Contracts 2 cases

Alyeska Pipeline

- Define inconsistency: "absence of reasonable harmony in terms of the language and respective obligations of the parties."

Bishop v. Eaton

- Eaton told Bishop that he would cover his brother's financial needs if Bishop could find the means for him. Bishop signed a promissory note for money for the brother. Eaton never received notification of this. Bishop sued Eaton for repayment. -Exception: But, if the act is of such a kind that knowledge of it will not quickly come to the promisor, the promisee is bound to give him notice of his acceptance within a reasonable time after doing that which constitute the acceptance

K&G Construction Co v. Harris

- Harris was to be paid by KG in installments. In the course of building, Harris caused the collapse of a wall. KG withheld installment payment due because damage had not been repaired or paid for, and Harris stopped work. -- Modern rule: there is a presumption that mutual promises in a contract are dependent and are to be so regarded, whenever possible - Breach was material due to the fact that the damage to the wall amounted to more than double the payment due on August 10

Sally Beauty v. Nexxus Products

- MATERIAL CHANGE in the deal upon purchase - Sally Beauty has no interest in promoting Nexxus Products because they are competitor

Masterson v. Sine

- Masteron's owned a ranch as tenants in common, and conveyed it to Dallas's sister and her husband, Medora and Lu Sine. The deed stated a reserved right unto the grantors herein an option to purchase the property on or before February 25, 1968, for the same consideration as being paid now plus their depreciation value of any improvements. After the conveyance, Dallas went bankrupt. The trustee and Rebecca brought declaratory relief to enforce the option. - When the parties to a written contract have agreed to it as an integration - a complete and final embodiment of the terms of an agreement - parol evidence cannot be used to add to or vary its terms o 240(1)(b) restatement 1 contracts: permits proof of a collateral agreement if it is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract o UCC: if the additional terms are such that if agreed upon, they would certainly have been included in the document in the view of the court, then evidence of their alleged making must be kept from the trier of fact

Griffith v. Brymer

- P rented room at hotel for king's procession. King was in surgery and no longer in procession. Neither party knew. P entitled to money back for room. o At time contract was made, it was mistaken assumption o Went to the root of the contract

Kendall v. Ernest Pestana Inc

- Whether or not, in the absence of a provision that such consent will not be unreasonably withheld, a lessor may unreasonably and arbitrarily withhold his or her consent to an assignment - Minority (preferred): where a lease provides for assignment only with the prior consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the assignment

Baxter v. Healthcare

- Why is a change of corporate ownership through a stock sale not an assignment of all the corporation's contracts? The company is still the contracting party. Your contract is with the corporation in both of those situations.

Akers v. JB Sedberry

-Akers and Whitsitt offered to resign after 90 days. Sedberry did not accept and continued to discuss tasks to be completed on the job. Days later, Sedberry sent a letter saying she accepted the termination -an offer made by one to another in a face to face conversation is deemed to continue only to the close of their conversation, and cannot be accepted thereafter

Albre Marble and Tile Co v. John Bowen Co

-Albre was subcontractor for John Bowen Co. Clause in contract required "furnish and submit all necessary or required samples, shop drawings, tests, affidavits, etc., for approval, all as ordered or specified." Job was terminated. Albre did not actually perform any work on the building itself but sued Bowen in quantum meruit for the value of the work in preparation for performance. - A party may recover for payments made or obligations reasonably incurred in preparation for performance of the contract - General remedy if you're successful in impracticability: rescinding contract

Hochester v. De La Tour

-April: P and D make contract regarding tour. May 11: D notifies P that tour is off. May 22: P sues D for damages. May 25: P books another job to start in July. June 1 - Sep 1:trip was supposed to take place. -- As soon as De la Tour informed Hochster of his intent to breach their agreement, Hochster was entitled to seek damages for the breach. - When one party to an agreement is informed by another party to the agreement that the second party intends to breach the agreement, the first party has an option to file suit for damages immediately in anticipation of the breach, or to wait until the act was supposed to be done

Nolan Ryan Baseball

-Bryan, 12, bought card at ball mart for $12. Card said "1200." Bryan asked cashier, and she said 12. -Bryan should have reasonably known it wasn't worth 12

Taylor v. Caldwell

-Caldwell owned music hall and rented it to Taylor. Hall was destroyed by fire. Taylor brought suit for damages. -The continuing existence of the hall at the time the concerts were to be given is essential to performance of the contract between Taylor and Caldwell, and thus the destruction of the hall excuses performance by both parties. -TIMING OF CONTRACT IS KEY

TW Oil Inc v. Consolidated

-Contract listed sulfur content at .5% but content was at .92%. Edison rejected shipment. TW offered to cure the defect but Edison rejected and brought suit. - Whether a seller who, acting in good faith and w/o knowledge of any defect, tenders noncofrming goods to a buyer who properly rejects them, may offer to cure? Yes

Mattei v. Hopper

-Contract to purchase land for shopping center development. "Subject to [broker] obtaining leases satisfactory to the purchaser." -- Rule: "Where the question is one of judgment, the promisor's determination that he is not satisfied, when made in good faith, has been held to be a defense to an action on the contract"

Oloffson v. Coomer

-Coomer = seller. Oloffson = buyer. April contracts: sale of corn @ $1.12/bu; delivery in October and December. June 3: Seller repudiates; market price $1.16/bu. After delivery dates pass (October and December), buyer covers at $1.35/bu and $1.49/bu. Oloffson's (buyer's) recoverable damages are to be determined as of what date? -- After this, Oloffson had a duty to pursue other remedies under the UCC. Under Section 2-610 of the UCC, when a merchant buyer learns of a seller's anticipatory breach, the buyer may await performance by the repudiating seller for a commercially reasonable time as long as the buyer deals with the seller in good faith, or may resort to other remedies under UCC Section 2-703 or 2-711.

PDM v. Brookhaven

-D and P agree that purchase price would be due from Brookhaven to PDM within 30 days of PDM's completion of the tank. November: K for PDM to install water tank at Brookhaven—pay on completion. Jan. 3: PDM sends letter to Diversified Finance-- requesting "escrow" and "withholding order" until notified. March 19: Loan not obtained; PDM asks for personal "guaranty". March 31: Brookhaven sends financial statement; no guaranty. April 15: Work start-date passes; Brookhaven begins to secure other water sources. April 22: PDM indicates willingness to begin work. -- UCC 2-609: a party may demand written assurance of performance and suspend its own performance until after receiving such assurance only if reasonable grounds for insecurity exist as to the other party's performance o PDM's actions were not within protection provided

Walker and Co v. Harris

-D complained to P to have them clean the sign. P did not clean sign. D stopped making payments because P did not fill obligations of contract to clean and maintain. P sued to collect. P wins. - RS 241 application: o A. Dry cleaner is injured. What benefit did they expect? Advertising, marketing. Sign is dirty and may damage advertising efforts. o B. Had to show how many customers they would have gotten if sign was clean o C. sign business would lose 5k which is a lot for a small business o D. High. Sign place cured a week later, however, they avoided the first several notifications from dry cleaner. o E. We need to know more

Pacific Gas and Electric v. GW Thomas Drayage and Rigging

-D entered into contract with P to furnish labor and equipment necessary to remove and replace the upper metal cover of plaintiff's steam turbine. Contract stated that D agreed to perform work "at own risk and expense" and indemnify P against loss, damage, etc. During work, cover fell and injured the turbine. P sought recovery o Test of admissibility of extrinsic evidence: not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible o Excluding parol evidence merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended

Morin Building Products v. Baystone Construction

-D hired P to complete a certain type of aluminum walls for an addition to building. Morin successfully completed the walls. However, when viewed from an angle in the sunlight, the walls did not have a uniform appearance. GM agent rejected the walls and D hired another contract to replace them. -- However, when the contract involves personal aesthetics or fancy, satisfaction depends on the owner's good faith judgment. Morin's contract required it to supply siding for use by General Motors in its factory.

Mineral Park Land Co v. Howard

-D made contract with public authorities to build bridge. D and P made contract that D would take necessary materials from P's land. D used other materials in addition. - Impossible: when a thing is not practicable - Impracticable (do not use impractical, that is incorrect): when it can only be done at an excessive and unreasonable cost

Sherwood v. Walker

-D sold P Rose the cow at a low price. D found out Rose was pregnant and would not sell. P sued to recover the cow, stating the sale was already final. o the mistake of fact must truly relate to the substance of the contract, rather than merely the quality of the contracted-for item

Nursing Care Services v. Dobos

-Doctor ordered around the clock care for Dobos. After leaving the hospital, the doctor ordered 48 hours of post releases care and two weeks of at-home care. The bill was $3,723.90. Mrs. Dobos argues that she never signed a written contract nor orally agreed to be liable for the nursing services. -Implied offer after emergency subsided o Limitation: liability is imposed to pay for services rendered by another only when the person for whose benefit they were rendered requested the services or knowingly and voluntarily accepted their benefits

Firestone and Parson Inc v. Union League of Philly

-F and P bought painting for 500k. Later found out it was forgery. No one knew at time of the sale. -no rescission: if generally regarded as original, then no mistake

Foxco Industries v. Fabric World

-Foxco contracted with Fabric World for first quality goods. When fabric arrived, fabric world refused to pay for portion of goods they considered defective. They then place another order in October. There was a decline in the materials in the textile industry. Fabric world cancelled order. Foxco said they were already processing and the order could not be cancelled. Fabric world agreed but said if there was a single flaw, they would return the entire shipment. Foxco did not ship believing this would be impossible. o The parties to a contract are presumed to have intended the incorporation of trade usage in striking their bargain

Ganley v. G and W Limited

-Ganley alleges that he spoke with Mr. Grunley and Mr. Walsh about accepting 8% commission of a sale for property. There was no response concerning that amount by either of them. At the meeting on april 14th with a prospective buyer, an offer was made to appellees for only a portion of the property. It is alleged that Mr. Grunley said to Ganley, If you'll accept four percent we'll accept fifty cents per square foot. Grunley became aware that Ganley was co-brokering but wasn't sure what kind of agreement they had. Grunley assumed when leaving the room that they had an agreement. -Under circumstances which require a silent party to speak so that the injured party may take steps to protect himself against loss which might otherwise result, the silent party will be estopped from asserting the defense which he would have had but for his silence

Gardner Zemke v. Dunham Bush

-Gardner Zemke is the general contractor for a Department of Energy project. They issued an order to Dunham Bush for chiller (air conditioning equipment) to be used for the project. The order contained a one-year manufacturer's warranty provision and the requirement that the chillers comply with specifications attached to the order. Dunham Bush responded with a pre-printed acknowledgement form containing extensive warranty disclaimers, a statement that the terms of the Acknowledgement controlled the parties' agreement, and a provision deeming silence to the acquiescence to the terms of the acknowledgement. They proceeded with the transaction and did not acknowledge the discrepancies in the contract. Zemke alleges that the chillers did not comply with their specifications, and they had install nonconforming goods. 5 or 6 months after this, a DOE rep told Zemke that there were problems with two chillers. Dunham Bush offered to send their mechanic, but would only absorb the cost of service if the problems were within any component parts it provided. Gardner Zemke rejected the order claiming the DOE still had a warranty and would not issue a separate purchase order for warranty repairs o Knockout rule: different terms (NOT ADDITIONAL) cancel each other out, then look to article 2 to find gap fillers. As a practical matter, buyers are usually favored

Hale v. Groce

-Groce, an attorney, was retained by a client to prepare testamentary instruments which were to include a bequest to Hale. Groce had failed to include the bequest, but this fact was not learned until after the client died. -- Issue in breach of contract: need to show that you were a beneficiary somehow who is entitled to enforcement

Krell v. Henry

-Henry requested to rent room from Krell for King's coronation. Henry sent letter to Krell with deposit. King became ill and ceremony was cancelled. - AT THE TIME THE CONTRACT WAS MADE, no one was mistaken. AFTER CONTRACT WAS MADE, plan was disrupted. - Frustration of purpose = point of performing is gone

Lawrence v. Fox

-Holly loaned the defendant $300, telling defendant that he owed that sum back to the plaintiff, Lawrence, the next day. He doesn't pay. Lawrence sues Fox. -doesn't matter who gives consideration to who as long as it is bargained for

Hunt Foods v. Doliner

-Hunt agreed to give Doliner about $5.9 million in cash, or $5.7 million in stocks. They could not agree on form of acquisition, so they tabled negotiations. Hunt worried that Doliner would sell to a third party, so they demanded an option from Doliner to purchase stock at $5.50 a share. Hunt exercised the option, and paid $1,000 for the stock. Doliner thought that the option was only to be used if he solicited an outside offer, but Hunt claims they could exercise the option with notice whenever they chose. -If additional terms are such that, if agreed upon, they would certainly have been included in the document in the view of the court, then evidence of their alleged making must be kept from the trier of fact

Nanakuli Paving v. Shell Oil

-In 1963, Nanakuli and Shell entered into a five-year contract, under which Nanakuli agreed to buy its asphalt requirements from Shell, and Shell agreed to supply these requirements. The contract stated that the price of asphalt would be Shell's posted price at the time of delivery. Nankuli sued Shell for breach of contract for refusing price protection, which they feel they are entitled to under both trade usage and court of performance o 3. Usage should be allowed to modify the apparent agreement (court uses this theory) o Assumption that the parties have included those usages unless they cannot reasonably be construed as consistent with the express terms

Diamond Fruit Growers v. Krack Corp

-In February 1981, Krack sold a unit to Diamond Fruit Growers, and after about a year, the unit began leaking ammonia from the tubing. An engineer found the source of the leak to be from the tubing. After inspection, Diamond sued Krack to recover the loss in value of fruit that it was forced to remove from the storage room as a result of the leak. Krack then brought a third party complaint against Metal Matic and Van Huffel, another tubing supplier, seeking contribution or indemnity in the event that it was held liable to Diamond o If the offeror does not assent, but the parties proceed with the transaction as if they have a contract, their performance results in formation of a contract

Seaver v. Ransom

-Judge Beman promised that if she signed the will he would leave plaintiff enough money to make up the difference. He died, and the will made no such provision. Niece sues the estate to recover the the value of the home and the extra money promised. - Right of beneficiary to sue on contracts made for his benefit is confined in four ways: • 1. Confined to cases where there is a pecuniary obligation running from the promisee to the beneficiary, a legal right founded upon some obligation of the promisee in the third party to adopt and claim the promise as made for his benefit • Farley v. cleveland • Lawrence v. fox • 2. Confined to cases where the contract is made for the benefit of the wife • Close most closely follows this • 3. Upheld in public contract cases where the municipality seeks to protect its inhabitants by covenants for their benefit • 4. Cases where, at the request of a party to the contract, the promise runs directly to the beneficiary although he does not furnish the consideration

Joppich

-July 1997: Joppich buys residential lot from Millis. Millis has a repurchase option: if construction does not commence in 18 months, Millis can repurchase the lot for 90% of sale price. Option expires after 5 years. Sept. 1999: Millis exercises option -nominal consideration is sufficient for an option contract -just because consideration isn't paid, does not mean option doesn't stand

Wholesale Sand and Gravel v. Decker

-June 13: Excavation K made; payment was to be made within 90 days but did not specify a time for completion. June 15(?): work begins; too wet to continue. July 12: Decker says work is urgent. July 19: Decker calls; Goodnew will get "right on it." July 28: Goodnow never comes. "one more chance." End july: Decker terminate K. -- An anticipatory repudiation of a contract is a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives.

Kreyer v. Driscoll

-Kreyer entered into a contract to construct a home for the Driscolls. The Driscolls notified Kreyer that they were dissatisfied with the quality of the work and the delay involved. The Driscolls subsequently finished construction on the home themselves. Kreyer sued to recover the contract price. - To recover on an uncompleted construction contract, the contractor must make a good faith effort to perform and substantially perform his agreement - The doctrine of substantial performance is an exception in building contracts to the general rule requiring complete performance of the contract.

Lefkowitcz v. Great Minn Surplus Store

-Lef responded to ad in paper for fur coat and stole by showing up at the store to purchase. He was denied purchase due to "house custom" -Where the offer is clear, definite and explicit, and leaves nothing open for negotiation, it constitutes an offer, acceptance of which will complete the contract

Mitchell v. Lath

-M wanted to buy L's farm. Icehouse across the street that M didn't want. L orally agreed to remove icehouse in consideration for the purchase. M made a written contract to purchase the farm. L did not remove ice house. -Before oral agreement can alter the written contract, 3 conditions must exist: (1)agreement must be collateral (2) it must not contradict express or implied provisions of the written contract (3) it must be one that parties would not ordinarily be expected to embody in the writing

Martinez v. Socoma Companies Inc

-Martinez et.al. (plaintiffs) were members of a class of residents of the East Los Angeles neighborhood who were qualified for employment under the contracts. They brought suit when Socoma failed to establish manufacturing facilities and hire neighborhood residents. Martinez appealed from the trial court's judgment that they lacked standing as only incidental beneficiaries of the contracts. - A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties to the contract rescind it, but a contract may not be enforced by persons who are only incidentally or remotely benefited by it - Plaintiffs are not donee beneficiaries because it does not appear from the terms and circumstances of the contract that the Government intended to make a gift to plaintiffs or to confer on them a legal right against the defendants

Trave-lers Ins Co v. Bailey

-Mistake on insurance company's part about payment amount on Bailey's policy. Traveler's wants reformation on the policy -doesn't matter if it's unilateral or bilateral mistake in this scenario' -would not be equitable for courts to rescind

Aetna Casualty and Surety v. Murphy

-Murphy terminated lease in a building insured by Aetna. Murphy caused damage to the building. Murphy had insurance with Chubb. Murphy's contract w/ Chubb required him to give notice to the company of insured incidents "as soon as practicable" and notice of any claims or suits brought against him "immediately." Aetna brought suit against Murphy for damages, but Murphy did not forward this info to Chubb until 3 years later. -- Assuming we have express condition that you have to give notice within reasonable time otherwise insurance company is off the hook

Norcon Power v. Niagara Mohawk

-Norcon Power Partners, L.P. an independent power producer, entered into a twenty-five-year supply contract with Niagara Mohawk Power Corp., a public utility company. In 1994, Niagara sent Norcon a letter stating that it expected Norcon's costs to exceed $610 million in the next payment period. Niagara anticipated Norcon would not be able to pay and demanded assurances that Norcon would perform. Norcon sued Niagara, seeking a declaration that Niagara had no contractual right to demand assurance and a permanent injunction to stop Niagara from anticipatorily terminating the contract. -- Under the doctrine of anticipatory repudiation, a party can sue for breach of contract before the other party has actually breached if the other party has unequivocally indicated, by words or acts, that she cannot or will not perform her obligations under the agreement. RS 250

Phillips v. Moor

-On June 14, defendant examined hay and wrote an offer to the plaintiff's guardian, stating he would give the plaintiff 9.50 per ton for all but three tons, and for those he will give $5. On the 20th, plaintiff sends defendant a letter saying he would have hoped for more money, but he can take the hay. Defendant received the note the same day or next day and did not reply. The next Sunday, the hay was burnt in the barn. Plaintiff claimed price of the hay and defendant asserted that he was not liable to pay. -If the party to whom the offer is made makes known his acceptance of it to the party making it, within any period which he could fairly have supposed to be reasonable, good faith requires the maker, if he intends to retract on account of the delay, to make known that intention promptly

Lenawee County Board of Health v. Messerly

-Owner of land installs sewage tank improperly. Messerly's purchase, then sell to Pickles. K states "purchase as is." Pickles later discover raw sewage. Board of Health condemns the property. o Land contract can be rescinded if the land is intended for a particular use and both parties are unaware of a condition that makes it unsuitable for such use, but court DOES NOT ORDER RECISSION HERE o Rescission is not available, however, to relieve a party who has assumed the risk of loss in connection with the mistake. In the current case, the contract was made upon the assumption that the apartment was suitable for residential use. `

Alred Marks

-Owner of magazine put out anticipatory copies of magazine for a horse race in August. Race was cancelled because of the war. Owner sued advertiser to pay him for the advertisement in the magazine - Analyze under RS 265: o Was purpose substantially frustrated? Yes o Without fault? Yes o Non-occurrence was basic assumption? o His remaining duties to render performance discharged? o Language or circumstances indicate the contrary?

Evening News v. Peterson

-P acquired TV station that D worked for. His contract as an anchorman was included in the sale. No express provision concerning assignability but contained merger clause. D tendered resignation. P sued for injunctive relief -- Court finds the performance required of Mr. Peterson under the 1977 contract was o (1) not based upon a personal relationship or one of special confidence between him and post-Newsweek or its employees, and o (2) was not changed in any material way by the assignment to the Evening News

Day v. Caton

-P built wall between his property and D's property. P claims half of price from D. D claims him and P never had convo about wall -Express contract created -When one stands by in silence, and sees valuable services rendered upon his real estate by the erection of a structure, such silence, accompanied with the knowledge on his part that the party rendering the services expects payment therefore, may fairly be treated as evidence of an acceptance of it, and as tending to show an agreement to pay for it

Johnson v. Coss

-P entered into agreement with D to sell auto dealership. Agreement included an express condition, which provided that the agreement would be nullified if Coss was unable to secure the consent and approval of Ford. Ford advised D it would not approve the plan unless there was a majority owner and the dealership was capitalized. P brought suit against Coss for breach of contract and breach of the covenant of good faith and fair dealing. - One exception is the prevention doctrine, which requires a party to perform where he or she prevents the condition from occurring. The prevention doctrine excuses performance of the condition where the party against whom that condition operates contributes materially to the non-occurrence of the condition.

Meritt Hill Vineyards v. Windy Heights Vineyard

-P enters contract w/ D to purchase stock interest for Vineyard and gives deposit. Several conditions precedent. One precedent was that D would obtain insurance police and give notice. P discovered neither of these things happens. P refused to close and demanded return of the deposit. - Promise: a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made. RS 2 - Condition: an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due. RS 224

Howard c. FCIC

-P filed claim with D. Howards had harvested and sold the crop and filed timely notice and proof of loss with FCIC but before FCIC could inspect the field had plowed under the tobacco fields to prepare to plant a cover crop which would preserve the soil for future crops. FCIC denied the claim, claiming condition precedent. -- The distinction between a promise and a condition precedent is that a promise requires something not to be done, while a condition precedent requires that something is to be done, prior to the other party performing

Hobbs v. Massasoit Whip

-P mailed eelskins to D w/o receiving any specific order for them -D paid for eelskins received - P sent skins, D didn't pay -P wins -past dealing = standing offer

Wood v. Boynton

-P sold stone to D for $1. Later found out stone was worth $700 -Just a bad deal

Hill v Jones

-P was going to D's house. Walking through house, they found termite pamphlet and ripples in floor. Buyers assured termite inspection was clear. Upon moving in, P found out sellers had experience termite damage and had it treated several times. -o A fact is material if it is one which a reasonable person would find important in determining his choice of action in a particular transaction. o Thus, if this is determined to be a material fact, sellers violated their duty to disclose the information to buyers and can be held liable for misrepresentations and nondisclosure.

Missouri Public Service v. Peabody Coal

-Peabody refused to continue delivering coal after negotiations with MPS failed. It had adequate supplies, but argued that non-performance was justified because excessive economic loss excused non-performance under doctrine of commercial impracticability. Court ordered specific performance. - Delay in delivery or non-delivery in whole or in part by a seller is not a breach of his duty under a contract if performance has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made - Anticipatory repudiation occurs when either party repudiates the contract with respect to a performance not yet due, the loss of which will substantially impair the value of the contract to the other

Speckel v. Perkins

-Perkins attorney wrote to Speckel's attorney offering settlement for 50k. He meant 15k. Court ruled that P attorney should have known that S attorney was not trying to settle for 50k. -Obvious mistake

Macke Co v. Pizza of Gaithersburg

-Pizza contracted with Virginia to have vending machines installed. Virginia was purchased by Macke. Pizza sought to terminate contract. Macke brought suit for damages. -- In the absence of a contrary provision (there was none here) rights and duties under an executory bilateral contract may be assigned and delegated, subject to the exception that duties under a contract to provide personal services may never be delegated, nor rights be assigned under a contract where delectus personae was an ingredient of the bargain

Ardente v. Horan

-Plaintiff made bid to defendants for property. D sent agreement to P. P returned agreement which a check and a letter about inclusion of several items in the home with the sale. D said no and returned check. -acceptance cannot impose additional conditions, nor may it add limitations

Hancock v. ATT

-Plaintiffs sought to sue At&T because they claim U-Verse is plagued by defects and deficiencies. They filed suit in Oklahoma, and the court dismissed their claims due to the forum selection clause and arbitration clause in the contract. The TV/Voice terms have the forum selection clause, providing that in the event of litigation, the customers agree to submit to the jurisdiction of the courts located within the county of Bexar County, Texas. The Internet terms include an arbitration provision, stating that customers agree to arbitrate all disputes and claims based in whole or in part upon the internet services. o If clickwrap gives a consumer reasonable notice of its terms and the consumer affirmatively manifests assent to the terms, the consumer is bound by the terms

Ford Motor Credit Co v. Russell

-Purchase contract was a different price and interest rate than the originally advertised price due to Russell's poor credit history. She defaulted on several payments. Ford repossessed car and resold. Russel sues, claiming price she paid was different then original price. Held for ford -advertisement did not constitute an offer of sale to general public

Donovan v. RRL Corp

-RRL advertised sale of a used car in newspaper. Newspaper made error, listing price well below what RRL intended. Donovan wanted to purchase, but RRL rejected due to mistaken price. Favor of RRL -Rewards: Certain advertisements have been held to constitute offers where they invite the performance of a specific act w/o further communication and leave nothing for negotiation -RS 153 Unilateral Mistake -Price is a fundamental assumption of a contract in addition to materially impacting the value of the contract

Glover v. Jewish War Veterans

-Reward was put out for info about murderer. Police went to the murderer's girlfriend's mom's house, Mary Glover. Glover gave them info about where the two were, and the murderer was caught. Glovers sued to claim reward. They didn't know of the reward when they gave info to police. -It is impossible that there should be an acceptance unless the offeree knows of the existence of the offer

Steuart v. McChesney

-S executed agreement granting M a right of refusal on land. M would have right to buy back if offer was ever made on property by anyone else. S received offer ten years later. M sought to exercise right of refusal. S refused and filed to cancel right of refusal. -o Plain meaning rule: Where language is clear and unambiguous, the focus of interpretation is upon the terms of the agreement as manifestly expressed, rather than as silently intended

Snyder v. Lovercheck

-S wanted to buy wheat farm from L. On tour, L explained about 100 acres had some problems with rye in the past. After visiting 10-12 more times, S made offer. S later discovered that 1800 acres had a problem. oL was not fraudulent in representation o A seller owes no duty of care to a buyer to ensure the accuracy of a representation made by the seller, or to warn the buyer not to rely, when the contract clearly and unambiguously allocates the risk in question to the buyer o Depart from the PER only if parol evidence is used to establish a separate and distinct contract, a condition precedent, fraud, mistake or repudiation

Longergan v. Scolnick

-Seller puts ad in newspaper. Buyer inquires. Seller writes form letter to buyer with description of land and directions. Buyer writes Seller confirming he found right property and inquiring about potential escrow account. Seller writes next day, saying he found property and must decide fast. Seller then sells to someone else. Buyer receives letter two days after sale is complete. Buyer writes seller next day and says he will purchase and starts escrow. -offer: expression of fixed purpose to make a definite offer to a specified offeree

Adams v. Lindsell

-Sep 2: seller sends letter offering to sell wool to buyer; offer gets delayed in delivery. Sept 5: offer arrives and buyer mails acceptance. Sept. 8: seller sells to someone else. Sept 9: acceptance arrives to seller. -The offeror did not take advantage of dictating time for acceptance. Offeree can't control because there is no more information

Jacob and Young v. Kent

-Specification in contract that pipe be reading pipe. One pipe wasn't. Kent demanded replacement. Replacement of the pipe, however, would require substantial additional work and expense by Jacob. Additionally, the existing pipe was of the same quality as Reading pipe and was supplied based on an innocent mistake by Jacob caused by the inattention of its subcontractor. -- Jacob substantially performed its contract with Kent with only trivial defects and is thus entitled to receive the remainder of the amount owed under the contract

Drennan v. Star Paving

-Star Paving made an offer to Drennan by submitting a bid. Drennan got the general bid. Star Paving miscalculated and said they could no longer do the work -offers can be revoked before accepted, but in this case, that would be unfair (construction)

US v. Wegematic

-The Board ordered the computers and Wegematic accepted. Wegematic subsequently twice delayed shipment and ultimately cancelled the contract, citing "engineering difficulties." -Under UCC 2-615, delay in delivery is not a breach if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made.

Klockner v. Green

-The Klockners took care of their stepmother who died. Edith wanted to leave them property in her will, but then she died. Children testified they would have taken care of their mother regardless of receiving property, so appellate court did not rule in their favor -RS 55: If an act is requested by the offeror as consideration for a unilateral contract, the act need only be given with the intent of accepting the offer

Oppenheimer and Co v. Oppenhem, Appel, Dixon and Co

-The agreement provided that if Oppenheimer failed to obtain written consent, the agreement was to be deemed null and void. Oppenheimer's attorney telephone OAD's attorney on the day of the deadline and informed him that the landlord's consent had been obtained. The following day, OAD informed Oppenheimer that the agreement and sublease were invalid for failure to timely deliver the landlord's written consent. Oppenheimer filed suit for breach of contract, asserting that OAD waived or was estopped by virtue of its conduct from insisting on the physical delivery of the landlord's written consent and that Oppenheimer had substantially performed the conditions set forth in the letter agreement. - Substantial performance is not ordinarily applicable to excuse the nonoccurrence of an express condition precedent - Condition precedent: an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises

Transatlantic Financing Corp v. US

-US chartered Transatlantic to transport wheat from US to Iran, but the canal was closed because of the Egypt invasion. Transatlantic claims extra compensation for the longer voyage • The court listed three conditions that must occur for the doctrine of impossibility to apply: • First, something unexpected must have occurred. • Second, the risk of the unexpected occurrence must not have been allocated either by agreement or by custom. • Finally, occurrence of the contingency must have rendered performance commercially impracticable.

Vogt v. Madden

-Vogt and Madden had an oral agreement in which Madden would farm 70 acres of Vogt's land for the year 1979. The agreement was renewed for 1980. In 1981, Vogt planned to raise beans on the land in 1981 because wheat crops weren't making any profit. Vogt claims that Madden had no objection and renewed the agreement. Madden argues that no renewal was made. -previous transactions would not give rise to assent by silence

International Filter v. Conroe Gin

-Waterman (Int. Filter) send letter to Conroe Gin to furnish a water softener. Becomes contract "when accepted by the purchaser and approved by an executive officer of the Int. Filter." Solicitation. Not offer. Def. responded asking for shipment. Plaintiff responded noting delivery date and mailed letter. (this is the acceptance). Def. countermanded. Plaintiff denied countermand. -When form of acceptance is not prescribed by parties, acceptance can be in any form and no notification is necessary -unilateral

Scarpitti v. Weborg

-Weborg rejected Scarpitti's plans to build 3 car garage. He approved other people's plans.Scarpitti sued. Court ruled Weborg was 3PB of implied contract between Weborg and the developer -Rule: a party becomes a third party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself (spires) UNLESS the circumstances are so compelling that recognition of the beneficiary's right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary of the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance

Polaroid Corp v. Rollins

-Whether or not Polaroid and Occidental have valid, binding, and enforceable indemnification contracts with Rollins under which Rollins is to indemnify and to save the plaintiffs harmless from all liability and loss for releases or a substantial threat of release of hazardous substances at the Bridgeport site. -If an offeror prescribes an exclusive method of acceptance, only an acceptance in the manner prescribed will bind the offeror; but if an offeror merely suggests a permitted method of acceptance, other methods or acceptance are not precluded

Rouse v US

-Winston gave AC a promissory note for a heating plant. Winston then sold the house to Rouse, and Rouse agreed to assume all debts and to assume the payment of the heating plant. Winston then defaulted on her note. Rouse claims Winston fraudulently misrepresented the condition of the heating plant. -- One who promises to make a payment to the promisee's creditor can assert against the creditor any defense that the promisor could assert against the promisee

Vertex v. City of Waterbury

-Y2K problem. P installed a certain software on D's comp and performed services outlined in P's proposal. After, P submitted proposal to remedy additional problems, and alleges D accepted by refused to pay. D argues additional work was in the scope of the already contracted work -o Implied in fact: same as an express contract, except that assent is not expressed in words, but is implied from the conduct of the parties o Implied in law contract: not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation. May arise due to one party being unjustly enriched to the detriment of the other party

ProCd Inc v. Zeidenberg

-Zeidenberg purchased the lower price package at a retail outlet and began to sell the data over the internet. Disks in lower priced package included a license limiting the use of the application program and information in the database to non-commercial pruposes

Chase Precast

-contract to deliver road barriers -frustration of purpose

Ragosta v. Wilder

: Plaintiffs wanted to purchase Fork Shop from defendant. FS went up for sale and P wrote to D with an offer and a check for $20k. D returned the check, and made a counter offer, stating he would sell for $88k, and they have until Nov 1 to meet him at the bank and accept. Plaintiffs agreed verbally, and said they would close on Oct 10th. They began financing. On the 8th, D told P he no longer wanted to sell. P went to bank on the 10th, and D did not show up. -Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it

DeFontes v. Dell

DeFontes purchased a computer through the Dell catalog and selected a service contract with BancTec. Nicholas Long purchased his computer through Dell Marketing and opted for a service contract managed by Dell. After filing their complaint, Dell moved to compel arbitration citing the arbitration provision in the "Terms and Conditions Agreement" which they contended plaintiffs had accepted by accepting delivery of the goods. Mary DeFontes brought an action for herself and on behalf of a class of similarly situated persons against Dell alleging that its collection of taxes from them on the purchase of Dell optional service contracts violated the Deceptive Trade Practices Act. o UCC 2-204: contracts for the sale of goods may be formed in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract

Dickinson v. Dodds

June 12 at 9 am. On June 11, Dickinson found out that Dodds had been offering to sell the property to Allan. Dickinson then delivered a letter with Dodd's mother in law and he never got it. On the 12th at 7 am, Dickinson's agent found Dodds and delivered another copy of the acceptance to Dodds. Dodds said he already sold the property. Dickinson then found Dodd's at the railway station, but Dodds said it was sold. -a promise is not binding, and any moment before a complete acceptance by Dickinson of the offer, Dodds was as free as Dickinson himself

Manassas v. Couch

•Bought new van, noticed gray splotch •Couch intended to buy NEW vehicle, not one repaired by painting (caused 20% decrease in value; impairment was substantial