Contracts - Cases - Facts

Darner Motor Sales v. Universal Underwriters

1 - , those who make use of a standardized form of agreement neither expect nor desire their customers "to understand or even to read the standard terms." On the other hand, customers "trust to the good faith of the party using the form [and] ... understand that they are assenting to the terms not read or not understood, subject to such limitations as the law may impose." 2 - The limitations that the law may impose are that standard terms may be superseded by separately negotiated or added terms (§ 203), they are construed against the draftsman (§ 206), and they are subject to the overriding obligation of good faith (§ 205) and to the power of the court to refuse to enforce an unconscionable contract or term (§ 208). 3 - Although customers typically adhere to standardized agreements and are bound by them without even appearing to know the standard terms in detail, they are not bound to unknown terms which are beyond the range of reasonable expectation.... [An insured] who adheres to the [insurer's] standard terms does not assent to a term if the [insurer] has reason to believe that the [insured] would not have accepted the agreement if he had known that the agreement contained the particular term. 4 - Such a belief or assumption may be shown by the prior negotiations or inferred from the circumstances. Reason to believe may be inferred from the fact that the term is bizarre or oppressive, from the fact that it eviscerates the non-standard terms explicitly agreed to, or from the fact that it eliminates the dominant purpose of the transaction. The inference is reinforced if the adhering party never had an opportunity to read the term, or if it is illegible or otherwise hidden from view. 5 - Courts will not enforce unambiguous provisions in standardized contracts and insurance policies which are contrary to party's separate representation of intention reasonably relied on by other party or to purpose of transaction as known to parties; adopting Restatement (Second) of Contracts § 211 modifying parol evidence rule for standardized agreements containing nonnegotiated boiler-plate provisions; overruling prior inconsistent decisions.

Albre marble & Tile Co. v. John Bowen Co.

1 - . Although the defendant's conduct was not so culpable as to render it liable for breach of contract, nevertheless, it was a contributing factor to a loss sustained by the plaintiff which as between the plaintiff and the defendant the latter ought to bear to the extent herein permitted. 2 - We attach significance to the clause in the contract, which was prepared by the defendant, specifically requesting the plaintiff to submit samples, shop drawings, tests, affidavits, etc., to the defendant. This is not a case in which all efforts in preparation for performance were solely within the discretion and control of the subcontractor 3 - Where prime contractor's involvement in creating impossibility of performance of subcontracts was greater than that of subcontractor, prime contractor's conduct was a contributing factor to loss sustained by subcontractor, contract between prime contractor and subcontractor was prepared by prime contractor and specifically requested subcontractor to submit samples, shop drawings, tests, and affidavits to prime contractor, and acts requested by their very nature could not be wrought into the structure, subcontractor was entitled to recover from prime contractor for full value of those acts but was not entitled to recover expenses incurred prior to execution of contract.

Kirksey vs Kirksey

1 - A brother-in-law wrote to the widow of his brother, being 60 miles distant, that, if she would come and see him, he would let her have a place to raise her family. Shortly after, she removed to his residence, and he for two years furnished her with a comfortable residence, and then required her to give it up. Held, that the promise was a mere gratuity, and that an action would not lie for a violation of it.

Embry V. Hargadine, Mckittrick Dry Goods Co.

1 - A contract of employment terminated December 15th. Eight days thereafter the employee demanded a contract for another year, and stated that unless he obtained one he would cease work at once. The employer responded: "Go ahead, you are all right." Held, that the conversation, as a matter of law, created a contract for a year, and the court erred in making the formation of the contract depend on a finding that both parties intended to make one. 2 - we hold that, though McKittrick may not have intended to employ Embry by what transpired between them according to the latter's testimony, yet if what McKittrick said would have been taken by a reasonable man to be an employment, and Embry so understood it, it constituted a valid contract of employment for the ensuing year. 3 - We think no reasonable man would construe that answer to Embry's demand that he be employed for another year, otherwise than as an assent to the demand, and that Embry had the right to rely on it as an assent. The answer was unambiguous, and we rule that if the conversation was according to appellant's version, and he understood he was employed, it constituted in law a valid contract of re-employment, and the court erred in making the formation of a contract depend on a finding that both parties intended to make one.

Raffels V. Wichelhouse

1 - A latent ambiguity appeared when the contract did not specify which 'Peerless' was intended. There is nothing on the face of the contract to show that any particular ship called Peerless was meant but the moment it appears that two ships called the Peerless were about to sail from Bombay, there is a latent ambiguity. 2 - Parol evidence will be admissible for determining the actual meaning that each party assigned to that ambiguity. From the evidence presented, each party attached a different meaning to that ambiguity. If different meanings were intended on a material term of a contract, there is no mutual assent and there is no contract.

Schnell Vs Nell

1 - A wife bequeathed to certain persons each a specified sum, but left no property out of which the legacies or any part of them could be satisfied. 2 - After her decease, her husband agreed in writing with the legatees to pay them the several sums bequeathed to them by his wife in consideration of one cent, of the love and affection he bore his deceased wife, and the fact that she had done her part in the acquisition of his property, and that she had expressed a desire in her will that they should have such sums of money. 3 - Held, that the wife's will imposed no obligation on the husband to pay the legacies out of his property, and, as the wife had none of her own out of which they might be paid, his promise to pay them was not legally binding on him. 4 - Decedent, by her will, bequeathed a certain sum to each of plaintiffs, but left no property. Defendant then agreed to pay the legacies in consideration of one cent, his love and affection for his deceased wife, the fact that she had done her part in the acquisition of his property, and her desire, expressed in her will, that plaintiffs should have the money. In an action on the agreement to recover the amount of the legacies, held, that the considerations named were insufficient to support the contract.

Lonergan V. Scolnick

1 - Advertiser's form letter which was sent to person answering advertisement of land for sale and which merely clarified advertisement and described and located property, and subsequent letter answering inquiries about property and stating that inquirer would have to act fast since advertiser expected a buyer, constituted an offer qualified on prompt acceptance, and inquirer's delay of more than a week justified advertiser's sale to third party. 2 - The language used by the defendant in his letters of March 26 and April 8 rather clearly discloses that they were not intended as an expression of fixed purpose to make a definite offer, and was sufficient to advise the plaintiff that some further expression of assent on the part of the defendant was necessary. 3 - The advertisement in the paper was a mere request for an offer. The letter of March 26 contains no definite offer, and clearly states that it is a form letter. 4 - The statement that he expected to have a buyer in the next week or so indicated that the defendant intended to sell to the first-comer, and was reserving the right to do so.

Hill v. Jones

1 - Although sellers have attempted to draw a distinction between live termites4 and past infestation, the concept of materiality is an elastic one which is not limited by the termites' health. "A matter is material if it is one to which a reasonable person would attach importance in determining his choice of action in the transaction in question." 2 - . For example, termite damage substantially affecting the structural soundness of the residence may be material even if there is no evidence of present infestation. Unless reasonable minds could not differ, materiality is a factual matter which must be determined by the trier of fact. 3 - The termite damage in this case may or may not be material. Accordingly, we conclude that buyers should be allowed to present their case to a jury. 4 - Under the facts of this case, the question of buyers' knowledge of the termite problem (or their diligence in attempting to inform themselves about the termite problem) should be left to the jury. 5 - Inquiry by prospective private residence purchasers whether ripple in stair was termite damage imposed duty upon vendors to disclose what information they knew concerning existence of termite infestation.

Akers v. J.B. Sedberry, Inc.

1 - An employee's tender of resignation is a mere offer and not binding until it has been accepted by employer, according to its terms and within time fixed, in accordance with rules governing formation of contracts. 2 - In action by employee against employer for damages for breach of contract of employment, evidence sustained finding that employees' offer to resign, in conversation with employer, had not continued to time employer purportedly accepted offer, or that employer had earlier rejected offer. 3 - While she did not expressly reject it, and while she may have intended, as she says, to take the offer under consideration, she did not disclose such an intent to complainants; but, by her conduct, led them to believe she rejected the offer, brushed it aside, and proceeded with the discussion as if it had not been made.

Dickinson v. Dodds

1 - An open offer to sell terminates when the offeree learns that the offeror has already agreed to sell to someone else. The court stated that since Dickinson knew that Dodds' offer had been implicitly withdrawn when he learned that he had sold the property to someone else, there was no meeting of the minds at the time acceptance was made and therefore a binding contract was not formed. 2 - There was no consideration given for the undertaking or promise, to whatever extent it may be considered binding, to keep the property unsold until 9 o'clock on Friday morning; 3 - that this promise, being a mere nudum pactum, was not binding, and that at any moment before a complete acceptance by Dickinson of the offer, Dodds was as free as Dickinson himself 4 - Before there was any attempt at acceptance by the Plaintiff, he was perfectly well aware that Dodds had changed his mind, and that he had in fact agreed to sell the property to Allan. It is impossible, therefore, to say that there was ever that existence of the same mind between the two parties which is essential in point of law to the making of an agreement. I am of opinion, therefore, that the Plaintiff has failed to prove that there was any binding contranct between Dodds and himself.

Lenawee County Board of health v. Messerly

1 - Appellant and appellee both mistakenly believed that the property which was the subject of their land contract would generate income as rental property. The fact that it could not be used for human habitation deprived the property of its income-earning potential and rendered it less valuable. However, this mistake, while directly and dramatically affecting the property's value, cannot accurately be characterized as collateral because it also affects the very essence of the consideration. 2 - Although the Pickleses are disadvantaged by enforcement of the contract, performance is advantageous to the Messerlys, as the property at issue is less valuable absent its income-earning potential. Nothing short of rescission can remedy the mistake. Thus, the parties' mistake as to a basic assumption materially affects the agreed performances of the parties. 3 - If the "as is" clause is to have any meaning at all, it must be interpreted to refer to those defects which were unknown at the time that the contract was executed.15 Thus, the parties themselves assigned the risk of loss to Mr. and Mrs. Pickles. 4 - Vendor and purchasers' mutual mistaken belief that property was suitable for human habitation and could be used to generate rental income, when in fact property was uninhabitable because of inadequate and uncorrectable sewage system installed by predecessor in title, did not justify rescission of land contract, in light of clause in contract which provided that purchasers agreed to accept property "in its present condition." 5 - "As is" clause waives implied warranties which accompany sale of new home or sale of goods and imposes upon purchaser of new home assumption of risk of latent defects; however, such clause does not preclude purchaser from alleging fraud or misrepresentation as basis for rescission.

Hayes vs. Plantation Steel Co. Founder

1 - Assuming that employer in legal effect made promise to employee when its officer said that company "would take care" of employee after his retirement, employee failed to supply required consideration that would make promise binding, where employee had announced his intent to retire well in advance of any promise by employer, his expectation of pension was not based on any statement made to him or on any contract of company officer relative to him when he announced his intention to retire, and employee's long years of dedicated service were rendered without being induced by employer's promise. 2 - Work employee performed between employer's promise to "take care" of him after his retirement and date of his retirement did not constitute sufficient consideration to support promise, where employee left his employment because he no longer desired to work and was not contemplating other job offers or considering going into competition with employer. 3 - Employer was not estopped to deny obligation to pay employee yearly pension of $5,000, where employee's decision to retire was not induced by company officer's statement that employee would be "taken care of" after his retirement. 4 - Hayes received $20,000 over the course of four years. He inquired each year about whether he could expect a check for the following year. Obviously, there was no absolute certainty on his part that the pension would continue. Furthermore, in the face of his uncertainty, the mere fact that payment for several years did occur is insufficient by itself to meet the requirements of reliance under the doctrine of promissory estoppel.

Pierce v. Catalina Yachts, Inc.

1 - Catalina unilaterally drafted the damages bar and evidently included it in a preprinted standard limited warranty. Moreover, the jury's sizable award for the reasonable cost of repairing the boat's gel coat establishes that Catalina's breach deprived the Pierces of a substantial benefit of their bargain. 2 - Catalina acted in bad faith in failing to honor its warranty. This finding virtually establishes a "circumstance[ ] resulting in failure of performance that makes it unconscionable to enforce the parties' allocation of risk."28 Because the jury found that Catalina consciously deprived the Pierces of their rights under the warranty, the company cannot conscionably demand to enforce its own warranty rights against the Pierces 3 - in light of Catalina's bad faith, allowing the company to enforce the consequential damages bar would conflict with the commercial code's imperative that "[e]very contract or duty in the code imposes an obligation of good faith in its performance or enforcement."30 Finally, because it is self-evident that the Pierces did not bargain to assume the risk of a bad faith breach by Catalina, enforcing the bar against consequential damages would thwart AS 45.02.719's basic goal of implementing the parties' agreement.

Wholesale Sand & Gravel v. Decker

1 - Company anticipatorily breached contract with landowner wherein it agreed to perform earth work, including installation of gravel driveway, on landowner's property; contract contained no provision specifying completion date but, after second weekend of work at site, company removed its equipment and did not return, and company responded to landowner's inquiries about progress of job by promising to get right to work but did not do so. 2 - We conclude therefore that the court properly found that Wholesale, through its conduct, manifested an unequivocal and definite inability or unwillingness to perform within a reasonable time.

Batsakis vs. Demotsis

1 - Defendant got exactly what she contracted for according to her own testimony. The court should have rendered judgment in favor of plaintiff against defendant for the principal sum of $2,000.00 evidenced by the instrument sued on, with interest as therein provided. 2 - Where instrument providing that defendant would return to plaintiff $2000 in American money in payment of loan of Greek money was signed and delivered in Kingdom of Greece at time when parties were residents of Greece, the transaction amounted to a sale by plaintiff of the Greek money in consideration of execution of the instrument by defendant, and defendant's plea of "want of consideration" was unavailing, notwithstanding that Greek money received by defendant was not of value of American money she agreed to return.

1484-Eight, Ltd. & Millis Management Corp. v. Joppich

1 - Developer's failure to pay the nominal consideration of ten dollars, as recited in developer's written option agreement with purchaser of real estate, did not preclude enforcement of the agreement. 2 - A promise to give an option is valid if supported by an independent consideration; for example, if a sum of money be paid for the option, the promisee may, at his election, enforce the contract.

Moscatiello v. Pittsburgh Contractors Equipment Co.

1 - Disclaimer of warranties contained in sales agreement entered into in connection with dealer's sale of paving machine to highway contractor was not sufficiently conspicuous to be effective to bar contractor's breach of warranty claims; disclaimer language was on reverse side of sales agreement in extremely fine print, and language on front side of contract referring to terms and conditions on reverse side was inconspicuous and misleading. 2 - While location of disclaimer of warranties on reverse side of contract alone does not render disclaimer inconspicuous, disclaimer itself must be conspicuous and front of document must contain noticeable reference to terms on reverse side. 2 - PCEC had numerous opportunities throughout the purchase negotiations to notify Moscatiello of the exclusion of warranties and the limitation on potential remedies set forth on the reverse side of the contract. It is clear that PCEC failed to take advantage of those opportunities. Instead, PCEC "utilized a boiler-plate provision in a standard sales agreement to exclude important warranties that naturally arise in the course of any sale." Section 2316 of the U.C.C. protects buyers such as Moscatiello from this type of disclaimer hidden deep within the illegible fine print on the reverse side of a standard sales contract, and that section invalidates such exclusionary language. 3 - Dealer that sold paving machine to highway contractor breached implied warranty of merchantability, where machine did not spread concrete evenly and failed to meet specifications of Department of Transportation, which were known to dealer 4 - • The question presented in the instant sales agreement, therefore, is whether Mr. Moscatiello and his superintendent reasonably should have expected that if the paver failed to perform as promised, they, rather than the seller, would be responsible for the economic losses which resulted 5 - Neither Mr. Moscatiello nor his superintendent understood that buried in the fine print on the reverse side of the contract was a term that shifted to Moscatiello the risk of loss resulting from the purchase of a machine which was unable to perform the operations that it was designed to perform. 6 - , PCEC was a well-established dealer engaged in the sale, service, and support of construction equipment to area contractors. It had negotiated many other contracts for the purchase of this type of equipment and was familiar with the "conditions" on the reverse side of its own form which disclaimed warranties and limited damages. PCEC clearly held superior bargaining position with respect to Moscatiello. Moreover, the limitation of damages provisions were classic examples of physically inconspicuous provisions in the boilerplate language of a standard form. 7 - Integration clause in contract for sale of paving machine to highway contractor could not operate as waiver of contractor's objections to terms and conditions of agreement of sale that were unconscionable or invalid under Uniform Commercial Code.

T. W. Oil, Inc. v. Consolidated Edison Co.

1 - Especially since Con Ed pleaded no prejudice (unless the drop in prices could be so regarded), it is almost impossible, given the flexibility of the Uniform Commercial Code definitions of "seasonable" and "reasonable", to quarrel with the finding that the remaining requirements of the statute also had been met. 2 - Seller, who, acting in good faith and without knowledge of any defect, tenders nonconforming goods to buyer who properly rejects them, may avail itself of provisions of certain statute and offer to cure defect within reasonable period beyond time when contract was to be performed, on seasonable notice, if seller has acted with reasonable expectation that the original goods would be acceptable to buyer; the statute does not limit availability of such right to cure to cases in which seller knowingly makes a nonconforming tender.

In Re: Marriage of Witten

1 - Even though agreement regarding storage of husband's and wife's frozen human embryos in medical facility did not specifically address contingency of parties' divorce, provision of agreement governing "release of embryos," in which parties agreed that the embryos would not be transferred, released, or discarded without "the signed approval" of both husband and wife, provided decision-making protocol applicable when the parties were unmarried as well as when they were married. 2 - Partners who create human embryos as part of an in vitro fertilization program have primary, and equal, decision-making authority with respect to the use or disposition of their embryos. 3 - If one or both donors change their minds regarding a prior agreement concerning use or disposition of human embryos created as part of an in vitro fertilization program, and if the donors cannot reach a mutual decision on disposition, then no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors; if a stalemate results, the status quo would be maintained, such that the embryos would be stored indefinitely unless both parties can agree to destroy the fertilized eggs. 4 - If one or both donors change their minds regarding a prior agreement concerning use or disposition of human embryos created as part of an in vitro fertilization program, and if the donors cannot reach a mutual decision on disposition, the party or parties who oppose destruction shall be responsible for any storage fees.

Donovan v. RRL Corp.

1 - Evidence at trial established that defendant adheres to the following procedures when an incorrect advertisement is discovered. 2 - No evidence presented at trial suggested that defendant knew of the mistake before plaintiff attempted to purchase the automobile, that defendant intended to mislead customers, or that it had adopted a practice of deliberate indifference regarding errors in advertisements. 3 - enforcement of the contract for the sale of the *294 1995 Jaguar XJ6 VandenPlas at the $25,995 mistaken price would be unconscionable. The other requirements for rescission on the ground of unilateral mistake have been established. ***834 Defendant entered into the contract because of its mistake regarding a basic assumption, the price. 4 - The $12,000 loss that would result from enforcement of the contract has a material effect upon the agreed exchange of performances that is adverse to defendant. Furthermore, defendant did not neglect any legal duty within the meaning of Civil Code section 1577 or breach any duty of good faith and fair dealing in the steps leading to the formation of the contract. Plaintiff refused defendant's offer to compensate him for his actual losses in responding to the advertisement. 5 - Contract formed after buyer accepted offer created by newspaper advertisement in which licensed automobile dealership listed a particular used vehicle for sale at a specified price, but which listed vehicle at $12,000 less than intended price due to typographical and proofreading errors at newspaper, was subject to recission based on dealership's unilateral mistake of fact; mistake, which involved a basic assumption upon which contract was made and had a material effect on performance, was made in good faith and did not arise from neglect of a legal duty, and enforcement of contract would be unconscionable in light of magnitude of mistake.

Masterson v. Sine

1 - Exclusion of extrinsic evidence, in action by trustee in bankruptcy of one grantor and other grantor against grantees for judgment declaring right to enforce grantors' option to repurchase, that option was personal to grantors and, therefore, nonassignable was error. 2 - Courts will effectuate a presumed intent that contractual duties are to be personal, even when there is no explicit written or oral agreement, if circumstances indicate that performance by a substituted person would be different from that contracted for.

Walker & Co. v. Harrison

1 - Failure of lessor, who had been obligated by agreement to repair and maintain "in first class advertising condition" custom neon sign which it had designed and leased to defendants, to remove tomato, rust and cobwebs from sign was, under circumstances, not material breach and did not justify defendants' repudiation of lease and subsequent refusal to pay rent. 2 - Where lessor's immaterial breach of obligation to maintain neon advertising sign did not justify lessees' repudiation of lease, lessees' refusal to pay rent was itself material breach, warranting lessor in recovering balance of rent due for term under acceleration clause. 3 - Upon lessees' breach of advertising neon sign lease agreement calling for acceleration in case of default, and providing that at end of term title to sign would pass to lessees, lessor would be entitled to recover cash price of sign, for such services and maintenance as were extended and accepted, less amount that service would have cost lessor during unexpired portion of agreement, and interest upon amount in default.

London Bucket Co. v. Stewart

1 - Generally, building construction contract will not be specifically enforced, as recovery of damages for breach thereof is ordinarily an adequate remedy and court cannot superintend performance of contract. 2 - Specific performance of contract to furnish and install properly a motel heating system cannot be decreed, as recovery of damages for breach of contract is adequate remedy, though there may be difficulty in proving damages, and court cannot superintend performance of contract.

Grouse v. Group Health Plan, Inc.

1 - Group Health knew that to accept its offer Grouse would have to resign his employment at Richter Drug. Grouse promptly gave notice to Richter Drug and informed Group Health that he had done so when specifically asked by Elliott. Under these circumstances it would be unjust not to hold Group Health to its promise. 2 - under the facts of this case the appellant had a right to assume he would be given a good faith opportunity to perform his duties to the satisfaction of respondent once he was on the job. He was not only denied that opportunity but resigned the position he already held in reliance on the firm offer which respondent tendered him. Since, as respondent points out, the prospective employment might have been terminated at any time, the measure of damages is not so much what he would have earned from respondent as what he lost in quitting the job he held and in declining at least one other offer of employment elsewhere. 3 - Pharmacist, who had right to assume he would be given good-faith opportunity once he was on the job to perform his duties to satisfaction of health clinic which had offered him employment but who was denied that opportunity when clinic terminated offer of employment after pharmacist had resigned position he already held in reliance on offer, was entitled to recover damages for what he lost in quitting his job and in declining at least one other offer of employment elsewhere.

Hochster v. DeLaTour

1 - If the plaintiff has no remedy for breach of the contract unless he treats the contract as in force, and acts upon it down to the 1st June, 1852, it follows, that till then he must enter into no employment which will interfere with his promise "to start on such travels with the"plaintiff on that day," and that he must then be properly equipped in all respects as a courier for a three months' tour on the continent of Europe. 2 - after the renunciation of the agreement by the defendant, the plaintiff should be at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it. 3 - Thus, instead of remaining idle, and laying out money in preparations which must be useless, he is at liberty to seek service under another employer, which would go in mitigation of the damages to which he would otherwise be entitled for a breach of the contract.

Aiello Construction, Inc. v. Nationwide Tractor Trailer Training and Placement Corp.

1 - In action for breach of contract based on nonpayment of installments brought by contractor against owner, evidence was sufficient to find that trucker was solely responsible for the breach and that such breach for failure to pay installments excused further performance on part of contractor. 2 - In action for breach of contract based on nonpayment of installments brought by contractor against owner, trial court's finding of damages, which was costs incurred by contractor plus profit which contractor would have made if contract were completely performed, minus installments paid by owner, was appropriately relevant to the factual posture and the remedy sought by the contractor.

Feinberg vs. Pfeiffer Co.

1 - In action on alleged contract by defendant to pay plaintiff a specified monthly amount for life upon her retirement from defendant's employ, evidence justified finding that plaintiff would not have quit defendant's employ had she not known and relied upon promise of defendant to pay monthly sum for life, and finding that, after date of her voluntary retirement, she had relied upon continued receipt of pension installments. 2 - In action on alleged contract by defendant to pay plaintiff a specified monthly amount for life upon her retirement from defendant's employ, evidence would not sustain plaintiff's contention that defendant's promise to pay pension had been predicated upon plaintiff's continuing in defendant's employ and that she had continued in defendant's employ in return for its promise to pay her pension. (lack of mutuality of obligation) 3 - Plaintiff's retirement from her lucrative position in defendant's employ in reliance upon defendant's promise to pay her a pension for life constituted sufficient consideration to support agreement to pay pension; and plaintiff could recover thereunder even though she had not discovered cancer which made her unemployable until after defendant had discontinued pension payments.

Louise Caroline Nursing Home, Inc. v. Dix Construction Co.

1 - In assessing damages for failure to complete a construction contract, the measure of damages, at least in the absence of other elements of damage such as delay in construction, can be only in the amount of the reasonable cost of completing the contract and repairing the defendant's defective performance, less such part of the contract price as has not been paid. 2 - In contract action wherein nursing home sought damages from contractor for breach of a contract to build a nursing home, and from insurance company for default on a surety bond guaranteeing performance by the contractor, the auditor was correct in applying the "cost of completion" measure of damages which excluded any separate recovery for lost "benefits of its bargain."

Gardner Zemke Co. v. Dunham Bush, Inc.

1 - In determining whether customer's acknowledgment sent by manufacturer in response to general contractor's purchase order operated as counteroffer, thereby providing controlling warranty terms under contract formed by parties, inquiry focused on whether offeree clearly and unequivocally communicated to offeror that its willingness to enter into bargain was conditioned on offeror's assent to additional or different terms; 2 - exchange of forms containing identical dickered terms, such as identity, price, and quantity of goods, and conflicting undickered boilerplate provisions, such as warranty terms and provision making bargain subject to terms and conditions of offeree's document, however worded, will not propel transaction into "expressly conditional" language of provision of Uniform Commercial Code and confer status of counteroffer on responsive document. 3 - It is not enough to make acceptance expressly conditional on additional or different terms and instead expressly conditional nature of the acceptance must be predicated on offeror's assent to those terms, and whether acceptance was made expressly conditional on assent to different or additional terms is dependent on commercial context of transaction.

Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co.

1 - In the present case the court erroneously refused to consider extrinsic evidence offered to show that the indemnity clause in the contract was not intended to cover injuries to plaintiff's property. 2 - Although that evidence was not necessary to show that the indemnity clause was reasonably susceptible of the meaning contended for by defendant, it was nevertheless relevant and admissible on that issue. 3 - Moreover, since that clause was reasonably susceptible of that meaning, the offered evidence was also admissible to prove that the clause had that meaning and did not cover injuries to plaintiff's property. 4 - Refusal to consider extrinsic evidence offered to show that indemnity clause of contract for repair of plaintiff utility's steam turbine was not intended to cover injuries to property of utility constituted reversible error, where clause was reasonably susceptible to such meaning.

Snyder v. Lovercheck

1 - In the present case, Snyder presented no evidence to the district court consistent with fraud. Ron expressed his belief about the extent of the rye problem, and immediately sought a more informed opinion. No accusation has been made that Headrick's appraisal of the rye problem was based on anything other than his observations or was intentionally misleading. No one prevented Snyder from inspecting the land, and, in fact, he visited the land at least ten times before he agreed to the purchase. The facts of this case do not even approach the elevated burden of proof necessary to establish a claim of fraud. 2 - Wheat farm purchasers could not bring fraudulent misrepresentation claim against vendors and vendors' real estate broker, where broker stated his belief regarding limited extent of rye infection based on his observations and he immediately sought a more informed opinion, and where purchasers inspected the land at least ten times before purchasing it. 3 - he merger clause and disclaimer clause in contract for purchase of wheat farm completely encompassed all of the rights, duties, and liabilities of the parties with respect to prior representations, even if purchasers had not read or understood the clauses, and thus, purchasers could not bring tort claims for negligent misrepresentation against vendors and vendors' real estate broker regarding extent of rye infection. 4 - Purchasers' real estate broker did not have duty to explain to wheat farm purchasers the provision in vendors' statement of condition that "[vendors made] no other representations of any kind relating to said property," where purchaser was a sophisticated party who had traded various parcels of real estate in the past and was savvy enough to have required the vendors to furnish the statement of condition.

Osteen v. Johnson

1 - It is clear from the record and the findings of the trial court that the first record had met with some success. It is also clear that copies of the second record were neither pressed nor mailed out. In our opinion the failure of the defendant to press and mail out copies of the second record after the first had achieved some success constituted a substantial breach of the contract and, therefore, justifies the remedy of restitution. 2 - Both parties agree that the essence of their contract was to publicize Linda as a singer of western songs and to make her name and talent known to the public. Defendant admitted and asserted that the primary method of acchieving this end was to have records pressed and mailed to disc jockeys. 3 - It shall, therefore, be the ultimate order of this court that prior to restoring to the plaintiffs the $2,500 paid by them to the defendant further proceedings be held during which the trial court shall determine the reasonable value of the services which the defendant rendered on plaintiffs' behalf. 4 - Where evidence showed that first record had met with some success, and it was clear that copies of second record were neither pressed nor mailed out, failure of promoter to press and mail out copies of second record after first had achieved some success justified restitution for substantial breach of contract to promote singer and composer by preparing two records, mailing copies of first record to disc jockeys throughout the country and, if first record met with any success, mailing out copies of second record.

Anglia Television Ltd. V. Reed

1 - It is plain that, when Mr. Reed entered into this contract, he must have known perfectly well that much expenditure had already been incurred on director's fees and the like. 2 - He must have contemplated - or, at any rate, it is reasonably to be imputed to him - that if he broke his contract, all that expenditure would be wasted, whether or not it was incurred before or after the contract. He must pay damages for all the expenditure so wasted and thrown away. 3 - It is true that, if the defendant had never entered into the contract, he would not be liable, and the expenditure would have been incurred by the plaintiff without redress; but, the defendant having made his contract and broken it, it does not lie in his mouth to say he is not liable, when it was because of his breach that the expenditure has been wasted.

Mills vs Wyman

1 - Levi Wyman, at the time when the services were rendered, was about 25 years of age, and had long ceased to be a member of his father's family. He was on his return from a voyage at sea, and being suddenly taken sick at Hartford, and being poor and in distress, was relieved by the plaintiff in the manner and to the extent above stated. On the 24th of February, after all the expenses had been incurred, the defendant wrote a letter to the plaintiff, promising to pay him such expenses. There was no consideration for this promise 2 - In this case, however, the services provided to D's son were not bestowed at his request. The son had left his father's family and was not under D's care when he died. The court held that the general position that moral obligation is a sufficient consideration for an express promise is to be limited in its application to cases where at some time or other a good or valuable consideration has existed.

Jacob & Youngs v. Kent

1 - Measure of allowance to owner of country residence for contractor's failure to comply with specifications for plumbing work providing all wrought iron pipe must be well galvanized, lap welded pipe of the grade known as standard pipe of "Reading" manufacture, other pipe than Reading having been in fact used, held not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing. 2 - Some promises are so plainly independent that they can never by fair construction be conditions of one another. Others are so plainly dependent that they must always be conditions. Others, though dependent and thus conditions, when there is departure in point of substance, will be viewed as independent and collateral when the departure is insignificant. 3 - Considerations partly of justice and partly of presumable intention guide the courts in determining whether this or that promise shall be placed in one class or in another. Where the line is to be drawn between the important and the trivial cannot be settled by a formula. 4 - An omission to perform a contract both trivial and innocent will sometimes be atoned for by an allowance to the owner of the resulting damage and will not always be the breach of a condition to be followed by a forfeiture against the contractor.

Hawkins V. McGee

1 - Measure of damages for surgeon's breach of warranty to produce perfect hand by skin-grafting operation is difference between value of perfect hand and its value after operation. 2 - Pain and suffering endured from operation is not element to be considered in determining damages for breach of alleged warranty of success of operation. 3 - The pain necessarily incident to a serious surgical operation was a part of the contribution which the plaintiff was willing to make to his joint undertaking with the defendant to produce a good hand. It was a legal detriment suffered by him which constituted a part of the consideration given by him for the contract. It represented a part of the price which he was willing to pay for a good hand, but it furnished no test of the value of a good hand or the difference between the value of the hand which the defendant promised and the one which resulted from the operation. 4 - Any such ill effect of the operation would be included under the true rule of damages set forth above, but damages might properly be assessed for the defendant's failure to improve the condition of the hand, even if there were no evidence that its condition was made worse as a result of the operation.

Wisconsin Knife Works v. National Metal Crafters

1 - Missing from the jury instruction on "modification" in this case is any reference to reliance, that is, to the incurring of costs by National Metal Crafters in reasonable reliance on assurances by Wisconsin Knife Works that late delivery would be acceptable. 2 - Wisconsin Knife Works' objections to the introduction of parol evidence have no merit once the issue is recast as one of waiver. The purpose of the parol evidence rule is to defeat efforts to vary by oral evidence the terms of a written instrument that the parties intended to be the fully integrated expression of their contract; it has no application when the issue is whether one of the parties later waived strict compliance with those terms. 3 - On the basis of the record before us we cannot say that the error in allowing the jury to find that the contract had been modified was harmless; but we do not want to exclude the possibility that it might be found to be so, on motion for summary judgment or otherwise, without the need for a new trial. Obviously National Metal Crafters has a strong case both that it relied on the waiver of the delivery deadlines and that there was no causal relationship between its late deliveries and the cancellation of the contract. 4 - Clause in purchase orders permitting modifications of contract for sale of metal only in writing was valid, and jury, in buyer's breach of contract action, should not have been allowed to consider whether contract had been modified in some other way; seller of metal had signed acknowledgements of first two purchase orders submitted by buyer, and its acceptance by performance of subsequent orders signified assent to same conditions originally agreed to. 5 - Buyer's attempted modification of contract to purchase metal, which contained provision precluding modifications other than in writing, by allegedly assuring seller that late delivery of metal would be acceptable, operated as waiver of written modification requirement only if seller had kept producing metal for contract in reliance upon buyer's oral assurances; absent showing of reliance, delivery dates contemplated by written contract were not modified by oral assent to late delivery.

Foakes v. Beer

1 - Not being under seal, the agreement cannot be legally enforced aginst the respondent, unless she received consideration for it from the appellant, or unless, 2 - though w/o consideration it operates by way of accord and satisfaction, so as to extinguish the claim for interest. Payment of a lesser sum on the day cannot be a satisfaction of a greater sum.

Pittsburgh-Des Moines Steel Co. v. Brookhaven Manor Water Co.

1 - PDM having purported to agree not to ask for progress payments during the course of construction, more than half of which would have been due before the first act took place by PDM on the construction site, it now was substituting another requirement clearly beyond any requirement contemplated in the contract which would not have put the purchase price in hand but would nevertheless have it where it could be available for the picking at the appropriate time. 2 - We find no basis for an inference that at this time Brookhaven was not ready, willing and able to perform its obligations under the contract nor that it would not be able to pay when it owed. The fact that there had been negotiations for a loan of money that would not be needed for some months, which negotiations had not come to fruition, does not support such an inference. 3 - The fundamental problem is that these letters, if they be deemed to be in the nature of a demand, demanded more than that to which PDM was entitled and the demand was not founded upon what in our opinion was an actuating basis for the statute's applicability. 4 - We find that PDM's actions in demanding either the escrowing of the purchase price or a personal guarantee lacked the necessary predicate of reasonable grounds for insecurity having arisen. The contract negates the existence of any basis for insecurity at the time of the contract when PDM was willing to wait 30 days beyond completion for payment. 5 - The fact that Brookhaven had not completed its loan negotiations does not constitute reasonable grounds for insecurity when the money in question was not to be needed for some months.

Wood v. Boynton

1 - Plaintiff, having found a rough diamond worth $700, sold the same to defendant jeweler for $1, neither of whom knew what it was, or had any idea of its value. Held, that plaintiff could not rescind the sale on subsequently discovering its true value. 2 - Whether inadequacy of price is to be received as evidence of fraud, even in a suit in equity to avoid a sale, depends upon the facts known to the parties at the time the sale is made. When this sale was made the value of the thing sold was open to the investigation of both parties, neither knowing its intrinsic value, and, so far as the evidence in this case shows, both supposed that the price paid was adequate. 3 - We can find nothing in the evidence from which it could be justly inferred that Mr. Boynton, at the time he offered the plaintiff one dollar for the stone, had any knowledge of the real value of the stone, or that he entertained even a belief that the stone was a diamond. It cannot, therefore, be said that there was a suppression of knowledge on the part of the defendant as to the value of the stone which a court of equity might seize upon to avoid the sale.

Hancock v. American Telephone & Telegraph, Inc.

1 - Plaintiffs presented no evidence that customers cannot review and agree to the U-verse terms of service in this period. And, as noted above, once U-verse customers affirmatively manifest assent to the terms of service by clicking the "I Agree" and "I Acknowledge" buttons, it is no defense that they did not take the time to read the terms. 2 - Clickwrap agreements for television and telephone service were valid and enforceable under Florida and Oklahoma law, where technicians presented customers with printed copy of terms and gave customers opportunity to review those terms, customers had to agree to terms by clicking on "I Acknowledge" button on web application, which was presented on technician's laptop, before technicians proceeded with installation, and customer had to acknowledge through checkbox that he had "read, understand[s], and agree[s] to the content of the documents checked above." 3 - Clickwrap agreements for Internet service were valid and enforceable under Florida and Oklahoma law, where customers could not access Internet service without going through registration process on customer's computer, process gave customer opportunity to review Internet terms in scrolling text box, and customer had to click an "I Agree" button to manifest assent to Internet terms and to continue with registration process and activation of Internet service. 4 - E-mail sufficiently notified customers under Florida and Oklahoma law that arbitration provision had been added to terms for Internet service, where, after three short paragraphs explaining that Internet terms were changing, e-mail's first bullet point stated: "Arbitration Agreement. We have added language that requires customer disputes with [provider] regarding [provider's] Internet Services to be submitted to binding arbitration or small claims court," and e-mail concluded with link to new Internet terms and stated that "[b]y continuing to use the Service, you signify your continued agreement to the terms and conditions set forth in the Terms of Service document." 5 - Standard practice gave customers sufficient notice under Florida and Oklahoma law of terms of service for television, telephone, and Internet, as well as adequate opportunity to manifest assent to terms, where customers could cancel installation within three days and customers could cancel all services within 30 days of activation and obtain partial refund.

Mitchill v. Lath

1 - Proof of oral agreement to vary written contract is inadmissible, unless agreement is collateral in form and does not contradict express or implied provisions of the written contract, and it must not be so closely related to written agreement that parties would ordinarily be expected to embody it in the writing; in other words, oral agreement must not be clearly connected with the principal transaction as to be part and parcel of it. 2 -Though contract for sale of farm was entered into with husband as purchaser, and no assignment from him appeared, wife to whom deed was given was treated as principal in determining whether proof of vendor's alleged collateral agreement with her to remove icehouse was admissible under parol evidence rule. 3 - Proof of oral agreement of vendor of farm to remove icehouse, in consideration for purchase of premises, held inadmissible under parol evidence rule, as varying terms of written purchase contract in which vendors agreed to give deed to farm, selling personal property, to assume risk of loss prior to delivery of deed, and to pay broker's commissions, since oral agreement was so closely related to the subject-matter of the written agreement as to prevent proof of it as collateral contract.

Hoffman v. Red Owl Stores, Inc.

1 - Purchase of small grocery store was temporary experiment. Thus Hoffman made this purchase more or less as a temporary experiment. Justice does not require that the damages awarded him, because of selling these assets at the behest of defendants, should exceed any actual loss sustained measured by the difference between the sales price and the fair market value. 2 - Court concluded that injustice would result if plaintiffs were not granted some relief because of failure of corporation to keep promises concerning franchise agency store to be operated by plaintiffs who were induced to act to their detriment. 3 - Justice did not require that damages awarded plaintiffs because of loss on sale of assets at behest of defendants' promissory representations should exceed any actual loss sustained measured by the difference between sale price and the fair market value

Hamer v. Sidway

1 - Refraining from the use of liquor and tobacco for a certain time at the request of another is a sufficient consideration for a promise by the latter to pay a sum of money. 2 - D contended that the contract was invalid because it lacked consideration and that there is no consideration unless the promisor is benefited. The court stated that consideration may consist in either a some right, interest, profit, or benefit to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. 3 - It is immaterial whether the consideration does in fact benefit the promisee or a third party or is of substantial value to anyone. Refraining from something that one is entitled to do is a sufficient detriment to create an enforceable contract.

Sanders v. Fedex Ground Package System, Inc.

1 - Sanders signed the contract based on these discussions with the terminal manager. Thus, Sanders' testimony about the circumstances surrounding the execution of the contract with FedEx supports his understanding that one of the benefits of the contractual term "independent contractor" was the ability to buy other routes. 2 - Sanders' understanding that FedEx only retained veto power over a sale if the contractor was not in good standing was supported by the testimony of one of his fellow independent contractors 3 - a jury could reasonably find from the evidence that FedEx prohibited Sanders from purchasing the Hobbs-Lovington route, even though Sanders was qualified and in good standing, and that FedEx lacked any good-faith, legitimate reason to interfere. 4 - Accordingly, the evidence supports the jury's conclusion that FedEx did not act in the spirit of good faith and fair dealing with its independent contractor, and that FedEx breached its contract with Sanders and "injure[d] the rights of [Sanders] to receive the benefit of their agreement." 5 - Sanders used extrinsic evidence not to negate or undercut an express term of the contract. 6 - extrinsic evidence was properly used to establish the parties' intent as well as their expectations regarding the benefits that would flow from the agreement, and more specifically from the term "independent contractor." 7 - Parol evidence rule did not prevent plaintiff, an independent contractor for defendant package delivery business, from using extrinsic evidence to show that the term "independent contractor" included the right for plaintiff to buy pick-up and delivery routes from other contractors as they became available and without unreasonable interference from defendant, in plaintiff's action alleging defendant breached the implied covenant of good faith and fair dealing by refusing to allow plaintiff to purchase a route from another contractor; plaintiff was not using extrinsic evidence to negate or undercut an express term of the contract, but instead to aid the jury in understanding the meaning that the parties ascribed to the term "independent contractor."

Drennan v. Star Paving Co.

1 - Submission of paving bid to general contractor by subcontractor constituted a promise to perform on such conditions as were stated expressly or by implication in the bid or were annexed thereto by operation of law. 2 - Where paving subcontractor submitted bid for paving work to general contractor, and bid was silent with respect to right of paving subcontractor to revoke the bid, and general contractor used the bid in making its own successful bid on the main contract, general contractor's reliance on paving subcontractor's bid made the bid irrevocable. 3 - Where paving subcontractor submitted bid for paving work to general contractor, and bid was silent with respect to right of paving subcontractor to revoke the bid, and general contractor used the bid in making its own successful bid on the main contract, fact that bid of paving subcontractor was result of mistake would not relieve paving subcontractor from its obligation.

Wagenseller v. Scottsdale Memorial Hospital

1 - Termination of at-will employee for refusal to participate in public exposure of one's buttocks may provide basis of claim for wrongful discharge, even if there is no technical violation of indecent exposure statute 2 - Employee's reliance on an announced policy is only one of several factors that are relevant in determining whether particular policy was intended by parties to modify an at-will agreement; employer's course of conduct and oral representations regarding the policy, as well as the words of the policy itself, also provide evidence of such modification.

Morin Building Products Co. v. Baystone Construction, Inc.

1 - The building for which the aluminum siding was intended was a factory-not usually intended to be a thing of beauty. That aesthetic considerations were decidedly secondary to considerations of function and cost is suggested by the fact that the contract specified mill-finish aluminum, which is unpainted. 2 - Although contract provided "that all work shall be done subject to the final approval of the Architect or Owner's authorized agent, and his decision in matters relating to artistic effect shall be final," and that "should any dispute arise as to the quality or fitness of the materials or workmanship, the decision as to acceptability shall rest strictly with the Owner," the artistic effect and quality fitness clauses in the form contract used were not intended to cover the aesthetics of a mill-finish aluminum factory wall; accordingly, the jury was properly asked to decide whether a reasonable man would have found that plaintiff subcontractor used aluminum sufficiently uniform to satisfy the contract's matching requirement. 3 - Whether Morin's siding achieved a reasonable *416 uniformity amounting to satisfactory commercial quality was susceptible of objective judgment; in the language of the Restatement, a reasonableness standard was "practicable." 4 - we are left with more than a suspicion that the artistic-effect and quality-fitness clauses in the form contract used here were not intended to cover the aesthetics of a mill-finish aluminum factory wall 5 - Because it is difficult-maybe impossible-to achieve a uniform finish with mill-finish aluminum, Morin would have been running a considerable risk of rejection if it had agreed to such a condition, and it therefore could have been expected to demand a compensating increase in the contract price. \ 6 - This would have required General Motors to pay a premium to obtain a freedom of action that it could not have thought terribly important, since its objective was not aesthetic. If a uniform finish was important to it, it could have gotten such a finish by specifying painted siding. 7 - if it appeared from the language or circumstances of the contract that the parties really intended General Motors to have the right to reject Morin's work for failure to satisfy the private aesthetic taste of General Motors' representative, the rejection would have been proper even if unreasonable. 8 - But the contract is ambiguous because of the qualifications with which the terms "artistic effect" and "decision as to acceptability" are hedged about, and the circumstances suggest that the parties probably did not intend to subject Morin's rights to aesthetic whim.

Egerer v. CSR West, LLC

1 - The court found the 1998 quotes for replacement material and hauling "were reasonable and customary", and noted that CSR "did not offer evidence that suitable replacement material was available at a lower price at the time of breach."3 There was testimony that shoulder excavation material, though cheap when available, is rarely available. 2 - Evidence supported basing hypothetical damages for seller's failure to deliver shoulder excavation fill on quotes of $8.25 per cubic yard for pit run; there was evidence that quotes were reasonable and customary, there was no evidence that suitable replacement material was available for less at time of breach, there was testimony that it would have been difficult for buyer to obtain cheaper shoulder excavation fill at time of breach, and there was evidence that buyer's eventual purchase of replacement fill at cheaper price was possible only because of unexpected landslide in a local gravel pit. 3 - When determining damages for hypothetical cover in a breach of contract action, a trial court may use a market price for goods different in quality from those for which the buyer contracted.

United States Naval Institute V. Charter Communications, Inc.

1 - The damages awarded by the district court on remand had two components: (1) Naval's lost profits resulting from Berkley's early publication of the paperback edition of the Book, and (2) Berkley's profits attributable to its assumed infringement. For the reasons discussed above, the latter component of the award cannot stand. The former component, however, may properly measure damages under a breach-of-contract theory. 2 - While on occasion defendant's profits are used as measure of damages for breach of contract, that generally occurs when those profits tend to define plaintiff's loss, for award of defendant's profits where they greatly exceed plaintiff's loss and there has been no tortious conduct on part of defendant would tend to be punitive, and punitive awards are not part of law of contract damages.

Walgreen Co. v. Sara Creek Property Co.

1 - The determination of Walgreen's damages would have been costly in forensic resources and inescapably inaccurate. It is difficult to forecast the profitability of a retail store over a decade, let alone to assess the impact of a particular competitor on that profitability over that period 2 - here damages would be a costly and inaccurate remedy; and on the other side of the balance some of the costs of an injunction are absent and the cost that is present seems low. The injunction here, like one enforcing a covenant not to compete (standardly enforced by injunction, is a *278 simple negative injunction—SaraCreek is not to lease space in the Southgate Mall to Phar-Mor during the term of Walgreen's lease—and the costs of judicial supervision and enforcement should be negligible. 3 - The injunction may harm Phar-Mor but that harm will be reflected in SaraCreek's offer to Walgreen to dissolve the injunction. (Anyway Phar-Mor is a party.) The injunction may also, it is true, harm potential customers of Phar-Mor—people who would prefer to shop at a deep-discount store than an ordinary discount store—but their preferences, too, are registered indirectly. The more business Phar-Mor would have, the more rent it will be willing to pay SaraCreek, and therefore the more SaraCreek will be willing to pay Walgreen to dissolve the injunction. 4 - . SaraCreek does not argue that it will have to close the mall if enjoined from leasing to Phar-Mor. Phar-Mor is not the only potential anchor tenant. 5 - Tenant which operated pharmacy in shopping center was entitled to permanent injunction to enforce exclusivity clause in lease whereby landlord promised not to lease space in mall to another pharmacy; trial judge did not exceed bounds of reasonable judgment in concluding that costs of damages remedy would exceed costs of injunction.

Austin Instrument, Inc. V. Loral Corp. Sup. Ct.

1 - The existence of economic duress or business compulsion is demonstrated by proof that immediate possession of needful goods is threatened or by proof that one party to a contract has threatened to breach the agreement by withholding goods unless the other party agrees to some further demand. 2 - A mere threat by one party to breach contract by not delivering the required items, though wrongful, does not in itself constitute economic duress; it must also appear that the threatened party could not obtain the goods from another source of supply and that the ordinary remedy of action for breach of contract would not be adequate. 3 - Where government contractor faced genuine possibility of substantial liquidated damages and threats of default as result of subcontractor's threat to stop deliveries unless prices were increased, and other manufacturers which comprised contractor's entire list of "approved vendors" were unable to commence delivery soon enough, subcontractor's threat constituted "economic duress," and fact that contractor extended subcontractor's time to resume deliveries and did not request extension from government did not negate contractor's claim of dire need for the parts, nor did contractor's waiting until after termination date of contract to claim refund because of fear of another stoppage preclude contractor from obtaining refund.

Transatlantic Financing Corp v. United States

1 - The first requirement was met here. Since the usual and customary route from Texas to Iran at the time of contract5 was through Suez, closure of the Canal made impossible the expected method of performance. But this unexpected development raises rather than resolves the impossibility issue, which turns additionally on whether the risk of the contingency's occurrence had been allocated and, if not, whether performance by alternative routes was rendered impracticable. 2 - .. The contract in this case does not expressly condition performance upon availability of the Suez route. Nor does it specify 'via Suez' or, on the other hand, 'via Suez or Cape of Good Hope.'7 Nor are there provisions in the contract from which we may properly imply that the continued availability of Suez was a condition of performance.8 Nor is there anything in custom or trade usage, or in the surrounding circumstances generally, which would support our constructing a condition of performance. So the implied expectation that the route would be via Suez is hardly adequate proof of an allocation to the promisee of the risk of closure. 3 - The surrounding circumstances do indicate, however, a willingness by Transatlantic to assume abnormal risks of the Canal's closure, and this fact should legitimately cause us to judge the impracticability of performance by an alternative route in stricter terms than we would were the contingency unforeseen 4 - Transatlantic was no less able than the United States to purchase insurance to cover the contingency's occurrence. If anything, it is more reasonable to expect owner-operators of vessels to insure against the hazards of war. They are in the best position to calculate the cost of performance by alternative routes (and therefore to estimate the amount of insurance required), and are undoubtedly sensitive to international troubles which uniquely affect the demand for and cost of their services. 5 - If the contract is a nullity, Transatlantic's theory of relief should have been quantum meruit for the entire trip, rather than only for the extra expense. Transatlantic attempts to take its profit on the contract, and then force the Government to absorb the cost of the additional voyage 6 - Performance of contract to carry, for the United States, a full cargo of wheat from a United States gulf port to a safe port in Iran was not rendered commercially impracticable by closing of Suez Canal where goods shipped were not subject to harm from longer, less temperate southern route, vessel and crew were fit to proceed around Cape, and operator of vessel was no less able than government to purchase insurance to cover contingency's occurrence; but even if the event had made performance commercially impracticable, ship operator's remedy would have been recovery in quantum meruit for entire performance and it could not collect its contract price and then seek quantum meruit relief for additional expense of trip around Cape.

Travelers Ins. Co. v. Bailey

1 - To insist on enforcement of the contract once knowledge of the error is acquired by the insured is held to be unconscionable, and classified as then a unilateral mistake known to the other party, which supports reformation. If the mistake exists in the writing unknown to both parties, it is classified as 'mutual' and reformation is allowed. 2 - Where there has been established beyond reasonable doubt a specific contractual agreement and a subsequent erroneous rendition of terms of agreement in material particular, party penalized by error is entitled to reformation if there has been no prejudicial change of position by other party while ignorant of the mistake, and if the change can equitably be taken into account and adjustment made therefor, reformation may still be possible.

Vertex, Inc. v. City of Waterbury

1 - To prevail on its estoppel claim against city, contractor had to prove that city did or said something which was intended or calculated to induce contractor to believe in existence of certain facts and to act on that belief, that contractor, influenced thereby, changed its position or did some act to its injury which it otherwise would not have done, that contractor exercised due diligence to ascertain the truth, and that contractor not only lacked knowledge of true state of things but had no convenient means of acquiring that knowledge. 2 - To prevail on claim of unjust enrichment against city, contractor had to prove that : (1) city was benefited; (2) city unjustly did not pay contractor for the benefits; and (3) failure of payment was to contractor's detriment. 3 - In order for the plaintiff to recover on an implied contract it must prove that it rendered the services on the expectation that the [defendant] would pay for them, and it must also prove to you by a fair preponderance of the evidence one of these situations: first, that the [defendant] intended to pay for them; or, second, that the [defendant] accepted them knowing that the plaintiff expected to be paid for them, or under circumstances that a reasonable person in the situation would have known of that expectation; or third, that the words or conduct of the [defendant] were such that a reasonable person in the situation of the plaintiff would have been led to believe that the [defendant] expected to pay for the services."

Foxco Industries, Ltd. V. Fabric World, Inc

1 - Under Alabama sales law, however, that Fabric World did not know of the industry's usage and custom or of the standards in question is of no moment; the parties to a contract such as the one in issue are Presumed to have intended the incorporation of trade usage in striking their bargain. Alabama law explicitly provides that trade usages may help explain or supplement contract terms.8 As stated in the comment to that provision, 2 - Standards of textile association which was industry group with over 1,500 members could qualify as trade usages, and, under Alabama law, parties to contract for sale of textiles by manufacturer were presumed to have intended incorporation of trade usage in striking their bargain, and thus such standards were admissible, in action for buyer's breach, notwithstanding buyer's unawareness of such standards.

Channel Home Centers v. Grossman

1 - Under Pennsylvania law, property owner's promise to prospective commercial tenant, pursuant to detailed letter of intent, to negotiate in good faith with prospective tenant and to withdraw lease premises from market place during negotiation, could bind owner for reasonable period of time where prospective tenant had expended significant sums of money in connection with lease negotiations and preparation and where there was evidence that letter of intent was of significant value to property owner. 2- The parties intended this promise to be binding. After the letter of intent was executed, both Channel and the Grossmans initiated procedures directed toward satisfaction of lease contingencies 3 - Grossman's promise to "withdraw the Store from the rental market and only negotiate the above described leasing transaction to completion," viewed in the context of the detailed letter of intent (which covers most significant lease terms), is sufficiently definite to be specifically enforced, provided that Channel submitted sufficient legal consideration in return.

Ragosta v. Wilder

1 - Vendor's promise to keep offer to sell open was not enforceable because it was not supported by consideration. 2 - That purchasers incurred costs to obtain financing did not constitute consideration for vendor's promise to keep offer to sell open because purchasers began to seek financing even before vendor made definite offer to sell property and, thus, whatever detriment purchasers suffered was not in exchange for vendor's promise to keep offer to sell open. 3 - Vendor who told purchasers that he would sell them property if they showed up at bank with purchase price on certain date, provided that he did not first sell property to someone else, was not equitably estopped from withdrawing his offer after purchasers obtained financing, inasmuch as there were no facts known to vendor but unknown to purchasers; purchasers could not have acted on understanding that vendor would definitely convey property to them, and purchasers understood, at time they obtained financing, that they were assuming risk that they would be unable to purchase property.

Neri v. Retail Marine Corp.

1 - We find no basis for the court's conclusion with respect to a deficiency of proof for incidental damages inasmuch as the proper items of the $674 expenses (being for storage, upkeep, finance charges and insurance for the period between the date performance was due and the time of the resale) were proven without objection and were in no way controverted, impeached or otherwise challenged, at the trial or on appeal. 2 - Retail dealer was entitled to recover loss of profits and incidental damages upon buyer's repudiation of a contract to purchase a boat, a contract governed by Uniform Commercial Code, even though the boat was later sold for same price that buyers had contracted to pay. 3 - ttorney's fees incurred in a buyer's action to recover a deposit are not in nature of "protective expenses" contemplated by the Uniform Commercial Code.

Taylor v. Caldwell

1 - We think, therefore, that the Music Hall having ceased to exist, without fault of either party, both parties are excused, the plaintiffs from taking the gardens and paying the money, the defendants from performing their promise to give the use of the Hall and Gardens and other things 2 Here, the Surrey Gardens and Music Hall was destroyed by fire. Since the fire was not the fault of either party and the destruction of the hall rendered it impossible for the Plaintiffs to utilize the venue as intended, the parties were excused from performing their respective duties.

Williams V. Walker-thomas Furniture Co.

1 - When party of little bargaining power, and hence little real choice, signs commercially unreasonable contract with little or no knowledge of its terms, it is not likely that his consent or even objective manifestation of his consent was ever given to all the terms and, in such case, usual rule that terms of agreement are not to be questioned should be abandoned and court should consider whether terms of contract are so unfair that enforcement should be withheld. 2 - the court wrote that it was unlikely, given the lack of bargaining power and real choice, as well as William's lack of sophistication, that he was able to truly give meaningful consent to all the terms in the contract. The court said in such a situation one should examine whether the contract terms are so unfair as to decline to uphold enforcement of the contract.

Clark V. West

1 - Where a particular stipulation in a contract is not the consideration therefor, but simply one of its conditions, as where one stipulates not to use intoxicating liquors during the performance of a contract to write certain books, such condition may be waived, and when the waiver is acted upon it prevents a forfeiture for nonperformance. 2 - Where plaintiff's contract to write certain law books for defendant stipulated that defendant was to pay plaintiff $2 per page on each book prepared by plaintiff and accepted by defendant, and that, if plaintiff abstained from the use of intoxicating liquor and otherwise fulfilled his agreement, he should be paid an additional $4 per page, no waiver of the stipulation as to use of intoxicating liquors could be implied from defendant's mere acceptance of the books and his payment of the sum of $2 per page without objection. 3 - The contract sued on stipulated against the use of intoxicating liquors by plaintiff during its continuance, and the complaint alleged: That defendant, with full knowledge of plaintiff's use of intoxicating liquors, repeatedly avowed and represented to plaintiff that he was entitled to and would receive payment on performance of the contract; that plaintiff believed and relied on said representations, and in reliance thereon, continued in the performance of said contract; and that at all times during the performance by plaintiff it was mutually understood, agreed, and intended by the parties that, notwithstanding plaintiff's said use of intoxicating liquors, he was entitled to receive the compensation provided in the contract. Held, that this was a sufficient allegation of an express waiver by defendant of the stipulation.

Austin Instrument, Inc. V. Loral Corp. Appeal Ct.

1 - Where contractor was at no time under any immediate urgency or government pressure for deliveries under government contract and contractor's effort to obtain subject items elsewhere was neither reasonable nor commensurate with urgency and gravity of situation with which contractor asserted it was confronted, subcontractor's threat to break first subcontract by work stoppage did not constitute basis for recovery by contractor on theory of economic duress after contractor entered new contract with subcontractor and agreed to price increases and contractor's acting deliberately and voluntarily precluded recovery. 2 - Though contractor's ability to timely procure subject parts from others than subcontractor and the price required to be paid therefor were matters properly to be considered in determining whether contractor acted voluntarily in acceding to subcontractor's demand for price increases, subcontractor on contractor's claim of economic duress did not have burden of proving that parts could have been timely purchased by contractor for less money elsewhere.

Sherwood v. Walker

1 - Where defendants had sold a blooded cow for 5½ cents per pound, both they and the purchaser supposing her to be sterile, defendants were justified in rescinding the sale before delivery, on finding her to be with calf. 2 - If the cow was a breeder, she was worth at least $750; if barren, she was worth not over $80. The parties would not have made the contract of sale except upon the understanding and belief that she was incapable of breeding, and of no use as a cow. A barren cow is substantially a different creature than a breeding one. 3 - If the mutual mistake had simply related to the fact whether she was with calf or not for one season, then it might have been a good sale, but the mistake affected the character of the animal for all time, and for its present and ultimate use. She was not in fact the animal, or the kind of animal, the defendants intended to sell or the plaintiff to buy.

Lucy V. Zehmer

1 - Where maker of contract was not intoxicated to extent of being unable to comprehend nature and consequences of instrument executed, contract would not be invalidated on ground of intoxication. 2 - Although agreement or mutual assent is essential to a valid contract the law imputes to person an intent corresponding to reasonable meaning of his words and acts and if words and acts would warrant reasonable person in believing he intended real agreement, person cannot set up as defense that he was joking. 3 - Where writing entered into called for sale and purchase of land upon title being satisfactory and circumstances surrounding transaction manifested no intent other than to enter into contract, binding contract of sale was entered into notwithstanding vendors secretly may not have been serious in acceptance of purchaser's offer. 4 - Where circumstances surrounding making of land purchase contract showed some drinking by two parties involved but not to extent they were unable to understand fully what they were doing, and there was no fraud, misrepresentation, sharp practice or dealing between unequal parties, no grounds existed to preclude ordering specific performance notwithstanding vendors' claim that contract had been entered into as a joke and as result of drinking.

Lefkowitz V. Great Minneapolis Surplus Store

1 - Where offer in advertisement addressed to general public is clear, definite, and explicit, and leaves nothing open for negotiation, it constitutes an offer, acceptance of which will complete the contract 2 - Newspaper advertisement of a stole "worth $139.50" for $1, first come, first serve, was a clear, definite, and explicit offer of sale by advertiser and left nothing open for negotiation, and plaintiff, who was first to appear at advertiser's place of business to be served, was entitled to performance on part of advertiser. 3 - Where defendant advertised sale of stole worth $139.50 for $1 on a first come, first serve basis, offer could not be modified by a house rule to effect that only women were qualified to receive the bargains advertised. 4 - We are of the view on the facts before us that the offer by the defendant of the sale of the Lapin fur was clear, definite, and explicit, and left nothing open for negotiation. The plaintiff having successful managed to be the first one to appear at the seller's place of business to be served, as requested by the advertisement, and having offered the stated purchase price of the article, he was entitled to performance on the part of the defendant.

Nursing Care Services, Inc. v. DObos

1 - Where patient, who was admitted to hospital with abdominal aneurysm, was placed in intensive care unit and thereafter had tubes and other medical equipment attached to her body which necessitated special attention, the in-hospital nursing care was essential to patient's health and safety, and nursing care corporation, which hospital called upon to provide individualized nursing services as ordered by patient's doctor, was entitled to recover for such services under emergency-aid quasi contract theory, even though the patient, during such period of hospitalization, was alone, unable to cope and without family assistance. 2 - Where patient, who had been admitted to hospital with abdominal aneurysm, was fully aware of her circumstances and readily accepted benefits conferred by nursing care corporation during period of at-home care, the patient was liable for payment for such services under quasi contract theory

Wood V. Lucy Lady Duff-Gordon

1 - Where the plaintiff, who possessed a business organization adapted to the placing of such designs and indorsements as plaintiff might make or approve, entered into agreement for exclusive right to handle and sell all such or license others to market them, and take out copyrights, and in return defendant was to have one-half of "all profits and revenues" to be accounted for monthly, and agreement that plaintiff would use all reasonable efforts to market such indorsements and designs was implied, and the contract is not void for want of mutuality and consideration. 2 - he acceptance of an exclusive agency created by an agreement is an assumption of its duties, and a promise by the agent to undertake and perform the terms of the contract may be implied even though it is not expressed in such agreement.

Dougherty Vs Salt

1 - Where the testimony of plaintiff's own witness, speaking at plaintiff's instance, shows that there was no consideration for a note, the mere fact that the note contained the words "value received" did not raise a question for the jury, in view of Negotiable Instruments Law, § 54; for the inference of consideration to be drawn from the form of the note was completely rebutted. 2 - A promissory note, executed and given to a nephew as a gift, is unenforceable.

Webb v. McGowin

1 - Where workman clearing upper floor of mill started to turn block loose so that it would drop to ground but saw deceased on ground where block would have fallen and to divert course of its fall workman fell with it sustaining injuries causing permanent disability, deceased's agreement to compensate workman held valid and supported by consideration. 2 - Under the decisions above cited, McGowin's express promise to pay appellant for the services rendered was an affirmance or ratification of what appellant had done raising the presumption that the services had been rendered at McGowin's request. 3 - In saving McGowin from death or grievous bodily harm, appellant was crippled for life. This was part of the consideration of the contract declared on. McGowin was benefited. Appellant was injured. Benefit to the promisor or injury to the promisee is a sufficient legal consideration for the promisor's agreement to pay.

Ardente v. Horan

1 - Where, in negotiating purchase and sale of residential property, prospective purchaser, in his purported acceptance of vendors' offer of sale, indicated that he was concerned as to whether specified items would be included as part of transaction, purchaser's response to vendors' offer did not constitute acceptance, but was mere counteroffer, and no contractual obligation was created. 2 - the language used in plaintiff's letter of September 8 is not consistent with an absolute acceptance accompanied by a request for a gratuitous benefit. We interpret the letter to impose a condition on plaintiff's acceptance of defendants' offer. The letter does not unequivocally state that even without the enumerated items plaintiff is willing to complete the contract. In fact, the letter seeks 'confirmation' that the listed items 'are a part of the transaction'. 3 - Thus, far from being an independent, collateral request, the sale of the items in question is explicitly referred to as a part of the real estate transaction. Moreover, the letter goes on to stress the difficulty of finding replacements for these items. This is a further indication that plaintiff did not view the inclusion of the listed items as merely collateral or incidental to the real estate transaction.

Office Pavillion S. Florida Inc. Vs. Asal Products Inc.

1 - Wholesaler's acceptance of contract to purchase chairs involved no promised performance, and therefore did not constitute consideration to support contract modification, where, under contract, distributor agreed to sell to wholesaler any chairs it chose to order at price set forth in price list. 2 - Benefit distributor purportedly received from wholesaler's ongoing marketing of office chairs was not consideration for wholesaler's contract with distributor to supply chairs. 3 - Contract in which distributor agreed to supply office chairs to wholesaler was not enforceable, where contract did not specify quantity of chairs to be purchased. 4 - While ASAL may have agreed to a contract, its acceptance involved no promised performance and therefore didn't constitute consideration to support contract modification for the chairs 5 - Chair contract is uneforceable b/c quantity term is essential for sale of goods according to florida law

Wasserman's Inc. v. Middletown

1 - damages based on gross receipts run the risk of being found unreasonable. Generally speaking, gross receipts do not reflect actual losses incurred because of the cancellation. Gross receipts, unlike net profits, do not account for ordinary expenses; nor do they account for the expenses specifically attributable to the breach. Here, we cannot determine whether the stipulated amount was based on damages that would likely flow from a breach or whether it is an arbitrary figure unrelated to any such damages. 2 - We cannot determine from plaintiffs' gross receipts the losses they sustained because of the Township's cancellation of the lease. Gross receipt doesn't reflect pt actual losses attributable to def's breach - This amount, however, does not necessarily reflect plaintiffs' actual losses on considering operating expenses or relocation costs and other expenses attributable to defendant's breach. 3 - we believe we should remand this matter to the trial court to consider the reasonableness of the clause in light of this opinion. In resolving that issue, the court should consider, among other relevant considerations, the reasonableness of the use of gross receipts as the measure of damages no matter when the cancellation occurs; the significance of the award of damages based on twenty-five percent of one year's average gross receipts, rather than on some other basis such as total gross receipts computed for each year remaining under the lease; the reasoning of the parties that supported the calculation of the stipulated damages; the lessee's duty to mitigate damages; and the fair market rent and availability of replacement space.

Howard v. Federal Crop Insurance Corp.

1 - if subparagraph 5(f) creates a condition precedent, its violation caused a forfeiture of plaintiffs' coverage. 2 - Second, if subparagraph 5(f) creates an obligation (variously called a promise or covenant) upon plaintiffs not to plow under the tobacco stalks, defendant may recover from plaintiffs (either in an original action, or, in this case, by a counterclaim, or as a matter of defense) for whatever damage it sustained *697 because of the elimination of the stalks. However, a violation of subparagraph 5(f) would not, under the second premise, standing alone, cause a forfeiture of the policy. 3 - subparagraph 5(f) does not state any conditions under which the insurance shall "not be payable," or use any words of like import. We hold that the district court erroneously held, on the motion for summary judgment, that subparagraph 5(f) established a condition precedent to plaintiffs' recovery which forfeited the coverage.2 4 - Nothing we say here should preclude FCIC from asserting as a defense that the plowing or disking under of the stalks caused damage to FCIC if, for example, the amount of the loss was thereby made more difficult or impossible to ascertain whether the plowing or disking under was done with bad purpose or innocently. To repeat, our narrow holding is that merely plowing or disking under the stalks does not of itself operate to forfeit coverage under the policy. 5 - Compliance by insureds with provision of Federal Crop Insurance Corporation policy that tobacco stalks on any acreage of certain types of tobacco with respect to which loss is claimed shall not be destroyed until Corporation makes inspection was not condition precedent to recovery and failure of insureds to comply did not work forfeiture of benefits for alleged losses.

Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co.

1 - it is undisputed that the critical language of paragraph 4(c) of the letter agreement unambiguously establishes an express condition precedent rather than a promise, as the parties employed the unmistakable language of condition ("if," "unless and until"). There is no doubt of the parties' intent and no occasion for interpreting the terms of the letter agreement other than as written. 2 - because the critical concern of forfeiture or unjust enrichment is simply not present in this case, we are not presented with an occasion to consider whether the doctrine *693 of substantial performance is applicable, that is, whether the courts should intervene to excuse the nonoccurrence of a condition precedent to the formation of a contract. 3 - This matter was sufficiently important to defendant that it would not enter into the sublease "unless and until" the condition was satisfied. Inasmuch as we are not dealing here with a situation where plaintiff stands to suffer some forfeiture or undue hardship, we perceive no justification for engaging in a "materiality-of-the-nonoccurrence" analysis. 4 - Doctrine of substantial performance was inapplicable to condition precedent to formation of sublease—there would be no sublease unless and until tenant delivered to prospective subtenant prime landlord's written consent to tenant work; tenant suffered no forfeiture and conferred no benefit upon subtenant, and, thus, no justification existed for engaging in analysis of materiality of the nonoccurrence.

Shirley MacLaine Parker v. Twentieth Century Fox Film Corp.

1 - no case cited or which our research has discovered holds or suggests that reasonableness is an element of a wrongfully discharged employee's option to reject, or fail to seek, different or inferior employment lest the possible earnings therefrom be charged against him in mitigation of damages.5 2 - Failure of actress to accept tendered substitute employment offer, under which actress would appear as female lead in dramatic "western type" production set in opal mine in Australia, and which proposed to eliminate or impair director and screen play approvals accorded to actress under original contract, in place of lead in musical review, which called upon actress' talents as a dancer as well as an actress, and which was to be produced in Los Angeles, could not be applied in mitigation of damages for breach of contract whereby actress was to appear in musical.

Maxwell Vs. Fidelity Financial Services Inc.

1 - ssues of material fact as to whether borrower's initial contract with lender was unconscionable precluded summary judgment for lender on its novation claim, as condition precedent to valid novation is previous valid duty or obligation; contract presented, at least, question of grossly-excessive price, and security terms, permitting lender not only to repossess water heater that it financed but also to foreclose on lender's home, could constitute unconscionability.

Kutzin v. Pirnie

1 - the Pirnies' refusal to proceed constituted a breach of contract entitling the Kutzins to recover compensatory damages for the loss they suffered as a result of the breach. We also hold that the Kutzins cannot retain the entire deposit as damages. 2 - The Pirnies are entitled to restitution of their deposit less the amount of the injury to the Kutzins caused by the Pirnies' breach. To allow retention of the entire deposit would unjustly enrich the Kutzins and would penalize the Pirnies contrary to the policy behind our law of contracts. 3 - Vendor is not entitled to retain entire deposit as matter of course when purchaser breaches contract to purchase real estate that does not contain liquidated damages or forfeiture clause; whenever purchaser proves that deposit on real estate contract exceeds vendor's actual damages suffered as result of breach, purchaser may recover portion in excess of actual damages; adopting Restatement (Second) of Contracts, section 374, allowing party in breach to restitution of any benefit party has conferred by way of part performance or reliance in excess of loss caused by breach

DeFontes v. Dell, Inc

1 - the crucial question in this case is whether defendants reasonably invited acceptance by making clear in the terms and conditions agreement that (1) by accepting defendants' product the consumer was accepting the terms and conditions contained within and (2) the consumer could reject the terms and conditions by returning the product. 2 - On the first question, defendants notified plaintiffs that "[b]y accepting delivery of the computer systems, related products, and/or services and support, and/or other products described on that invoice[,] You ('Customer') agrees to be bound by and accepts those terms and conditions." This language certainly informed plaintiffs that defendants intended to bind them to heretofore undisclosed terms and conditions, but it did not advise them of the period beyond which they will have indicated their assent to those terms 3 - , many of the courts that have enforced so-called "approve-or-return" agreements cite language informing the consumer of a specific period after which he or she will have accepted the terms. 4 - Many of the cases upholding shrinkwrap agreements cite explicit disclaimers advising consumers of their right to reject the terms. The terms and conditions agreement sent to Ms. DeFontes nevertheless made the important connection between acceptance of the terms by accepting delivery and rejection by returning the goods.16 5 - although "Dell does provide a 'total satisfaction policy' whereby a customer may return the computer, this return policy does not mention the customer's ability to return based on their unwillingness to comply with the terms. 6 - "Shrinkwrap" terms and conditions agreements sent to computer buyers did not adequately inform them of their right and method of rejection of the goods, and thus buyers' retention of the goods did not indicate assent to the terms and conditions agreements and buyers were not bound by arbitration clauses in the agreements; introductory provision which stated that, by accepting delivery, buyers agreed to be bound by and accepted the terms and conditions, did not mention either seller's return policy or the 30-day period in which a buyer could exercise his or her right to return the product, return policy was explained in a distinct section of the terms and conditions agreement, which confusingly informed the buyers that computers "purchased directly" from seller "by an end-user Customer" could be returned under the "total satisfaction" return policy "in effect on the date of the invoice," and return policy did not clearly explain that a buyer's right to return the product included rejection of the terms and conditions agreement.

Steuart v. McChesney

1 - the plain meaning of the agreement in question is that if, during the lifetime of the appellant, a bona fide purchaser for value should be obtained, the appellees may purchase the property "at a value equivalent to the market value of the premises according to the assessment rolls as maintained by the County of Warren and Commonwealth of Pennsylvania for the levying and assessing of real estate taxes." 2 - Right of first refusal clause providing that, upon the owners' receipt of a bona fide offer, the subject real property could be purchased at a value equivalent to the market value of the property according to the assessment rolls as maintained by the county for the levying and assessing of real estate taxes was not ambiguous and, thus, extrinsic evidence was not admissible to establish that the parties intended to provide that the exercise price be the amount of the bona fide offer. 3 - The instant agreement, not being reasonably susceptible to being understood in more than one sense, whether by patent or latent ambiguity, does not present language in need of extrinsic clarification 4 - any divergence between the exercise price and the bona fide offer cannot be eliminated by construction where no ambiguity exists

Kenford Co. v. Erie County

1 - the proof does not satisfy the requirement that liability for loss of profits over a 20-year period was in the contemplation of the parties at the time of the execution of the basic contract or at the time of its breach. Indeed, the provisions in the contract providing remedy for a default do not suggest or provide for such a heavy responsibility on the part of the County. In the absence of any provision for such an eventuality, the commonsense rule to apply is to consider what the parties would have concluded had they considered the subject. The evidence here fails to demonstrate that liability for loss of profits over the length of the contract would have been in the contemplation of the 2 - we note that despite the massive quantity of expert proof submitted by DSI, the ultimate conclusions are still projections, and as employed in the present day commercial world, subject to adjustment and modification. The foundations upon which the economic model was created undermine the certainty of the projections. 3 - The economic facts of life, the whim of the general public and the fickle nature of popular support for professional athletic endeavors must be given great weight in attempting to ascertain damages 20 years in the future. New York has long recognized the inherent uncertainties of predicting profits in the entertainment field in general and, in this case, we are dealing, in large part, with a new facility furnishing entertainment for the public. 4 - Plaintiff could not recover loss of prospective profits for its contemplated 20-year operation of domed stadium which was to be constructed by county, where proof was insufficient to satisfy requirement that liability for loss of profits over 20-year period was in contemplation of parties at time of execution of basic contract or at time of its breach, and, despite massive quantity of expert proof submitted by plaintiff, ultimate conclusions were still projections, and as employed in present day commercial world, subject to adjustment and modification.

Krell v. Henry

1 - the use of the rooms was let and taken for the purpose of seeing the Royal procession. 2 - I think that it cannot reasonably be supposed to have been in the contemplation of the contracting parties, when the contract was made, that the coronation would not be held on the proclaimed days, or the processions not take place on those days along the proclaimed route; 3 - and I think that the words imposing on the defendant the obligation to accept and pay for the use of the rooms for the named days, although general and unconditional, were not used with reference to the possibility of the particular contingency which afterwards occurred. 4 - where the rooms were offered and taken, by reason of their peculiar suitability from the position of the rooms for a view of the coronation procession, surely the view of the coronation procession was the foundation of the contract, 5 - Defendant is excused from performance because his purpose for entering into the contract was frustrated. Defendant's purpose of entering into the contract was to view the coronation of the King. This purpose was understood by both of the parties and regarded as the foundation of the contract. Further, the rooms were taken by their reason to suitability for viewing the coronation processions and thus the purpose of the contract. 6 - Performance of the contract was not rendered impossible, since Defendant could remain in the flat even though the coronation procession did not take place. However, Defendant would not receive any benefit from staying in the flat, therefore he must be excused from performing. 7 - Parol evidence is admissible to show that the subject of the contract, which was flats to view the coronation and was known by both of the parties, in order to determine whether the object of the contract was frustrated by the nonoccurrence of the coronation. Therefore, the court held that Defendant was excused from performing under the contract and Plaintiff's claim is dismissed.

Aetna Casulty and Surety Co. v. Murphy

1 - three considerations are central. First, the contractual provisions presently at issue are contained in an insurance policy that is a "contract of adhesion," the parties to this form contract having had no occasion to bargain about the consequences *416 of delayed notice. 2 - Second, enforcement of these notice provisions will operate as a forfeiture because the insured will lose his insurance coverage without regard to his dutiful payment of insurance premiums. 3 - Third, the insurer's legitimate purpose of guaranteeing itself a fair opportunity to investigate accidents and claims can be protected without the forfeiture that results from presuming, irrebuttably, that late notice invariably prejudices the insurer. 4 - The fact that the notice provisions in the Chubb insurance policy were an inconspicuous part of a printed form; supports the characterization of these clauses as a "contract of adhesion." Nothing in the record suggests that they were brought to Murphy's attention or that, if they had been, their terms would have been subject to negotiation 5 - It is equally clear that literal enforcement of the notice provisions in this case will discharge Chubb from any further liability to Murphy with regard to the present claims for insurance coverage. The operative effect of noncompliance with the notice provisions is a forfeiture of the interests of the insured that is, in all likelihood, disproportionate. 6 - In determining whether an insured is entitled to relief from such a disproportionate forfeiture, loss of coverage must be weighed against an insurer's legitimate interest in protection from stale claims. 7 - "The purpose of a policy provision requiring the insured to give the company prompt notice of an accident or claim is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances.... And further, if the insurer is thus given the opportunity for a timely investigation, reasonable compromises and settlements may be made, thereby avoiding prolonged and unnecessary litigation." 8 - If this legitimate purpose can be protected by something short of automatic enforcement of the notice provisions, then their strict enforcement is unwarranted. 9 - Although insurer was not automatically discharged because of delay of insured in giving notice of insured occurrence, insurer was entitled to summary judgment, where insurer's affidavit opposing summary judgment contained no factual basis for claim that insurer had not been materially prejudiced by delay.

Angel V. Murray

1 - under circumstances presented, theres no doubt that the city voluntarily agreed to modify the 1964 contract (Maher explained his reasons for making the request, and the city voted to authorize it). 2 - Cts held that city charter did not require that contract modifications be entered into only upon written recommendation of city manager; that promises modifying duties under contracts not fully performed are enforceable if modification is fair and equitable; and that modification of five-year refuse hauling contract by increasing hauler's compensation because of unanticipated increase in number of dwelling units was reasonable. 3 - a. the modifcation was made when the 5yr contract had not yet been fully performed. b. the contract was based on maher's past expereicne that the number of refuse-generating units would increase at a rate of 20-25/year. The increase of 400 units went behond any previous expectations. c. the council agreemnt to pay maher 10k seemed fair and equitable in the circumstances.

Peevyhouse v. Garland Coal & Mining Co.

1 - under the 'cost of performance' rule, plaintiffs might recover an amount about nine times the total value of their farm. Such would seem to be 'unconscionable and grossly oppressive damages, contrary to substantial justice' within the meaning of the statute 2 - 23 O.S.1961 §§ 96 and 97, in spite of the agreement of the parties, limit the damages recoverable to a reasonable amount not 'contrary to substantial justice'; they prevent plaintiffs from recovering a 'greater amount in damages for the breach of an obligation' than they would have 'gained by the full performance thereof' 3 - • We therefore hold that where, in a coal mining lease, lessee agrees to perform certain remedial work on the premises concerned at the end of the lease period, and thereafter the contract is fully performed by both parties except that the remedial work is not done, the measure of damages in an action by lessor against lessee for damages for breach of contract is ordinarily the reasonable cost of performance of the work; 4 - however, where the contract provision breached was merely incidental to the main purpose in view, and where the economic benefit which would result to lessor by full performance of the work is grossly disproportionate to the cost of performance, the damages which lessor may recover are limited to the diminution in value resulting to the premises because of the non-performance. 5 - Where lessee failed to perform provision of coal mining lease requiring lessee at end of lease to perform remedial work, which would have cost estimated $29,000, but which would have increased value of farm of lessors only $300, relative economic benefit rule rather than cost of performance rule was applicable in lessors' action to recover damages of $25,000 for breach of contract, and lessors could recover only $300. 6 - Measure of damage for failure of lessee to perform remedial work as required by coal mining lease at end of lease is ordinarily reasonable cost of performance of work, but where lease provision breached was merely incidental to main purpose in view, and where economic benefit which would result to lessor by full performance of work is grossly disproportionate to cost of performance, damages recoverable by lessor are limited to diminution in value resulting to premises because of nonperformance.

Rockingham Country v. Luten Bridge Co.

1 - we do not think that, after the county had given notice, while the contract was still executory, that it did not desire the bridge built and would not pay for it, plaintiff could proceed to build it and recover the contract price. 2 - , after plaintiff had received notice of the breach, it was its duty to do nothing to increase the damages flowing therefrom. When, therefore, the county gave notice to the plaintiff that it would not proceed with the project, plaintiff should have desisted from further work. It had no right thus to pile up damages by proceeding with the erection of a useless bridge. 3 - If a man engages to have work done, and afterwards repudiates his contract before the work has been begun or when it has been only partially done, it is inflicting damage on the defendant without benefit to the plaintiff to allow the latter to insist on proceeding with the contract. The work may be useless to the defendant, and yet he would be forced to pay the full contract price. 4 - The defendant, by requiring the plaintiff to stop work upon the paintings, violated his contract, and thereby incurred a liability to pay such damages as the plaintiff should sustain. Such damages would include a recompense for the labor done and materials used, and such further sum in damages as might, upon legal principles, be assessed for the breach of the contract; but the plaintiff had no right, by obstinately persisting in the work, to make the penalty upon the defendant greater than it would otherwise have been.'

Hadley v. Baxendale

1 - we find that the only circumstances here communicated by the plaintiffs to the defendants at the time the contract was made, were, that the article to be carried was the broken shaft of a mill, and that the plaintiffs were the millers of that mill. 2 - it is obvious that, in the great multitude of cases of millers sending off broken shafts to third persons by a carrier under ordinary circumstances, such consequences would not, in all probability, have occurred; and these special circumstances were here never communicated by the plaintiffs to the defendants. It follows, therefore, that the loss of profits here cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract. 3 - For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants.

K&G Constr. Co. v. Harris

1 - we have no hesitation in holding that the promise and counter-promise under consideration here were mutually dependent, that is to say, the parties intended performance by one to be conditioned on performance by the other; and the subcontractor's promise was, by the explicit wording of the contract, precedent to the promise of payment, monthly, by the contractor. 2 - It would be unusual if we were to hold that a building contractor, who has obtained someone to do work for him and has agreed to pay each month for the work performed in the previous month, has to continue the monthly payments, irrespective of the degree of skill and care displayed in the performance of work, and his only recourse is by way of suit for ill-performance 3 - when the subcontractor's employee negligently damaged the contractor's wall, this constituted a breach of the subcontractor's promise to perform his work in a 'workmanlike manner, and in accordance with the best practices.' And there can be little doubt that the breach *315 was material: the damage to the wall amounted to more than double the payment due on August 10 4 - As the promises were mutually dependent and the subcontractor had made a material breach in his performance, this justified the contractor in refusing to make the August 10 payment; 5 - hence, as the contractor was not in default, the subcontractor again breached the contract when he, on September 12, discontinued work on the project, which rendered him liable (by the express terms *316 of the contract) to the contractor for his increased cost in having the excavating done-a stipulated amount of $450. 6 - Subcontractor's employee's act in negligently damaging contractor's wall constituted a breach of subcontractor's promise to perform his work in a workmanlike manner in accordance with best practices and allowed contractor, damaged thereby, to withhold in partial satisfaction of damages an installment payment which, under terms of contract, was otherwise due subcontractor.

Academy Chicago Publishers v. Cheever

Agreement between publisher and author's widow to publish collection of author's stories lacked essential terms required for formation of enforceable contract where agreement was silent as to minimum or maximum number of stories or pages necessary for publication, as well as which party would decide which stories to be included; without setting forth adequate terms for compliance, agreement provided no basis for determining when breach had occurred.

Balfour v. Balfour

Arrangements made b/t husband and wife don't constitute contracts even though there may be what as b/t other parties would constitute consideration for the agreement b/c the parties didn't intend that they should be attended by legal consequences.

Hobbs v. Massasoit Whip Co.

Holmes says that under the circumstances sending the eel skins and not hearing anything back from the defendant created the reasonable expectation that they had been accepted. This defendant was in the business of buying eel skins and did so regularly. The plaintiff and defendant both knew this, so it was reasonable for the defendant to either speak up or accept the skins by default. Holmes says that contract formation is based on objective mutual assent, which is to say that any conduct that "looks like, smells like, quacks like" an acceptance is an acceptance in the eyes of the law.

Lingenfelder V. Wainwright Brewery Co.

Where the architect engaged in the erection of a brewery declines to proceed with his undertaking upon discovering that the contract for the refrigerating plant has been awarded to a business rival of the refrigerating company of which he is president, takes away his plans, and calls off his superintendent in charge of the building, a promise by the president of the brewery company, who was in great haste to have the building completed, to pay him a commission of 5 per cent. upon the cost of the refrigerating plant as an inducement to resume work, is void for want of consideration.