Pretest
A general contractor advertised in a trade publication that she planned to bid on the construction of a new building. The advertisement welcomed bids from subcontractors to perform various functions, such as plumbing, electrical work, and masonry. The lowest plumbing bid she received was from a plumber for $10,000. The general contractor used that bid in preparing her bid and submitted the bid to the client. Shortly thereafter, the plumber called her and explained that there was a mistake in his bid and he could not perform the work for less than $12,000. The general contractor was awarded the contract and told the plumber she was accepting his $10,000 bid, but the plumber reiterated that he would not do the work for less than $12,000. The general contractor hired a different company to do the plumbing work on the building at a cost of $12,000. She now sues the plumber for damages. What is she entitled to recover?
$2,000, which represents the difference between the plumber's bid and the amount she had to pay for the plumbing work.
An entrepreneur purchased several acres of scrub-covered land of little apparent value. Shortly thereafter, an international conglomerate announced plans to develop a theme park on a tract immediately adjacent to the entrepreneur's scrubland. The plan caused real estate values in the surrounding area to skyrocket. Rather than resell his land for a substantial profit, the entrepreneur decided to build a variety of tourist- oriented facilities on the land. To finance his project, the entrepreneur obtained a loan from a bank in exchange for a $20,000 mortgage on his land. The bank promptly recorded the mortgage. A few days later, the entrepreneur went to a credit union and took out a $15,000 mortgage on the land. The credit union knew of the bank's mortgage, and the credit union promptly recorded its own mortgage. A few weeks after that, the entrepreneur went back to the bank and, after full disclosure of the credit union's mortgage, obtained another advance of $15,000 from the original bank mortgage, increasing the amount borrowed against the mortgage from $20,000 to $35,000. The bank promptly recorded the change. After spending much of these funds on retainers for architects, builders, and attorneys, the entrepreneur was upset to learn that the county council summarily rejected the theme park proposal. The entrepreneur made no more mortgage payments to the credit union, but continued to make payments to the bank. The credit union brought a foreclosure action against the entrepreneur and included the bank as a party. The value of the land in the area had plummeted, so the proceeds at the foreclosure sale were just $18,000 after attorneys' fees and court costs. How should the proceeds be divided?
$3,000 to the bank and $15,000 to the credit union.
During a personal injury case, the jury deter- mined that the plaintiff was 30% at fault for his own injuries, the defendant was 30% at fault, and a third party was 40% at fault. The jury further found that the plaintiff suffered $100,000 worth of damages. The jurisdiction has a partial comparative negligence statute that bars a plain- tiff's recovery if his fault was greater than that of the defendant, and has abolished joint and several liability. How much can the plaintiff collect from the defendant?
$30,000, because the defendant was 30% at fault.
A retail store ordered 100 women's swimsuits at $10 each, as advertised in the catalog of a swimwear manufacturer. The manufacturer shipped 40 swimsuits to the store, along with a letter stating in relevant part: "We have shipped you 40 swimsuits at $10 each in response to your recent order. Please remit $400. Be informed that limited inventory will prevent us from being able to ship any additional suits at this time or at any time during this year's beach season." The store took the 40 suits and began to sell them. The store immediately sought an alternate supplier of swimsuits. The best price it could obtain was $11 per suit from a different company. The store ordered, received, accepted, and paid for 60 suits at $11 each from the other company. The store has refused to pay the manufacturer the $400, and the manufacturer has sued for payment. What is the manufacturer entitled to recover?
$340, the contract price for the 40 suits, less the store's cover damages.
Several years ago, a lender lent a borrower $1,000, and the parties agreed in writing that the borrower would repay the lender within one year. The borrower failed to repay the lender, but the lender took no action prior to the expiration of the five-year statute of limitations on suits for debt. Some time after that, the lender phoned the borrower and told him, "If you'll pay me$600 now, I'll forget all about that unpaid $1,000 debt." The borrower agreed orally and then sent the lender a signed letter, which stated, "I, the borrower, agree to pay the lender $600." The borrower never paid the lender the $600 and the lender sued the borrower shortly thereafter. What is the lender entitled to recover?
$600, because the borrower's moral obligation to pay the lender $1,000 became the consideration for the borrower's agreement to pay the lender $600.
The defendant is being tried for murder in the bludgeoning death of his brother. The defendant denies any involvement in the crime. He calls a witness to the stand, who testifies that, in his opinion, the defendant is a nonviolent, peaceable man. Which of the following, if offered by the prosecution, would most likely be admissible?
A police officer's testimony that the defendant has a general reputation in the community as a violent person.
A fire broke out in a home that had been recently remodeled, destroying the house and injuring the homeowner. An investigation by the fire marshal established that the fire started from a short in some wiring behind a wall. A small section of wiring that ran to an outlet through a narrow gap between a furnace chimney and a hot water pipe had had part of its outer sheath cut off. The homeowner filed suit against the electrical company that did the rough wiring. The parties stipulated for trial that the company had installed the wiring in compliance with the blueprints, and that the wiring had been inspected and approved by the building inspector before the chimney and the water pipe had been installed and the walls put up, all by different contractors. At trial, the homeowner introduced the report of the fire marshal establishing how the fire started, and evidence of his medical expenses and other damages. At the end of the homeowner's case, the electrical company's attorney rested her case and moved for a directed verdict. The homeowner's attorney also moved for a directed verdict. How should the court rule on the directed verdict motions?
Deny the homeowner's motion and grant the electrical company's motion for a directed verdict, because the wire could have been damaged by another contractor.
A utility company working underground installed a guardrail around its access hole for safety. Although the guardrail completely surrounded the hole, there was an opening in one part of the rail to make it easier to pass down tools to those working below. The owner of a show dog living across the street from the utility access hole frequently walked his dog in his front yard without a leash. One afternoon, the dog unexpectedly chased a squirrel out of the dog owner's yard and ran through the opening of the guardrail, falling into the open hole and suffering broken bones and internal injuries. Although expert veterinary care saved the dog's life, the dog was no longer of "show quality" after the injuries. The dog owner brought a negligence claim against the utility company to recover his economic losses resulting from the injuries to his dog. At trial, the dog owner presented the above facts. The utility company presented uncontested evidence that the guardrail used by the company meets typical industry standards, and that the opening in the guardrail was not large enough for a person to have fallen through. At the close of the evidence, the utility company moved for a directed verdict. What should the court do?
Deny the verdict, because the jury could find that the company failed to exercise reasonable care in making the dangerous condition safe.
To fight drug abuse, a state enacted a statute forbidding the selling of model airplane glue to anyone under the age of 18 except in small quantities in prepackaged model kits. Violation of the statute was penalized by fines or, in cases of multiple violations, possible imprisonment. The statute also required that all elementary and secondary schools licensed by the state provide comprehensive drug education programs. Neither the legislature nor the courts of the state have abolished the common law tort defense of assumption of the risk. The owner of a hobby shop in the state sold a large tube of airplane glue to a 15-year-old boy who reasonably appeared to be at least 18 years old. The boy had received drug education in his school, as mandated by the statute, including coverage of the dangers of glue sniffing. The boy understood the anti-drug instruction, but he wanted to experience it for himself. The boy sniffed the glue repeatedly and suffered perma- nent brain damage. If the boy's parents file suit on the boy's behalf against the store owner, for whom is the court likely to rule?
For the boy, because the store owner vio-lated the statute when she sold the glue to the boy.
A young boy was hospitalized after he accidentally swallowed a coin while playing. The boy recovered, but his mother began suffering feelings of anxiety, worrying that her child might be injured again. The mother went to a movie to relax and ordered some popcorn. While handling her change, the concession stand attendant carelessly dropped a quarter into the popcorn, which the mother did not notice until she bit the quarter. She did not swallow the quarter, nor did she bite on it hard enough to injure her teeth or gums, but the feel of the coin brought back all her anxieties about the boy's injury. The mother sued the movie theater for her emotional distress. If the jury finds that a reasonable person would not have suffered similar distress under the circumstances, is the mother likely to prevail?
No, because she suffered no actionable harm
The defendant was being sued by the plaintiff for driving his car negligently and injuring the plaintiff. The defendant called as a witness his brother, who was in the passenger seat of the defendant's car when the accident occurred. His brother testified that the defendant was driving safely and well below the posted 55-mile-per- hour speed limit. Shortly before the trial began, the brother's secretary telephoned the plaintiff and told him that the brother has been under- stating his income to the government for years. The Internal Revenue Service has never charged the brother with tax evasion, but the secretary's information was accurate. On cross-examination, the plaintiff's attorney asked the brother, "Have you ever cheated on your tax returns?" The defendant's attorney objects. Should the objection be sustained?
No, because the brother's tax evasion shows a tendency to lie.
A pâté manufacturer entered into a written agreement with a gourmet food store. The manufacturer agreed to sell "all" its "output of liver pâté" to the store and the store agreed to sell the manufacturer's pâté "exclusively." The agreement between the store and the manufacturer also contained the statement, "either party may cancel this contract after two months on giving reasonable notice to the other party." After the manufacturer filled the store's orders for six months, the manufacturer determined that it was becoming too costly to operate and maintain the special oven used to roast the pâté loaves, and that it would be difficult and expensive to find a suitable substitute. The manufacturer, therefore, notified the store that it was getting out of the pâté business, and explained why, and that it would stop shipping pâté to the store after 60 days. The store sued the manufacturer, demanding that the manufacturer continue to ship pâté to the store or pay monetary damages. Will the store prevail?
No, because the expense of fixing the oven provides a good faith reason for stopping production.
A third-year college student telephoned his father and asked for $1,000 for living expenses. The father agreed to send him the money but told him that he needed to find a classier girlfriend or he would get no more money. The son thanked his father, and promptly went to a jeweler and selected an engagement ring for his girlfriend priced at $5,000. The son, who was 21 years of age, signed a contract to purchase the ring. The contract required the son to make a $1,000 down payment and then to make a series of installment payments. The son planned to use the $1,000 check he was expecting from his father for the down payment. The father discovered the son's plan to buy the engagement ring and refused to send the $1,000 check. The jeweler is now demanding that the son make the $1,000 down payment on the ring and pay the first installment as well. Can the son legally enforce his father's promise to send the $1,000?
No, because the father did not promise to send the money with the expectation of inducing the son to buy an engagement ring for his girlfriend.
The owner of a large fleet of buses contracted in writing with a mechanic that all general maintenance and extraordinary repairs required for the buses would be performed by the mechanic. The fleet owner's wife owned and operated a small advertising agency. The fleet owner included a clause in the agreement that the mechanic would place all his ads for his repair shop through the wife's agency during the one-year term of the agreement. For six months, the mechanic dutifully placed all his ads through the wife's agency and informed her of his agreement with the fleet owner. During that time, the wife turned down work from two prospective clients because of the time that she would have to devote to designing and disseminating ads from the mechanic. The mechanic then discovered that the fleet owner was having some of his buses repaired and maintained by other shops. The mechanic immediately ceased placing ads through the wife and employed another agency. Can the wife successfully bring suit against the mechanic to enforce the agreement?
No, because the fleet owner's exclusive use of the mechanic's repair shop was a condition for the mechanic's duty to purchase ads through the wife, and the fleet owner's actions excused the mechanic's duty to the wife.
An electrician submitted a bid for electrical work in response to a newspaper ad placed by a general contractor, who was bidding on the renovation of an office building. The electrician's bid was the lowest and the general contractor used it to form his bid submitted to the owner of the building. The general contractor was awarded the contract, but later decided to hire another party, who had initially submitted a higher bid, to perform the electrical work. If the electrician sues for damages, will he prevail?
No, because the general contractor never communicated an acceptance of the electrician's offer.
Defendant was put on trial for robbery and aggravated battery. Despite having been seriously injured in the attack, the victim took the witness stand and identified the defendant as his attacker. The first trial ended in a hung jury on both charges, and the victim died shortly thereafter from his injuries. The district attorney then charged the defendant with felony murder. At the trial on that charge, the prosecution offers into evidence the victim's testimony at the first trial identifying the defendant as his assailant. The defendant's attorney immediately objects. Should the objection be sustained?
No, because the requirements of the exception to the hearsay rule for former testimony have been satisfied.
The plaintiff sued the defendant for bodily injuries suffered by the plaintiff as a result of a collision between the cars they were driving. The accident occurred on a rainy day, when the defendant's car skidded across the center line and struck the plaintiff's car. A principal issue is whether the defendant was driving too fast for the wet conditions. At trial, the plaintiff calls a witness who is prepared to testify that he has lived next door to the defendant for 15 years, and that the defendant is notorious in the neighborhood for driving his car at excessive rates of speed. The defendant's attorney objects. May the witness's testimony be allowed?
No, because the testimony is improper character evidence.
The defendant was on trial on a hit and run charge, whereby the prosecution asserted that the defendant's vehicle struck and injured an elderly pedestrian, and then the defendant sped away from the scene of the accident without stopping to assess the pedestrian's injuries or to render assistance. The defendant took the stand and denied the charge. A priest is ready to testify that he has known the defendant for 12 years, that the defendant has performed many charitable acts, and that the defendant is a highly responsible person who would not run away from his obligations by leaving the scene of an accident. If the prosecution objects to the priest's proposed testimony, should the court bar the priest from testifying?
No, because the testimony shows that the defendant is a person of good character.
A vintner whose winery building burned down sued a supply company, alleging that two large tanks that he had purchased from the supply company a month earlier had overheated and caused the fire. The supply company's defense is that the fire was caused by the vintner's failure to install modern electrical wiring in the rather old building. At trial, the vintner seeks to establish that the tanks overheated by testifying that, two weeks after the tanks were installed, a supply company employee came to inspect the installation, and the vintner said to him, "You know, sometimes these tanks get awful hot." Should the vintner be permitted to so testify?
No, because the vintner's testimony is inadmissible hearsay.
On April 1, a graduate student who owned an antique dictionary agreed to sell it to a buyer for $1,500. The written contract between the seller and the buyer provided that the dictionary would not be delivered to the buyer until April 20. Late on April 15, a fire swept through the seller's apartment building, through no fault of the seller, and the dictionary was destroyed. Fortunately for the seller, he had insurance that covered all of his damages, including compensation for the destroyed dictionary. On April 20, the seller told the buyer of the fire, but still demanded payment, claiming that the buyer was the equitable owner of the dictionary when it was destroyed, and told her that she could have obtained insurance on the dictionary had she wanted to, because she had an insurable interest in the dictionary as soon as the contract was made. The buyer refused to pay. The seller brings an action against the buyer for the $1,500. Who will prevail?
The buyer, because destruction of the dictionary avoids the contract and discharges her duty to pay.
A child was severely injured at an amusement park when she was ejected from a ride that went slightly off its track. The ride malfunctioned as a result of a manufacturer's defect, but had the child been properly secured in the ride's seatbelt by one of the ride operators, she would not have been injured. The child was unable to identify which ride operator improperly buckled her in. In the child's suit against the amusement park, who will win?
The child will win, because a ride operator failed to use reasonable care in securing the seatbelt.
The plaintiff was exiting from a parking garage owned and operated by the city when he discovered that the exit ramp was blocked by construction barricades and a pile of broken- up concrete. No workers or detour signs were around and the plaintiff was in a hurry, so he backed up and drove down an entrance ramp that was clearly marked as such. As he came around a corner, his car was broadsided by a pickup truck. The plaintiff was seriously injured in the collision. A statute in the jurisdiction requires drivers to obey all traffic directional markings in both public and private parking lots and garages. The jurisdiction retains governmental immunity for municipalities. If the plaintiff brings a lawsuit against the city to recover for his injuries, which of the following facts will be LEAST helpful in the city's defense?
The construction workers responsible for blocking off the exit ramp were employees of an independent contractor rather than the city.
A state statute provides as follows: Any judgment properly filed shall, for 10 years from the date of filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered. A landowner conveyed a lot in that state to his aunt, who had had a judgment lien recorded against her two years earlier in the county in which the land was located. One year later, the aunt conveyed the property to a buyer by general warranty deed. The deed did not mention the lien, but the buyer was aware of it. Two years later, the buyer conveyed the property to a creditor by special warranty deed. The creditor was not aware of the lien and her deed also made no mention of it. One year after that transaction, the creditor conveyed the property to a developer by general warranty deed. The developer's deed did not mention the lien but the developer was aware of it. The next year, the developer entered into a contract to convey the property to an entrepreneur. The entrepreneur's title search disclosed the judgment lien against the aunt, and the entrepreneur refused to proceed with the transaction because title was not marketable. The developer brought an action against the entrepreneur for specific performance and was denied relief. He then brought an action against the aunt, the buyer, and the creditor for breach of warranty. Assuming that all transactions concerning the property were promptly and properly recorded, and that the party holding the judgment lien has taken no action as of yet to enforce it, which parties, if any, will be liable to the developer?
The creditor only, because the party holding the judgment lien has taken no action as of yet to enforce it.
A mother brought her nine-year-old son to an indoor shopping mall. She was not planning on making any purchases that day, just spending some time with her son. When her son needed to use the men's restroom, his mother did some window shopping at the adjacent store. A criminal cornered the boy in the men's room and assaulted him. The criminal then quickly left the mall and has not been apprehended. The mother filed suit against the mall's owner on behalf of her son for the injuries he suffered. If the mall is found not liable, what is the likely reason?
The criminal's act was a superseding force.
A landowner provided in his will that his property would pass on his death to his son for life, "then to my eldest grandchild living at my son's death for life, remainder to my great-grandchildren, share and share alike." When the landowner died, he was survived by his wife, his son, his son's son, his daughter, and his daughter's daughter. The son's son was the eldest of the two grandchildren. After the landowner's death, his son had another child, and his daughter had two more children. When the son died many years later, the son's eldest son had predeceased him, and seven great-grandchildren (of the landowner) had been born. At the son's death, in whom is title to the property vested?
The daughter's eldest daughter for life, remainder to the landowner's heirs.
A landowner owned a large tract of mineral- rich land in a sparsely populated area. He entered into a lease with a prospector who was interested in developing the land for mining. The term of the lease was two years and gave the prospector an option to buy the property at any time after the first year. The prospector did not record the lease. Six months later, the prospector left the land for a period of time to prospect in Mexico, leaving no goods on the land that would identify him. The landowner then conveyed the property in fee simple to a developer, who had inspected the property while the prospector was in Mexico and was unaware of the prior transac- tion. The developer did not immediately record her deed. After three months in Mexico, the prospector returned to the land and encountered the developer. A statute in the jurisdiction provides, in part: "No conveyance or mortgage of an interest in land, other than a lease for less than one year, is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded." If the developer brings an action to quiet title, how should the court rule?
The developer takes title subject to the prospector's leasehold interest and his option to purchase, because the prospector acquired his interest first.
A state statute provides that any teacher, guardian, therapist, school administrator, or any other person standing in loco parentis is subject to the same rights and duties as actual parents. No other statute is applicable to these facts. A residential institute for minors with mental or emotional disabilities had no fence surrounding its premises, but regular bedchecks were conducted each night to determine that all of the children were present. One night, a bedcheck determined that a 12-year-old resident of the institute was absent. The security guard who conducted the bedcheck immediately reported to the director of the institute that the boy was missing. The director initiated steps to find the boy but did not report the boy's absence to the police. Thirty-six hours after the boy ran away from the institute, he savagely beat and severely injured a six-year-old girl who lived a few blocks away from the institute. Her parents filed suit against the director on their daughter's behalf. Which party is likely to prevail in the lawsuit?
The director, unless he had reason to know that the boy had a propensity to commit violent acts.
The fee simple owner of an unimproved parcel of wooded land orally agreed to sell it to a buyer under an installment land contract. The buyer agreed to pay $5,000 down and $100 a month for the next 10 years, and the owner would retain the deed until the buyer finished paying the installments. After making the down payment, the buyer moved onto the property and began clearing some of the trees for a road and a cabin. He regularly made the payments for several months but then was killed by a falling tree. His properly executed will conveyed his real estate to a friend and the remainder of his estate, consisting of personal property and $200,000 in cash, to his son. During the next several months, his estate failed to make payments on the installment contract. The owner then notified the estate that he was rescinding the deal and asserting owner- ship of the parcel, and offered to return the amount the buyer had paid him, less expenses, as restitution. The buyer's estate initiated a quiet title action, naming the owner, the friend, and the son as parties. The estate's filings indicated that it was prepared to complete the conveyance and redeem the land by paying the accelerated full balance of the contract from the proceeds of the estate. The friend believes he should receive title to the parcel free of any obligation on the installment contract. Which of the following doctrines is inapplicable?
The equitable mortgage doctrine.
Seventeen years ago, a lumberjack purchased Lot 1, which is adjacent to Lot 2 and Lot 3. A public road runs along the far side of Lots 2 and 3. At the time of the purchase, he asked the owner of Lot 2 to grant him an easement to use the paved way across Lot 2 to haul logs to the public road. The owner of Lot 2 agreed. The lumberjack paid nothing for the easement, and the deed granting the easement was properly recorded. For six months, the lumberjack hauled logs across Lot 2. The lumberjack then negotiated with the owner of Lot 3, and she granted him a license to haul logs on the gravel road across Lot 3 to the public road, a shorter distance than the route across Lot 2. The lumberjack paid the owner of Lot 3 a modest annual fee for this privilege. Since that time, the lumberjack has never used the paved way across Lot 2 for any purpose. Six months ago, the owner of Lot 2 conveyed the lot to a buyer, and two weeks ago, the buyer had a chain-link fence built around the perimeter of Lot 2, which blocked the lumber- jack's access to the paved way crossing Lot 2. One week ago, acting within her rights, the owner of Lot 3 revoked the lumberjack's license to use the gravel road crossing Lot 3. The next day, the lumberjack demanded that the buyer of Lot 2 remove the chain-link fence because of the easement, but the buyer refused. The state has a 15-year prescription and adverse possession period. Which of the following best represents the lumberjack's rights under the circumstances?
The lumberjack may compel the buyer to allow him to use the easement, because nonuse of an easement does not constitute abandonment.
A woman arranged with a bank to take out a loan for $30,000, secured with a mortgage on her home. On June 3, the woman executed the note and the mortgage, and the bank gave her a certified check for $30,000. On June 4, the woman sold her home to a wealthy buyer for $150,000 in cash. The buyer knew nothing about the mortgage. On June 5, the buyer recorded her deed to the property. Two hours after the buyer recorded, the woman fled the country. On the evening of June 8, which was a Saturday, the buyer presented her niece with a deed to the property as a gift. At 10 a.m. on June 10, the bank recorded its mortgage. At 2 p.m. on June 10, the niece recorded her deed. After the woman missed her first mortgage payment on July 1, the bank employees went to the title office. They discovered the deeds to the buyer and her niece. The bank demanded that the niece satisfy the $30,000 mortgage. The niece filed an appropriate suit to determine the various interests in the property. The recording statute in the jurisdiction reads, in relevant part: "A conveyance of an estate in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded." How should the court should rule?
The niece owns the property free of the bank's mortgage, because the bank does not qualify as a bona fide purchaser for value.
A real estate investor purchased a home by taking out a $160,000 mortgage. After a few months, he sold the home to a buyer. According to the terms of the agreement signed by the parties, the buyer took the house "subject to the mortgage" and agreed to "assume payment of" the mortgage. A recession struck the area and the buyer found himself in financial difficul- ties. The buyer sold the home to a company that buys otherwise unsellable houses. Under the terms of the agreement signed by the parties, the company agreed to take "subject to the mortgage." All deeds and the mortgage were properly recorded. After two months, the company ceased making mortgage payments. The bank that held the mortgage unsuccessfully demanded payments from the company, the buyer, and the investor. The bank properly instituted proceedings to foreclose, and the house was put up for judicial sale. Because the recession had severely depressed property values, the house sold for only $120,000. After the $120,000 was applied to the mortgage, $37,800 was still owing on the principal amount. From whom can the bank seek judgment to cover the deficiency?
The real estate investor and the buyer.
A father owned a piece of property located near the state university. His son was a student at the university, and the father allowed the son and the son's classmate to live in the large house on the property rent free. On the son's 20th birthday, the father handed the son a signed instrument of conveyance containing the following language: "I give the property to my dearly beloved son on the condition precedent that he receive a college degree before he reaches the age of 30, and if he does not receive the degree by his 30th birthday, to my beloved daughter." The son promptly recorded the deed. Shortly thereafter, the son asked his classmate to start paying him rent. An argument evolved out of the son's request and the son told the classmate to get off his property. The classmate refused to leave and the son filed suit to evict him. How will the court rule?
The son loses, because the classmate is the father's tenant and not the son's.
A manufacturer of widgets sent an offer to a major wholesaler, offering a standard lot (quantity well-known in the widget trade) of widgets for $8,000. The president of the wholesaler personally mailed back to the manufacturer the wholesaler's standard printed acceptance form. However, the president wrote in large letters in his own hand on the form, "Our liability on this contract is limited to $200." Two days later, the manufacturer's sales manager received the communication from the wholesaler. A week later, the manufacturer had sent no additional communication to the wholesaler. What is the relationship between the parties?
There is a valid, enforceable contract between the manufacturer and the wholesaler, but it is limited to the terms of the manufacturer's offer.
The defendant is being sued under a federal statute that allows an action for damages by victims of domestic violence committed on military bases or other federal land. The lawsuit stems from the alleged longtime physical abuse of the eight-year-old daughter of the defendant's live-in girlfriend.At trial in federal court, the plaintiff, the girl's legal guardian, calls as a witness the physician who treated the girl for her injuries. The plaintiff seeks to have the doctor testify that, during his treatment of the girl, he told her that in order to treat her injuries properly, he needed to know how she received her injuries and the length of time that her condition had existed. The doctor will testify that the girl told him that the defendant had beaten her, and that the beatings had taken place fairly regularly for several months. Is the doctor's testimony admissible?
Yes, as a statement made to treat a physical condition.
The defendant was on trial for statutory rape. He denied that the alleged victim was even in his presence on the night of the alleged offense, when he was working as the night clerk at a convenience store. The prosecution offers to have a witness testify that, in a phone conversation on the evening in question, the victim, who is available to testify at the trial, said that she had to leave because the defendant wanted her to stop by the store while he was working. The defense objects to the proposed testimony. Should the court allow the witness's testimony?
Yes, as evidence that the victim was in the defendant's company that night.
On an icy day, a vehicle driven by the defendant struck the plaintiff's car in the rear, smashing a taillight and denting the plaintiff's bumper. Before the plaintiff could say anything, the defendant rushed out of his car and told the plaintiff, "Look, if you'll take $500 for the damage, I'm sure my insurance company will pay for it." The plaintiff refused and sued the defendant for damage to his car and minor personal injuries. The plaintiff wishes to testify as to the defendant's statement at the time of the accident. The defendant objects. Should the court allow the defendant's statement to be admitted?
Yes, because it is a statement by an opposing party.
An employee laced a co-worker's drink with a small quantity of a mild hallucinogen as a prank, expecting that her co-worker would have a minor vision or two and act in a comical manner. However, he had a severe reaction to the drug and experienced extreme hallucinations.The employee promptly brought her co-worker to the emergency room of a nearby hospital. The co-worker was put under observation for a couple of hours, but then was negligently released prematurely by the emergency room physician on duty. The next day, while driving, the co-worker had another powerful hallucination and drove his car into a bridge abutment. The co-worker sued the employee for his injuries. If the jury determines that the automobile accident was not reasonably foreseeable, will the co-worker's suit against the employee succeed?
Yes, because the employee intended that her co-worker should ingest the drug.
For a number of years, a leasing company has been in charge of leasing the luxury skyboxes at a local basketball stadium. During this time, it annually sent area businesses personalized "invitations" to lease skyboxes for the season. The invitations, which were always sent out several months before each season began, contained detailed price terms and language stating that the deadline for responding was 10 weeks before the start of the season and that all leases were subject to the approval of the management of the leasing company. A local advertising agency had always responded to their invitation immediately by registered mail because they found it very worth- while to lease a skybox to entertain their clients. During the five years that they had responded affirmatively to the invitation, they never received any additional communications from the leasing company regarding approval, but the tickets and an invoice would arrive about a week before the season began. Several months before the current season, the advertising agency received and immediately responded to its invitation. Two weeks before the season began, a stunning trade brought the league's most popular star to the city's basket- ball team, prompting a dramatic increase in the demand for tickets. A few days later, the advertising agency, which had already scheduled in a number of clients to attend games in its skybox, received a notice from the leasing company stating that management had not approved the agency's lease of the skybox for this season. In a separate announcement to all area businesses, the leasing company announced that all available skyboxes would be leased for three- or five-year terms, and that an auction of the leases would be conducted if the demand exceeded the supply. The advertising agency decided that it was not financially feasible to commit itself to anything longer than a one-year lease. It sent a letter to the leasing company, stating that a contract was created between the parties and that the leasing company will be in breach if it does not perform. Is the advertising agency correct in its assertions?
Yes, because the leasing company's failure to reject the advertising agency's offer within a reasonable time constituted an acceptance under the circumstances.
The plaintiff sued the defendant for injuries suffered when the defendant's car struck the plaintiff as she was crossing a busy intersection. The plaintiff planned to have a bystander who had witnessed the accident testify on her behalf, but he died prior to trial. At trial, the plaintiff called the wife of the bystander to testify that, although she had been facing the other way, she had heard her husband exclaim, "My God, the woman was crossing on the green light!" Over objection, the statement was admitted as an excited utterance. The defendant now wishes to call the bystander's friend, who is prepared to testify that, a few hours after the accident, the bystander said to him: "You know that accident I saw this afternoon? The driver didn't run a red light. The light was yellow." Should the friend's testimony be admitted over the plaintiff's objection?
Yes, but only to challenge the credibility of the bystander's earlier inconsistent statement.
The owner of a shopping center entered into a two-year lease with a tenant who was opening a greeting card shop. When the lease still had 14 months left to run, the tenant decided to sell his business and inventory to a successor. When the tenant told the mall owner that he planned to assign his lease to the successor, the mall owner objected, citing a clause in the lease requiring consent to any assignment and providing that any attempted assignment without consent is grounds for terminating the lease. The tenant assigned the lease to the successor anyway. The successor operated the card store in the same manner as the tenant, the only difference being a change of the store's name. Does the mall owner have any recourse against the tenant or the successor?
Yes, he may evict the successor and collect damages from the tenant because nonassignment clauses are valid and enforceable.
