s stated terms. is not an acceptance which will bind the other. Corlies & Tift Ever-Tite Roofing Corp. an advertisement is an invitation for an offer. P produced machinery for water purification and submitted a proposal to sell certain machinery to the D who manufactured Ice. accepted the offer. 2) mistake was not result of neglect of legal duty and 3) would be unconscionable to enforce. Ice & Light Co. Here. P had executed a purchase order that contained and indemnity form making P liable for D negligence in connection with P’s work. Ford Motor Co. If a form of acceptance is plainly worded in suggestive language. The letter accompanying the shipment told the buyer that this partial shipment at a lower price was an exception and that the remainder must be at a higher price. Otherwise. D refused. or put in course of indication by act to the other party. v. Since he was a carpenter. acceptance need not mirror the offer and shipping conforming goods is acceptance. International Filter Co. after acceptance. Inc. v. The ―house rule‖ was not mentioned in the advertisement.

‖ The parties clearly did not agree on the arbitration clause and this clause cannot fall under the supplementary terms part. back to P. P resold the software to various customers. At the time of the revocation. together with any supplementary terms incorporated under any other provisions of the act. ―the terms of the particular contract consist of those terms on which the writings of the parties agree. P had not completed performance. Step-Saver Data Systems. Supplementary terms ―are limited to those supplied by the standardized gap fillers provision of Article two. The offer to sell could only be accepted under its terms by performance prior to the November 1. There was no binding agreement to keep the property unsold until 9 o’clock Friday morning. K can be made by the conduct of the parties. Dorton v. Dodds Ragosta v. The actions of the software producer in repeatedly sending the writing of terms that could be otherwise excluded did not result in a course of conduct that adopted he terms of the writing. The Court found that D’s acknowledgement form did not expressly condition acceptance on assent to the terms on the back. then it could not become part of the K.” P left acceptance with D’s mother-in-law at 7pm Thursday evening upon learning that D had been offering the property to another. Wyse Technology D sold computer programs to P and all the programs had box top license terms which stated that opening the package was acceptance of certain terms. 1987. D shipped the goods and A accepted. Prior to November 1. including a disclaimer of warranties. D sent its form. D had made a written counter-offer to sell a piece of property “at anytime up until November 1. Collins & Aikman Corp.Dickinson v.” P telephoned in response stating that they would accept the offer. Under UCC 2-207(1). 9 o’clock am. 4 days later. Litronic Industries. Itoh & Co. Northrop Corp. morning who refused stating that he had already sold the property. therefore it was not enforceable. since financing was not bargained for. a promise to keep an offer open can be revoked. That form contained an express condition to all terms within. Therefore. The small print on the back of acknowledgement form sent in response to order for carpeting contained arbitration clause. and P had begun the financing process before the offer. D said he was no longer willing to sell even though he knew that P had begun loan processing and were preparing to close the sale. v. But under 2-207(3). P submitted a purchase order/offer to D for steel coils. Wilder D offered to sell P a certain property and stated the offer was “to be left over until Fri. Inc. Therefore the court would remand the issue of whether the arbitration materially altered the terms of the Plaintiff’s oral offer to purchase. D sought to avoid application of the arbitration clause in order to sue in Federal court. October 8. Equitable Estoppel is inapplicable. D received no consideration for the promise to keep the offer open. v. Jordan Int’l Co. The face of the form specified that acceptance was subject to all the terms on the reverse side. D’s acceptance clearly conditional. v. P attempted to deliver the acceptance personally to D on Fri. The offer to be held open until Friday 9 o’clock was only an offer that was not supported by consideration or acceptance by Plaintiff. C. if the original contract included warranty. P started getting sued because of problems with the software and sought to get indemnity from D and enforce breach of warranties against D. The form said it was ―subject to‖ the terms but did not expressly say the offeror must assent to those terms. If it did materially alter the offer.‖ Different Terms—Knockout rule: The different terms fall out and are replaced by a suitable UCC gap-filler. Without consideration. under 2-207 the disclaimer would . (America) Inc. unless P notified them at once. the addition of the disclaimer of the warranties by the box-top license would substantially alter the distribution of risk relating to the product between the two parties. As a matter of law. P undertook to obtaining financing but the Court did not believe that was consideration for D to keep the offer open. no K created by the forms. Since P did not assent to the additional terms. On the reverse side was an arbitration clause. deadline. The box-top license would not be considered a conditional acceptance because the software producer did not clearly express an unwillingness to proceed unless the additional terms were incorporated into the agreement. P said coils not of good quality. But under 2-207(3).

P produced some equipment in reliance on representations of D. reasonable reliance upon the promise and an unconscionable injury and the resulting injustice could only be remedied by invoking promissory estoppel. Also. P found another contractor willing to do the work but sought damages for the difference from D’s bid. F. K stated that P can renew the lease after 5 years if gives notice one year before the lease expires. Red Owl Stores Cyberchron Corp. There was a clear and unambiguous promise because D pressured P to produce as if there were not a problem. Inc. K stated that the fixed minimum If negotiations are failing to reach an agreement on specific terms and to form a contract. Gateway 2000 inc. With knowledge of other parties reliance. materially alter the agreement between the parties and could not become a part of the agreement. A buyer accepts. D had a contract with the U. When P became aware of the computer’s shortcomings. then the buyer will have accepted those terms. they can be found to have provided consideration sufficient to support a binding agreement to negotiate in good faith. a retailer store. which would allow the general contractor’s bid to be accepted.S. a home improvement store. Drennan v. P. Where the parties exchanges promises of value to each other. D refused to perform the work for the price it had bid saying that they had made a mistake in the bid and could not do the work for less than an amount which was nearly twice as much. Additional terms included in a box shipped by the seller do become part of the contract between the parties. a real estate developer. Zeidenberg Hill v. D bought a CD-ROM database with a license restriction. the party that makes the mistake will bear the loss that it caused the other party in reliance. the renewal . In return. promised that it was set to happen and P sold his bakery and moved in reliance on the promise. Division of Grace Retail Corp. limiting the consumer-purchaser to non-commercial use. In the current case. are relied upon may be enforced to prevent injustice even if the promise itself would not be sufficiently definite to meet the requirements to form an offer for a binding contract. Calldata Systems Development. P had established the three elements necessary for promissory estoppel.M. P. bought a Gateway 2000 computer system from the D. Grossman Toys. It is not necessary that the option agreement contain all the terms of the K as long as it contains a practicable. D submitted a low bid for paving portion of a project. under 2-206 when after an opportunity to inspect the goods. D appealed on the basis that an arbitration clause was contained in P’s computer box and that they had accepted this agreement when they kept the computer for more than thirty days. but none of the equipment was ever delivered and no payment was made. v. the party will be able to recover reliance damages for that performance based on the doctrine of promissory estoppel. v. Marine Corps to provide a combat command control system. the buyer had accepted and was bound to abide by the license. D promised to withdraw the premises from the rental market and negotiate a final lease with P. made a 5 year lease K with D. v. Inc. Channel Home Centers. Hoffman v. The existence of a license restriction was declared by shrinkwrap packaging but the terms were inside the packaging and not on the outside. even if the purchaser is unaware of the additional terms and the purchaser’s acceptance of the terms is by not returning the item purchased. Thus. executed a letter of intent to lease a certain mall premises from D. they brought suit in Federal Court. The court found that the subcontractor would have had reason to expect that the general contractor would rely on the bid. and indeed would want him to rely on the bid and had a stake in that reliance. which was relied upon by P. Promises that a party can reasonably expect will be relied upon. A party that can reasonably expect another party to rely on a price offered to do work cannot revoke that offer on the basis of mistake. The letter helped D obtain financing for purchase of the mall. P produced equipment for computer stations. If a buyer is presented with additional terms and offered the opportunity to reject and return the goods and subsequently does not reject the goods. D representative strung him along and gave advice in how to make it happen. he fails to make an effective rejection. P owned a bakery but wanted to operate D grocery store franchise. objective method of determining the essential terms. but one party insists that the other commence performance. Burlington Company P. Star Paving Co. v. Inc. D had made numerous promises but not enough that would establish a contract to establish a store that P would run. This is a binding preliminary agreement. D ignored the license and resold the information on the CD database.ProCD.

This clause of the K sets forth a reasonable and objective test to determine the price of the renewal K. became dissatisfied with the agreement and . the trial court had the authority to set a shipping rate and require the parties to negotiate and mediate with each shipping season. Richard St. Flagship Properties. Streit D bought Corn from P. substantial payment of the purchase price. P sent in writing that it wanted to renew the lease. must be considered in determining what constitutes a reasonable time under section §2201(2). Klewin. Before the lease expired. Before his death. unless written notice of objection of its contents is given within ten days after receipt. Inc. unbeknownst to D and his mother. including custom and practice of the parties (i. Since the parties intended to be bound to the contract. P and D entered into a long-term contract that required D to pay for shipping via a primary and secondary pricing mechanism.R. a writing in confirmation of the contract which is sufficient against the sender is received and the merchant receiving it has reason to know of its contents. The continuance of possession by a purchaser who is already in possession may be sufficiently referable to the parol K of sale to constitute a part performance thereof. Refused delivery and Didn’t pay. the writing requirements of § 2-201(1) are considered to be satisfied if. but it does not need to be signed by the party against whom the contract is sought to be enforced. Inc. So the option K is not indefinite and thus enforceable. so that they are strong circumstantial evidence of its existence. rates were to be determined by the prevailing rate within the mall and this gave the agreement the definiteness that is needed for an option K. v. or possession can be enough. Under § 2-201(2). v. Improvements made to land purportedly made in reliance upon an oral K must indicate the existence of the K in such a way that the improvements would have been improvident to make in the absence of some such K. A K is not within the statute of frauds unless its terms are so drawn that it cannot by any possibility be performed fully within one year. Lo Greco D forewent obtaining an independent source of income in order to live with his family and participate in the family venture in exchange for receiving the property after his mother and stepfather died. The reasonableness of conduct is determined by the facts and circumstances existing at the time. C. Burlington put the store place for rent and P moved out and brought this lawsuit. Even if the improvements by themselves were insufficient to constitute part performance. course of dealings). An exception to the Statute of Frauds is Part performance. All relevant circumstances. After the parties were unable to agree on a shipping rate for the year 1986. The time for performance must be definitely fixed at more than one year. Inc rental for the renewal period will be renegotiated to the then prevailing rate within the mall. D sent back the prevailing rate and dispute as to the rent price arose. Ansgar Mills Inc. v. the stepfather. A party is estopped from asserting the statute of frauds to prevent the enforcement of an oral contract where (1) a party has so substantially changed his position in reliance upon the contract that he would suffer an unconscionable injury if the contract were not enforced and (2) the party seeking to assert the statute of frauds will be Monarco v. P filed a declaratory judgment action seeking to have the Court fix the shipping rate for the year. Richard v. Armco. A writing is still required. some combination of improvements.Oglebay Norton Co. within a reasonable time.e. One statutory exception or modification to the statute of frauds that has surfaced applies to merchants.

P sought to return the automobile and sued to recover the purchase price. is either void or voidable at his option. and while there is some evidence of a change in the conduct of P’s business affairs. Fred Howe Motors. P not only threatened D with a stoppage in deliveries if D failed to meet its demands. Therefore. These duties had not changed in anyway. there is not evidence of overreaching or fraud on the part of D. other than for necessaries. but P actually stopped deliveries. The parties rescinded the written contract and entered into an oral one as though it were the sole agreement. no consideration existed to support Plaintiffs’ demand for increased wages. The parties then orally agreed that Plaintiff would remove the rock for a stipulated price. Despite Defendant’s contention that the oral contract was not supported by consideration since the plaintiff did not take on any additional duties. wife of P Mr. Cundick v. elected to take the maximum retirement benefits during her lifetime. A contract is voidable on the ground of duress if the ―immediate possession of needful goods is threatened‖ and the threatened party could not obtain the goods from another source. v. but Plaintiff encountered solid rock shortly after the work began. Ortelere until her death. leaving P. who had been appointed his guardian ad litem. D has sufficiently proved that it acted under duress. P’s wife noticed nothing about his mental condition in participating with him in the months-long transaction. P was a subcontractor that D utilized as a supplier of components to make radar sets for the Navy. her election is voidable. A person entering into a contract by reason of mental illness incurs only voidable contractual duties provided he cannot act in a reasonable manner and the other party had reason to know of his condition. Ortelere’s condition. P. D either knew or should have known about Mrs. Grace Ortelere. D was coerced into agreeing to pay more. Inc. P purchased an automobile from D when he was a few months short of his twenty-first birthday even though he represented that he was twenty-one already.R. P Darwin Cundick agreed by written contract to sell all of his ranching properties to D J. Even if P misrepresented his age. This is to be distinguished from the contract being modified to include new terms without consideration. Domenico This case involves a contract modification to a services contract where the workers demanded increased compensation to perform the same duties as specified in the original contract. P Carmen Monarco. is not enforceable if not supported by consideration. A contract is voidable. Broadbent left his half of the joint property to his grandson. Here. A contract cannot be voided by reason of duress unless the aggrieved party can prove that it was deprived of free will and the duties under the contract cannot be . After P was awarded subcontracts for only those components on which it was the low bidder. Specifically. A person possesses mental capacity to contract where he has sufficient reason to enable him to understand the nature and effect of the act in issue. Loral Corporation. as the original contract stated that they were to travel by vessel to Alaska. Ortelere v. Broadbent. unjustly enriched if he is permitted to escape the obligations of the con The contract of a minor. the court held that the original contract was rescinded and a new contract was formed. at the option of a person suffering from a mental deficiency. Watkins & Son v. The Plaintiffs were already obligated by contract to perform their duties. sued to set aside the agreement on the ground that P was mentally incompetent to contract. The agreement was once amended in a manner favorable to P. Austin Instrument. After he became of age. Teachers’ Retirement Bd. Hence. P refused shipment on an existing subcontract unless D consented to substantial price increases and placed an order with P for all 40 components needed on the second subcontract. in accordance with certain equitable principles. An agreement to pay more after a demand for increased wages where there is a pre-existing duty to perform certain obligations. Inc. In the present case. who quit his job to care for Mrs. Ortelere. through his wife. P sought to have his wife’s election voided on the ground of mental incompetence. D consulted 10 other suppliers to inquire as to whether they could provide the components and no one could. Carrig Plaintiff Watkins & Son agreed to excavate a cellar for Defendant Carrig. the record lacked any evidence that his family and friends noticed a deficient mental condition. Alaska Packers’ Ass’n v. with no benefits beyond her death.Kiefer v.

where the party making the misrepresentation has superior knowledge.P. Whitinsville Savings Bank Defendant Whitinsville Savings Bank sold Plaintiff Swinton a house that was infested with termites.) discussion of the transaction at an unusual or inappropriate time. the persuasion may be characterized as excessive. 5. Bloomingfield School District P Donald Odorizzi sought to rescind his written resignation as a school teacher on the grounds that it was made under duress. 4. The Court defined undue influence as ―taking advantage of another’s weakness of mind. Absent a false statement. While a misrepresentation is not generally actionable unless it is a misrepresentation of fact rather than opinion. Defendant knew of the infestation but did not inform Plaintiff of the infestation. The Court held that P had pleaded sufficient facts to show that D had placed excessive pressure on P at a time when P was vulnerable and susceptible to over persuasion. J. for which Plaintiff can recover no damages. 3.) absence of third party advisers to the servient party. If a number of these elements are simultaneously present.) the use of multiple persuaders by the dominant side against a single servient party. Swinton v.) consummation of the transaction in an unusual place. 2. mistake. like the case at hand. after being arrested on criminal charges of homosexuality. and undue influence. Annino D sold a multi-family apartment with eight apartments to P knowing that the building had been converted into apartments without a building permit and in violation of the city zoning ordinance. D advertised it as a building that can be used for appts.) extreme emphasis on untoward consequences of delay.45. D listed the building as a rental property knowing that it did not comply with the city zoning ordinance. The owner of Defendant’s franchise. menace. Vokes v. sold Plaintiff Audrey Vokes. the misrepresentation may be regarded as a statement of fact even though it would be considered an opinion if the parties were dealing on equal terms. 6. alleges that we was coerced into resigning by his school principle and district superintendent.) statements that there is no time to consult financial advisers or attorneys. .090. Arthur Murray. Defendant merely concealed the termite infestation from Plaintiff. the concealment of a known defect is not actionable. Kannavos v.) insistent demand that the business be finished at once. D never disclosed this fact to P. While a party is not required to speak at all regarding a transaction. P. 7. Here. the facts do not demonstrate that the defendant made a misrepresentation or a representation at all regarding the condition of the home. Inc. if he does speak. or taking grossly oppressive and unfair advantage of another’s necessities or distress. satisfied by a third party.Odorizzi v. he must speak honestly and divulge all material facts bearing on the point that lie within his knowledge. undue influence usually involves someone in a dominant position taking advantage of someone in a servient position. dancing lessons for a total cash outlay of $31.‖ The Court held that. Pattern for over persuasion: 1. fraud. Davenport.

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