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Part I: Who’s Suing Whom For What on What Theory (Remedies)

Case Chart
(CC)..................................................................................................................
02

Case
Briefs.................................................................................................................
..............
Butler v. Wolf
Sussman...........................................................................................................
08
Duke of Somerset v.
Cookson ................................................................................................10
Butler v. Frontier Telephone
Co. ..........................................................................................12
Hadley v.
Baxendale..........................................................................................................
....14
Krauss v.
Greenbarg ........................................................................................................
....16
Virginia Railway v.
Armentrout............................................................................................18
In Re Polemis and Furness, Wilthy &
Co. ..........................................................................20
Christianson v. Chicago St. Paul, Minneapolis & Omaha
Railway....................................22
Hill v.
Winsor...............................................................................................................
.........23
Palsgraf v. Long Island
Railroad.........................................................................................24
Overseas Tankship Ltd. v. Morts Dock & Engineering (Wagon Mound
1)........................CC
Overseas Tankship Ltd. v. Miller Steamship Co. (Wagon Mound
2)..................................CC
Mauney v. Gulf
Refining .....................................................................................................25
Sanford v. Boston Edison
Co. .............................................................................................26
Wheelock v.
Noonan............................................................................................................2
8
Campbell v.
Seaman............................................................................................................
30
 2/107

Spur Industries, Inc. v. Del. E. Webb Development

Co. .....................................................32
Boomer v. Atlantic Cement
Co. .........................................................................................CC

Case SoC
Butler v. Wolf Sussman Action by a married woman with
- 2 counts of Replevin superior possessory rights of a ring
- Conversion against a licensed pawnbroker, for
replevin and conversion of the diamond - D’s actions to establish title in himself
ring pledged by the wife’s husband to
the pawnbroker without the wife’s
consent.
- A spouse can’t claim or dispose of an
Duke of Somerset v. Cookson The owner, who claims title to an a
- Equity unique altarpiece through treasure
trove, brings this case in equity against
a goldsmith for return of the altarpiece
undefaced.
Butler v. Frontier Telephone Co. A property owner filed an action of
- Ejectment ejectment against the Frontier
Telephone Co., seeking damages and
recovery of space for stringing a wire
across his property.
Hadley v. Baxendale Patrons, who owned and operated a
- Breach of Contract (because of the mill, brought an action for breach of
relationship) contract and negligence against a
- Negligence common carrier of goods, seeking
consequential damages and loss profits
for the delay in delivery of a broken
crank shaft of a steam engine to a repair and arise naturally from breach
company while mill was stopped.
3/107
Holding/Rule
The court held that by claiming a title to
the ring, the appellee waived necessity
for a demand.
(ie: filed delivery bond, contested suit
on the merits. claimed protection under
the married woman’s act) showed he
would not have complied with demand
item w/o the permission of the other
spouse if the other is the rightful owner.
The court held that a bill of equity can
be used to recover property if no other
legal remedy would adequately
compensate the rightful owner and
where the return of the property in its
unaltered form is essential.
- Only the intrinsic value of the item
can be recovered in trover, but the item
is has value far beyond that which is
intrinsic and detinue will not prevent
the possessor from defacing the item
and thus lowering its value.
- Other causes of action would not have
compensated the owner for what was
actually important to him.
The court held that an ejectment lies
because the owner was deprived of land
which includes the surface and the
space above.
- The ability of the sheriff to deliver
possession is a test of the right to
maintain an action of ejectment.
- You have to include the space above
the surface of the land to ensure that the
property owner will have complete
enjoyment of their land.
The court held that the defendant is only
liable for damages that were reasonably
(communication of special
circumstances & in the contemplation
of the parties at the time of execution of
the contract) at the time of the contract
- Limit damages: damages can’t be too
remote
- Protect commerce
- Encourage bargain contract

Case
Krauss v. Greenbarg
- Breach of contract
Virginia Railway v. Armentrout
- Tort (Negligence)
SoC
Action brought by a seller of webbing
against a buyer to recover the unpaid
price of the webbing delivered to the
buyer. Buyer files counterclaim for
breach of contract against seller to
recover consequential damages for
delayed delivery resulting in the
webbing buyer’s violation of a
Government Contract.
Guardian bought a negligence action on One cannot be liable for injuries caused
behalf of his “intellegent” infant son
against a railroad company to recover
damages for injuries sustained by the
infant when struck by the railroad
company’s train allegedly due to failure incompetency which rendered the child
to adhere to Virginia Statute requiring
warning signals to be given at within so would have rendered it unable to
many feet of a crossing.
4/107
Holding/Rule
Court applied the Hadley Test, adding a
causation element
- Special damages for breach of a
contract are not recoverable unless they
arise naturally from the breach or are
within the contemplation of the parties,
at the time the contract was made, as the
probable result of the breach
(foreseeability).
- For something which is a cause in fact
to be a legal cause, it must be a
substantial factor in causing the harm.
- A party to contract cannot cover
damages which he could have avoided
by reasonable means. The very essence
of the promise of a contract to deliver
articles is ability to procure or make
them. Delay resulting from the absence
of such ability is not the same kind
enumerated in the contract, not a cause
extraneous to it, and independent of the
engagements and exertions of the
parties.
by negligent act when that act is not the
proximate cause of the injury.
- The child could not be guilty of
contributory negligence. The
incapable of contributory negligence
understand the statutory signals if they
had been given.
- Parents should be responsible for their
children.
- Virginia Statute (p.117): meant to
protect cattle. To use this statute it must
be that the purpose of the law was
meant to protect against the harm in the
instant case and if the plaintiff is in the
class of persons meant to be protected.

Case
In Re Polemis and Furness,
Wilthy & Co.
- Tort (Ct. made decision based on
negligence): Can’t be said the damages
flowed from the breach of K or that the
damages were foreseeable at the time of
contracting.
- Has been rejected, but never
overturned
- Is it still good law? My guess is no.
Christianson v. Chicago St.
Paul, Minneapolis & Omaha
Railway
- Tort (Negligence)
Hill v. Winsor
- Tort (Negligence)
Palsgraf v. Long Island Railroad
- Tort (Negligence)
SoC
The shipowners of a Greek steamship
brought a negligence claim against the
charterers to recover damages for the
total loss of the steamship by fire
caused by the negligence of the
charterers’ agent in allowing a board to
fall into the lower hold.
A railroad employee brought an action
against his employer, a railroad
company, to recover damages for
personal injuries caused by the alleged
negligence of defendant railroad
company’s servants.
The victim, a bridge worker, brought an
action in tort against the owners of a
steam-tug to recover damages for
personal injuries sustained by the
victim, through the alleged negligence
of those in charge of the tug in causing
her to strike violently against the fender
of a bridge.
The victim, a bystander on a platform,
brought a negligence action against the
railroad company to recover damages
for injuries sustained from scales falling consequences, except where they result
from the platform during an explosion
that followed the dropping of an
indiscreet package due to negligence of
the railroad company’s guards in trying - Adds the “zone of danger” limitation
to help a man on the moving train to
prevent him from falling.
5/107
Holding/Rule
All that matters is that some damage
was the reasonably foreseeable
consequence.
- The expected peril does not prevent
the defendant from acting carefully, and
he is liable for damages directly flowing
from his breach of his obligation to act
carefully, though the breach acts
through the medium of an expected
peril (ie: the exception of fire)
- If the reasonable person would not
foresee that the act would cause some
damage, the act is not negligent; but if
the act would or might probably cause
damage, the fact that the damage it
causes is not the exact kind of damage
one would expect is immaterial, so long
as the damage is directly traceable to
the negligent act.
Negligent party is responsible for all of
the natural and proximate consequences
of the negligence whether or not they
are foreseeable- anything that flows in
an unbroken sequence form the original
negligent act.
Consequences of negligent act need not
be foreseen by defendant. It’s enough
that the injury is the natural and
probable consequence of negligence. It
is not necessary that injury in the
precise form should have been foreseen.
Where there is an act that unreasonably
threatens the safety of others the doer is
liable for all its proximate
in injury to one who falls outside the
radius of danger (ie: P has no duty to
someone outside the zone of danger).
to duty
- The question of liability is always
anterior to the question of the measure
of consequences that go with liability.
Because danger to the victim was not
apparent in the guards’ actions it was
not negligence on her part. Also
because the victim’s claim is for
negligence resulting in bodily injury
while the foreseeable consequences of
negligence was property damage of
another passenger, it is futile to build
the victim’s right upon the basis of a
right to someone else.

Case
Overseas Tankship Ltd. v. Morts
Dock & Engineering (Wagon
Mound 1)
- Tort (Negligence)
- Policy driven decision (?)
Overseas Tankship Ltd. v. Miller
Steamship Co. (Wagon Mound
2)
- Tort (Negligence)
Mauney v. Gulf Refining
- Tort (Negligence)
6/107
SoC Holding/Rule
Wharf owner sued tank owner to A man must be considered to be
recover damages for the destruction to responsible for the probable
his property and the equipment on it consequences of his act. To demand
due to a fire caused by the charterers’ more of him is too harsh a rule, to
negligence in carelessly allowing a demand less is to ignore that civilized
large quantity of oil to spill in the bay order requires the observance of a
& making no attempt to disperse the oil minimum standard of behavior.
before unberthing. (Effectually overturns Polemis w/o
actually overturning.)
- Double foreseeability test: (1)Is the
risk in general foreseeable? (2)Were the
specific damages foreseeable?
- Mess around dock was foreseeable,
but the fire was not.
- Chain of foreseeability stops when
there is an intervening act (welding)
- Directly traceable is not the test
according to this court
2 steamships sue the tanker for money There is liability if the damage is
damages when the ships were destroyed foreseeable as a real risk occurring in
in the fire the mind of a reasonable man
- No double foreseeability
- No contributory negligence, but can
argue foreseeability
The victim brought action by In order that a person who does a
attachment of chancery against an oil particular act which results in injury to
company to recover damages for another shall be liable therefor, the act
personal injuries sustained when victim must be of such character, and done in
fell over a misplaced chair while trying such a situation, that the person doing it
to save herself and her child from a fire should reasonably have anticipated that
allegedly due to the negligence of the some injury to another will probably
oil company’s agent, contending that result therefrom; but the actor is not
the fire was the proximate cause of her bound to a prevision or anticipation
miscarriage. which would include an unusual,
improbable, or extraordinary occurrence
although such happening is within the
range of possibilities.
- Causal chain of events between
negligence and injury cannot be broken
(here, chain broken by her tripping over
her own chair)
- Differs from Polemis: brings back
foreseeability of the individual harm-
something remote is not in the circle
- Do not look at the harm first and then
go back and find the cause; has to be
foreseeable before the act.
 7/107

Case SoC Holding/Rule

Sanford v. Boston Edison Co.
- Equitable relief (Injunction/specific
performance)
- Policy Driven decision
A labor union filed an action against a
company for breach of contract,
seeking an injunction against the
employer to prevent him from refusing
to recognize the assignments of the
contract, for specific performance of
the contract, and for an execution for
the amount due.
- Damages are not adequate if full
compensation resulting harm will
involve the P in multiple litigation,
either with several different parties or in
the form of repeated actions against the
D.
- Anti-injunction statute: An injunction
is preventive relief not affirmative
relief; therefore, the statute doesn’t
apply. (Specific performance is
affirmative, not injunctive relief)

Wheelock v. Noonan The owner of a certain lot brought suit
- Injunction against a stranger whom he’d given
license to use his property for trespass,
seeking an injunction.
While ordinarily courts of equity will
not wield their power merely to redress
a trespass, yet they will interfere under
peculiar circumstances, and have often
done so where the trespass was a
continuing one, and a multiplicity of
suits at law was involved in the legal
remedy. In cases of intrusion where no
consent had been given for the entry of
the intruder, but whether the trespass
was such from the beginning, or became
one after a revocation of the license, can
make no difference as it respects the
adequacy of the legal remedy. A court
of equity will act in such cases only
after the plaintiff’s right has been
established at law.

Campbell v. Seaman The owner of land improved by
- Injunction planting trees and shrubs brought an
action against a neighboring brick
manufacturer to recover damages for
nuisance and an injunction restraining
defendant from burning brick, alleging
that gas from kiln that escaped during
the process of brick manufacturing
killed and destroyed valuable pine and
spruce trees and injured their grape
vines and plum trees.
- Every person is bound to make
reasonable use of his property so as not
to unnecessarily damage or annoy his
neighbor. If he make unreasonable use
of his land so as to produce material
annoyance, inconvenience, discomfort,
or hurt to his neighbor. he will be guilty
of a nuisance to his neighbor and the
law will hold him responsible for the
consequent damage.
- Where the damage to one complaining
of a nuisance is small or trifling, and the
damage to the one causing the nuisance
will be large in case he be restrained,
the courts will sometimes deny an
injunction.
 8/107

Case SoC Holding/Rule

Spur Industries, Inc. v. Del. E.
Webb Development Co.
- Injunction
A development company sued a The operation of a business that
neighboring feeding operation to enjoin becomes a nuisance by reason of a
the feeding operation from operating a nearby residential area may be enjoined,
cattle feedlot near the developing town, but the party seeking the injunction
alleging that the feeding operation was must indemnify the defendant for a
a public nuisance because of the flies reasonable cost of moving or shutting
and the odor which were drifting or down.
being blown by the prevailing south to - Having shown a special injury in the
north wind over the southern portion of loss of sales the development company
the company’s new development. has a standing to bring suit to enjoin the
nuisance.
- It does not seem harsh to require a
developer, who has taken advantage of
the lesser land values in a rural area as
well as the availability of large tracts of
land on which to build and develop a
new town or city in the area, to
indemnify those who are forced to leave
as a result.

Boomer v. Atlantic Cement Co.
- Injunction
- Policy driven: protecting the cement
plants.
Land owners sue a neighboring cement
plant operator for injunction and
damages, alleging injury to property
from dirt, smoke and vibration
emanating from the plant.
Where a nuisance has been found and
where there has been any substantial
damage shown by the party
complaining an injunction will be
granted. Such a nuisance will be
enjoined although marked disparity be
shown in economic consequence
between the effect of the injunction and
the effect of the injunction and the
effect of the nuisance. However, to
follow the rule literally in this case
would be to close down the plant at
once. To avoid that immediately drastic
remedy, it seems fair to both sides to
grant permanent damages to plaintiffs.
 9/107

Citation: Butler v. Wolf Sussman, Inc., 221 Ind. 47, 46 N.E.2d 243 (Ind. 1943).
Statement of the Case: Action by a married woman with superior possessory rights of a
ring against a licensed pawnbroker, for replevin and conversion of the diamond ring pledged by
the wife’s husband to the pawnbroker without the wife’s consent.
Procedure: Plaintiff filed complaint on 2 counts of replevin and 1 count of conversion.
Defendant answered in general denial. Plaintiff waived entitlement to judgment on the pleadings
and went to trial. Trial court entered judgment for the pawnshop. Plaintiff moved for a new trial.
Trial court denied motion. Ring owner appeals the denial of the motion for new trial.
Statement of Facts: The wife inherited said ring from her mother. She is currently married
though she and her husband are separated and she does not know his whereabouts. The wife
missed the ring while packing at the time of the separation. She demanded that her it from her
husband who produced and delivered to her a ticket disclosing that he had pawned the ring as his
own approximately a year and two months before the separation to a licensed pawnbroker
without the prior knowledge of the appellant.
Issue: Did the trial court err in denying the motion for a new trial and denying the wife
repossession of her property given that the pawnshop waived necessity for demand by filing
redelivery bond, by contesting the suit on its merits, and by claiming protection of the
Pawnbrokers Act, and given that a married woman is authorized to hold property as if she were
unmarried?
Result on Appeal: Reversed
Holding: Yes, the trial court erred in denying the motion for a new trial and denying the wife
repossession of her property given that the pawnshop waived necessity for demand by filing
redelivery bond, by contesting the suit on its merits, and by claiming protection of the
Pawnbrokers Act, and given that a married woman is authorized to hold property as if she were
unmarried.
Doctrinal Reasons:
• A waiver may result from the character of defense made to the action... Any affirmative
action on the part of the defendant calculated to establish title in himself, whether by pleading or
proof ought to waive a demand. D’s actions to establish title in himself showed that he would not
have complied with a demand.
• Pawnbrokers do not have a lien a first lien on articles where the pledge or possession thereof
by the pledger constituted larceny at common law
Policy Reasons:
• Establishing rights for married women: A married woman has been authorized to take,
acquire, and hold personal property...
• Constitutional considerations: No person shall be deprived of property without due process of
law.
Additional Points: (Dicta) Court found that Section 32 of the Pawnbroker’s Act of 1935
violated the due process provisions of the State and Federal Constitutions. (Dicta) A married
woman may have property interests and if so those interests cannot be taken away without due
process of law.

Class Notes
Constitutionality of Statute
- Courts don’t like to judge constitutionality of statutes because it’s antidemocratic. The more
constitutionalism there is, the less democracy there might be.
 10/107

- Court determines that section 32 of the act violates due process of state and federal
constitutions and is therefore unconstitutional as applied because the defendant had a vested
interest in the property for which she could not be deprived without due process
- Due Process: Substantive, Procedural.
- Pawnbrokers Act retroactively changed the vested interest in Property. --> Butler had a
vested interest in the property before the pawnbroker’s act was passed.
- After finding this, why not just enter final judgment instead of remanding the case? -->
Not enough evidence to prove the factual basis of the case.
- Standard of finding a statute unconstitutional
- On its face
- As applied
- The court found that the statute was unconstitutional as applied in the present case
 11/107

Case name & citation: Duke of Somerset v. Cookson, 24 Eng. Rep. 1114 (1735)
Statement of the case: The owner of an old and unique altar piece brought a bill in equity
against the possessor of the altar piece, a goldsmith, for the delivery of the altar piece, undefaced.
Procedure: The owner brought a bill in equity. The possessor demurred.
Statement of facts: The owner came into possession of an old alter piece made of silver,
remarkable for a Greek inscription and dedication to Hercules by way of treasure trove. The
owner’s altar piece was taken and sold to the possessor, a goldsmith, who had notice of the
owner’s claim to the piece.
Issues: Did the trial court err in granting demurrer where party bought a case in equity to
recover personal property in the possession of another and where there is an adequate remedy at
law by action of trover or detinue for the return of an old alter piece made of silver, remarkable
for a Greek inscription and dedication to Hercules?
Result: Demurrer overruled
Holding: (Narrow) Yes, the trial court err in granting demurrer where party bought a case in
equity to recover personal property in the possession of another where there an adequate remedy
at law by action of trover or detinue for the return of an old alter piece made of silver,
remarkable for a Greek inscription and dedication to Hercules.
(Broad) A bill of equity can be used to recover property if no other legal remedy would
adequately compensate the rightful owner and where the return of the property in its unaltered
form is essential.
Doctrinal rationale: Only the intrinsic value of the item can be recovered in trover, but the
item is has value far beyond that which is intrinsic and detinue will not prevent the possessor
from defacing the item and thus lowering its value.
Policy rationale: Other causes of action would not have compensated the owner for what was
actually important to him.

Class Notes
Defendant
- legal remedies and these remedies are adequate
- trover: gives only money damages
- replevin (why is this not mentioned): We don’t know if the person who took the item
didn’t have a better claim to it as the items true owner
- detinue:
- item might be defaced before it is returned
- pay damages or return it
- must prove that item was unlawfully detained
- “Flood gates” argument --> horrible things will happen if the ct. rules a certain way

When is equitable remedy suitable?

- Limitation of means: you’re not always going to get what you want.
- Factors: (1)Subjective vs. Objective value (Subjective: sentimental attachment & Objective:
one of a kind item.); (2)Likelihood of return; (3) one of a kind item can’t be compensated for
fully in monetary damages; (4)Likelihood that the item will be defaced
- Equitable remedy: (1)force ppl to do things otherwise be held in contempt; (2)justice (ideal
result vs. limitation of means); (3)injunctive relief; (4)overseeing enforcement
- Reluctancy to get into equity: (1)oversight; (2)questions of legitimacy
 12/107

Case name & citation: Butler v. The Frontier Tele. Co., 186 N.Y. 486, 79 N.E. 716 (N.Y.
1906).
Statement of the case: The owner in fee of the premises in question commenced an action
of ejectment against telephone company to recover damages for removal of the wire for
wrongfully dispossessing the owner of her property.
Procedure: The trial court entered judgment for the owner of the premises and awarded
damages in the amount of six cents. The telephone company appealed. The appellate court
affirmed the lower courts decision by a divided vote. The telephone company appeals.
Statement of facts: From January 1st to January 10th the telephone company entered the
owner’s premises without the consent of the owner and without lawful authority and stretched a
wire over and across the premises. Telephone Company took wire down after action was
commenced. The owner was in possession of the premises at all times mentioned and since,
except the part that was occupied by the telephone company during the period specified. There
was no allegation or evidence that the wire was supported by any structure standing in the
owner’s lot. Telephone company removed wire after the complaint was filed, but before trial.
Issues: Was the trial court correct in entering judgment for the owner of the premises in an
action for ejectment thereby holding that ejectment will lie when the soil is not touched, but part
of the space a few feet above the soil is occupied by a telephone wire unlawfully strung by the
telephone company across the owner’s premises and that the owner was deprived of possession
to the extent necessary to authorize ejectment?
Result on appeal: Affirmed.
Holding:
Broad: An ejectment lies because the owner was deprived of land which includes the
surface and the space above.
Narrow: Yes, the trial court correct in entering judgment for the owner of the premises in
an action for ejectment thereby holding that ejectment will lie when the soil is not touched,
but part of the space a few feet above the soil is occupied by a telephone wire unlawfully
strung by the telephone company across the owner’s premises and that the owner was
deprived of possession to the extent necessary to authorize ejectment.
Doctrinal rationale: The ability of the sheriff to deliver possession is a test of the right to
maintain an action of ejectment.
Policy rationale: You have to include the space above the surface of the land to ensure that
the property owner will have complete enjoyment of their land.

Class Notes
Question: Who owns the air space and how can they use it?
- use of airspace for telephone wires
- This case set the tone for airspace ownership.

Trespass is an invasion in the possessory interest of someone else’s property (Trespass vs.
ejectment). NOTE: all trespasses don’t give rise to an ejectment action.
- requires re-filing

Nuisance: interference with the use and enjoyment of one’s property interest
- public
- private
 13/107

- Nuisance vs. trespass

- Continuing trespass may become a nuisance
- There must be and interference with the person’s use and enjoyment (personally) for
nuisance

Which is preferred nuisance, trespass, ejectment?

 14/107

Case name & citation: Hadley v. Baxendale, 156 Eng. Rep. 145 (Ex. 1854).
Statement of the case: The patron sued the common carriers of goods and chattels for hire
to recover damages for the breach of contract and/or negligence.
Procedure: The patron filed a complaint claiming breach of contracts and negligence. The
common carriers pleaded non assumpserunt to the breach of contract claim. The patron entered a
nolle prosequi as to the breach of contract claim. The trial court entered judgment and awarded
the jury verdict of 25l. damages beyond the amount to be paid into court. The carriers moved for
a new trial, contesting the jury instructions. The appellate court found instructions to be adequate
and affirmed the jury award. The carriers appealed.
Statement of facts: Patron’s shaft broke and he hired the carriers of goods and chattels to
deliver the broken shaft to the company that would repair it within two days or in a reasonable
time. The carriers negligently did not deliver the broken shaft until a week later, causing the
delivery of the repaired shaft to be delayed at the profit loss of the patron. The patron filed suit.
The only circumstances communicated by the patrons to the carriers at the time the contract was
made were that the said article to be delivered was the broken crank shaft of a mill and that said
patrons were the millers of that mill.
Issues:
(1) Did the ct. err in giving the jury general directions, allowing jury to determine whether the
common carriers knew the purpose of sending the shaft and that its nondelivery would stop the
operation of the mill?
(2) Did the ct. err in failing to instruct the jury not to use lost profits when estimating damages?
Result on appeal: Reversed and remanded.
Holding:
(1) Yes, the ct. erred in giving the jury general directions, allowing jury to determine whether the
common carriers knew the purpose of sending the shaft and that its nondelivery would stop the
operation of the mill.
(2) Yes, the ct. erred in failing to instruct the jury not to use lost profits when estimating
damages.
Doctrinal rationale: Where two parties have made a contract which one of them had broken,
the damages which the other party ought to receive with respect of such breach of contract
should be such as would fairly and reasonably be considered either arising naturally according to
the usual course of the breach of contract itself, or such as may reasonably be supposed to have
been in the contemplation of both parties, at the time they made the contract as the probable
result of the breach of it.
Policy rationale: (1)Protect Commerce; (2)Encourage bargain contract

Class Notes
Consignment: someone gives another common goods to carry to someone else

Made Damages a legal question rather than a question of fact: In drafting instructions for the jury
favorable to the plaintiff, one cannot assume that the common carriers knew or would have
reason to know that shaft was broken (?)

Foreseeability: even if the carriers did not know, if they could reasonably foresee, based on
special facts that certain damages will be incurred.
 15/107

- Even if P communicated the circumstances he said he had, one can argue that the defendant did
not agree to the consequences of the special circumstances, because if he did, he would have
charged more.
- Applying the rule through some sort of normative lens: Ppl are in equal bargaining positions
normatively in contracts.

Is this a torts case in which foreseeability should apply or is it a contract case in which
foreseeability applies?
 16/107

Case name & citation: Krauss v. Greenbarg, 137 F.2d 569 (3d Cir. 1943).
Statement of the case: Suppliers sued manufacturers to recover damages for the price of
goods delivered. Manufacturers counterclaimed to recover damages for breaching contract by
failing to deliver goods on schedule.
Procedure: Suppliers filed complaint against manufacturers. Manufacturers counterclaimed.
The jury at trial returned a verdict in favor for the manufacturer for the counterclaim. The
manufacturer agreed to The court entered judgment for the manufacturer and awarded damages.
Statement of facts: The manufacturer received an award and contract from the War
department of the U.S. to supply leggings. By memorandum of the same date the manufacturers
placed an order with the supplier for the webbing to be used in making leggings. The order
provided for certain quantities of webbing to be delivered at given dates. The supplier did not
maintain the scheduled deliveries of the webbing and as a result the manufacturer could not meet
its schedule with the Government.
Issues:
a. Did the trial court err in awarding special damages to the manufacturer and thereby holding
that at the time of making the contract the supplier knew that his breach of contract would
probably result in the kind of special damages claimed and thus could be said to have foreseen
them given that the suppliers contemplated the harm of contract breach to the manufacturer?
b. Applicable law (?)
c. Did the trial court err by instructing the jury that although there may have been other
contributing causes, if the “primary”... cause of the overall company’s delay was the supplier’s
failure to deliver on time, then the loss was chargeable to it?
d. Did the trial court err in holding that as a matter of law the cause of delay was not such as to
entitle the overall company to an extension of time and that therefore the failure to request an
extension of time was of no consequence?
Result on appeal: Affirmed
Holding:
a. No, the trial court did not err in awarding special damages to the manufacturer and thereby
holding that at the time of making the contract the supplier knew that his breach of contract
would probably result in the kind of special damages claimed and thus could be said to have
foreseen them given that the suppliers merely contemplated the harm of contract breach to the
manufacturer.
b. Applicable law.
c. No, the trial court did not err by instructing the jury that although there may have been other
contributing causes, if the “primary”... cause of the overall company’s delay was the supplier’s
failure to deliver on time, then the loss was chargeable to it.
d. No, the trial court did not err in holding that as a matter of law the cause of delay was not such
as to entitle the overall company to an extension of time and that therefore the failure to request
an extension of time was of no consequence.
Doctrinal rationale:
a. Special damages for breach of a contract are not recoverable unless they can fairly and
reasonably be considered as arising naturally from the breach or as being within the
contemplation of the parties, at the time the contract was made, as the probable result of the
breach.
b. Applicable law
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c. For something which is a cause in fact to be a legal cause, it shall have been a substantial
factor (ie: the fact that the defendant’s conduct has such an effect in producing the harm as to
lead reasonable men to regard it as cause) in bringing about the harm.
d. A party to contract cannot cover damages which he could have avoided by reasonable means.
The very essence of the promise of a contract to deliver articles is ability to procure or make
them. It would have no sense or incentive otherwise; and a delay resulting from the absence of
such ability is not the same kind enumerated in the contract- is not a cause extraneous to it and
independent of the engagements and exertions of the parties. The suppliers knew at the time of
contracting that the manufacturer’s contract with the government included a penalty clause
Policy rationale: There was a war going on at the time of the contract. The manufacturer’s
contract was to provide leggings for the soldiers. The special circumstances surrounding such a
contract should be commonly known to the suppliers.

Class Notes:
Issues
- Cause in fact
- Sole (highest std), primary (intermediate std), or substantial factor (lowest std) in the
injury
- Defendant asked for primary cause test
- Ct held: should apply substantial factor test
- Extension clause: Why not req. the manufacturer to ask the Gov. for ext.?
- Foreseeability
- Questions:
- Is what happened what generally happens in the usual course of events
- Is what happened a special circumstance
- Supplier’s argument:
- It is the responsibility of the non-breaching party to mitigate damages;
Manufacturer should have tried to mitigate
- Even if I knew about it I have to agree to be responsible for the damages
- Court held:
- Part of the question is whether or not supplier could foresee that manufacturer
could not mitigate his damages; however, supplier didn’t ask for this instruction
at trial and made assurances to the manufacturer.
- All a person has to do is understand the consequences; not agree to the
consequences to be held liable for damages from breach
- Is it enough to tell someone about a special circumstance or is it necessary to explain
the amount of damages at stake.
Rule: Applies Hadley
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Case name & citation: Virginia Railway v. Armentrout, 158 F.2d 358 (4th Cir. 1946).
Statement of the case: Guardian bought a negligence action on behalf of his infant son
against a railroad company for injuries sustained by the infant when struck by the railroad
company’s train alleging that failing to sound the whistle and the failure of the engineer to stop
the train after he saw the infant on the track caused the infant’s injuries.
Procedure: Two issues of negligence were submitted to the jury: (1)that the engineer failed to
give adequate warning of the approach of the engine and (2)that he failed to keep an adequate
lookout to save the child from injury after his presence on the track was observed and there was
still time to stop. In the first trial, the jury was hung. In the second trial, the jury returned a
verdict for the guardian in the sum of $100,000. The trial court entered judgment for the guardian
and awarded damages. The railroad company appeals.
Statement of facts: A 13 month old baby strayed from his parent’s house, located on a hill
above the railroad track by the side of a public road, undetected, to a railroad track 289 feet
away. When next the baby was seen, he was in a crawling position on the track or near the
crossing. There he was run over by a passing engine, losing his left arm above the elbow and his
right arm above the wrist. The infant was a very intelligent child. The engineer was familiar with
the crossing. A number of witnesses testified that no signals of any kind were given. All the
witnesses agreed that the engine made a loud noise as it approached, which could be heard a long
way off.
Issues:
(1) Did the trial judge err in charging the jury that the defendant was liable if the jury should find
that the engineer failed to give the warning signals required by law, and should further find that
this failure was the cause of the accident?
(2) Was the trial court correct in submitting for the jury’s determination whether the engineer
was negligent in his failure to stop the train after he saw the infant?
(3) Did the trial court err in rejecting the defendant’s request to instruct the jury that on the
question whether the engineer should have seen the infant on the track in time to have stopped
the engine before striking him the test is not whether it was possible to stop the engine before
striking the infant after it was possible to see him on the track, but whether the engineer used
reasonable and ordinary care under the operating condition then and there existing, to discover
the infant on the track and stop the engine before striking him, and in calling the jury’s attention
to the fact that the engine concerned in this case had been in operation until a few weeks before
the trial and yet the defendant had made no test as to the engineer’s ability to stop the engine
when running at certain speeds?
Result on appeal: Reversed and Remanded
Holding:
(1) Yes, the trial judge erred in charging the jury that the defendant was liable if the jury should
find that the engineer failed to give the warning signals required by law, and should further find
that this failure was the cause of the accident.
(2) Yes, the trial court was correct in submitting for the jury’s determination whether the
engineer was negligent in his failure to stop the train after he saw the infant.
(3) Yes, the trial court erred in rejecting the defendant’s request to instruct the jury that on the
question whether the engineer should have seen the infant on the track in time to have stopped
the engine before striking him the test is not whether it was possible to stop the engine before
striking the infant after it was possible to see him on the track, but whether the engineer used
reasonable and ordinary care under the operating condition then and there existing, to discover
 19/107

the infant on the track and stop the engine before striking him, and in calling the jury’s attention
to the fact that the engine concerned in this case had been in operation until a few weeks before
the trial and yet the defendant had made no test as to the engineer’s ability to stop the engine
when running at certain speeds.
Doctrinal rationale:
(1) The child could not be guilty of contributory negligence. The incompetency which rendered
the child incapable of contributory negligence would have rendered it unable to understand the
statutory signals if they had been given. (Proximate Cause)
(2) N/A
(3) The jury may have been misled because they were told that they could infer that the test was
not made because the results would have been unfavorable to the defendant. Furthermore, the
judge failed to comment on the absence of the element of emergency from a test staged after the
event.
Policy rationale: Parents should be responsible for their children.
Additional Points: (Dicta) There may be recovery if the liability of the railroad company is
established on retrial based on the 2nd negligence issue (failure of the engineer to stop the train
after he saw the child), but there can be no recovery on the failure to sound the whistle since it
was not the proximate cause.
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Case name & citation: In Re Polemus and Furness, Withy & Co., Court of Appeal [1921] 3
K.B. 560.
Statement of the case: The shipowners of a Greek steamship brought a negligence claim
against the charterers to recover damages for the total loss of the steamship by fire.
Procedure: The shipowners filed their complaint. The arbitrators awarded that the owners
were entitled to recover 196,165l., the full value of the ship. The court affirmed the award. The
charterers appealed.
Statement of facts: The shipowners chartered the steamship to the charterers. The cargo in
the No. 1 hold of the ship consisted of considerable quantity of cases of benzine or petrol that
had begun to leak. Thus, a considerable of petrol vapor was in the hold. In the process of shifting
cases of benzine from the lower hold to the upper decks one of the boards fell into the lower hold
and the fall was instantaneously followed by a rush of flames from the lower hold, and this
resulted in the total destruction of the ship. The arbitrators found that the fall of the board was
caused by the negligence of the charterers’ agents engaged in the work of discharging. Clause 5
provided that the ship was to be returned to the owners in same good order and condition as
when delivered fair wear and tear excepted. Clause 21 of the contract between the shipowner and
the charterers supplies that the loss or damage from fire on board in hulk or craft, or on shore are
always mutually excepted.
Issues:
(1) Was the trial court correct in awarding damages to the shipowner, holding that the charterers
were not protected by an exception of fire which in the charter is mutually accepted?
(2) Was the trial court correct in awarding damages to the shipowner, holding that the actual
damages is not too remote to be the subject of a claim even though it found that it could not be
reasonably anticipated that the falling of the board would make a spark?
Result on appeal: Affirmed.
Holding:
(1) Yes, the trial court was correct in awarding damages to the shipowner, holding that the
charterers were not protected by an exception of fire which in the charter is mutually accepted.
(2) Yes, the trial court was correct in awarding damages to the shipowner, holding that the
actual damages is not too remote to be the subject of a claim even though it found that it could
not be reasonably anticipated that the falling of the board would make a spark.
Doctrinal rationale:
(1) The expected peril does not prevent the defendant from acting carefully, and he is liable for
damages directly flowing from his breach of his obligation to act carefully, though the breach
acts through the medium of an expected peril (ie: the exception of fire)
(2) If the reasonable person would not foresee that the act would cause damage, the act is not
negligent; but if the act would or might probably cause damage, the fact that the damage it
causes is not the exact kind of damage one would expect is immaterial, so long as the damage is
directly traceable to the negligent act.
Policy rationale: The Court will not let people contract out of liability for negligence.
Additional Points: Plaintiffs sue under contract; defendants argue for Hadley rule (damages
are too remote to be liable).
Class Notes
Charterer’s argument: Charterers are not liable for the type of damage which could not
reasonably have been anticipated. ---> Foreseeability
 21/107

- In an action for negligence the measure of damage is the same as in an action for breach of
contract
- Proximate Cause: Damages must be such as can be reasonably be anticipated as the result of
the negligent act. In other words they must be the natural and probable consequences of the act.
- Extent of damage vs. Type of damage.
Ship-owner’s argument: If the act is negligent, all damage that directly flows from it is
recoverable.
Hadley vs. Polemis
- Polemis is taught as tort, but could be contract. Hadley is taught as contract, but could be tort.
Why is this?
- Damages not foreseeable in Hadley, but are damages foreseeable in Polemis? Were damages
really not foreseeable in Hadley?
- Could you argue that the rule in Polemis is for both contracts and negligence?
- Contracts: self-imposed duty; Tort: law imposes duty (?)
- Considerations
- naturally arising
- foreseeability
- special circumstances communicated
- What is the breach of contract in Polemis?
- Failure to return the ship (?)
- Dropping the board that started the fire (?)
- Whether you call something a tort or a contract does affect the damages ruling.
2 views of foreseeability
- Foreseeable that some harm results from negligent act; negligent party is responsible for all the
harm that occurs.
- Foreseeable that the breach of the contract will lead to the result which occurred
 22/107

Case name & citation: Christianson v. Chicago, 67 Minn. 94, 69 N.W. 640 (1896).
Statement of the case: An employee brought an action against his employer, a railroad
company, to recover damages for personal injuries caused by the alleged negligence of
defendant’s servants.
Procedure: District court denied the employer’s motion for a new trial.
Statement of facts: Two hand cars travelled westerly. The front car on which the employee
rode, was of old style, not capable of as great speed as the rear. The employee was standing on
the rear end of the car with nothing to hold on to but handles that were attached to the lever and
moved so rapidly that it was difficult for one standing on the car to hold on to them. The usual
distance at which hand cars kept apart was 540 feet. At the speed at which the rear car was
going, it would not have been able to stop in less than 100 feet. The cars travelled like this until
the rear car got within 60 feet of the one in front of it. At this point when the employee looked
back he became dizzy, lost his balance and fell off. The rear car collided with the employee
inflicting very severe injuries.
Issues: Was the trial court correct in denying the employer’s motion for a new trial...
Result on appeal: Affirmed.
Holding: Yes, the trial court was correct in denying the employer’s motion for a new trial...
Doctrinal rationale: If the act is one which the party ought, in exercise of ordinary care, to
have anticipated was liable to result in injury to others, then he is liable for any injury
proximately resulting from it, although he could not have anticipated the particular injury which
did happen.

Class Notes
D’s Argument: Not foreseeable that P would fall off of the car and get run over.
Ct rejected D’s Argument because they used foreseeability of harm generally not whether the
specific harm was foreseeable to determine liability. Ct. agrees with Polemis.
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Case name & citation: Hill v. Winsor, 118 Mass. 251 (1875).
Statement of the case: The victim brought an action in tort against the owners of a steam-
tug to recover damages for personal injuries sustained by the victim, through the alleged
negligence of those in charge of the tug in causing her to strike violently against the fender of a
bridge.
Procedure: At trial, the jury found for the victim.
Statement of facts: Boat hit the bridge and the bridge worker was injured.
Issues: Was the trial court correct in entering the verdict of the jury, holding that the jury might
properly find it obviously probable that the injury in some form would be caused to those who
were at work on the fender by the act of the defendants in running against it?
Result on appeal: Affirmed
Holding: Yes, the trial court was correct in entering the verdict of the jury, holding that the jury
might properly find it obviously probable that the injury in some form would be caused to those
who were at work on the fender by the act of the defendants in running against it.
Doctrinal rationale: Consequences of negligent act need not be foreseen by defendant. It’s
enough that the injury is the natural and probable consequence of negligence. It is not necessary
that injury in the precise form should have been foreseen.
 24/107

Case name & citation: Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928).
Statement of the case: The victim sued the railroad company to recover damages for
injuries sustained during an explosion resulting from the negligence of the railroad company’s
guard.
Procedure: The trial court entered judgment for the victim. The appellate division of the
Supreme Court affirmed the trial court’s judgment for the victim. Defendant appeals.
Statement of facts: Two men ran to catch a stopped train. One hopped aboard while the
train was moving; the other, carrying a package, hopped aboard the moving train, but almost fell.
Two guards tried to help the man on the moving train to prevent him from falling. In this effort
the package fell. (It was a small package covered with newspaper.) The package contained
fireworks, but nothing in its appearance gave notice of its contents. The fireworks exploded
when they fell throwing down some scales at the other end of the platform several feet away. The
scales struck the victim causing the injuries for which she sues.
Issues: Did the appellate division err in affirming the district court’s judgment in the victim’s
favor, holding that the railroad company is responsible for the reasonably unforeseeable injuries
of the victim resulting from the negligence of the railroad company’s guard?
Result on appeal: Reversed and dismissed with costs in all courts.
Holding: Yes, the appellate division erred in affirming the district court’s judgment in the
victim’s favor, holding that the railroad company is responsible for the reasonably unforeseeable
injuries of the victim resulting from the negligence of the railroad company’s guard.
Doctrinal rationale: The question of liability is always anterior to the question of the
measure of consequences that go with liability. Because danger to the victim was not apparent in
the guards’ actions it was not negligence on her part. Also because the victim’s claim is for
negligence resulting in bodily injury while the foreseeable consequences of negligence was
property damage of another passenger, it is futile to build the victim’s right upon the basis of a
right to someone else.
Additional Points: (Dicta) Judge proposes no duty to unforeseeable P. “No such thing as
negligence in the air.”

(Dissent) Where there is an act that unreasonably threatens the safety of others the doer is liable
for all its proximate consequences, even where they result in injury to one who seems to fall
outside the radius of danger. Breach of a general ordinance defining the degree of care to be
exercised in one’s calling is evidence of negligence as to every one. This statement was not
limited to those who might be expected to be exposed to danger. Unreasonable risk being taken,
its consequences are not confined ti those who might probably be hurt.

Class Notes
- Cardozo: outside the zone of danger
- Andrews: any harm being foreseeable negligent party is responsible for the harm that occurs as
a direct result of the party’s negligent act.
- Question of allocating risk.
- Polemis is still seen as a torts case and not contract case
 25/107

Case name & citation: Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942).
Statement of the case: The victim brought action by attachment of chancery against an oil
company and others for personal injuries resulting from a fall, contending that the fire was the
proximate of her misfortune.
Procedure: After a full hearing the chancellor dismissed the bill.
Statement of facts: While the agent of the oil company was delivering gasoline to a filling
station a fire was suddenly started, which rapidly spread to the tank car and to the filling station
itself. People ran shouting fire loudly. When the victim heard these shouts and saw the fire, she
turned to get her child with the intention of fleeing from the cafe that she and her husband
operated. In her hurry to get to the child she fell over a misplaced chair and, subsequently,
suffered a miscarriage.
Issues: Was the chancellor correct in dismissing the victim’s bill, holding that the oil company
cannot be held to the liability of having been obliged to foresee that the victim in her preparation
or departure would run over a misplaced chair in her own place?
Result on appeal: Affirmed.
Holding: Yes, the chancellor was correct in dismissing the victim’s bill, holding that the oil
company cannot be held to the liability of having been obliged to foresee that the victim in her
preparation or departure would run over a misplaced chair in her own place.
Doctrinal rationale: In order that a person who does a particular act which results in injury to
another shall be liable therefor, the act must be of such character, and done in such a situation,
that the person doing it should reasonably have anticipated that some injury to another will
probably result therefrom; but the actor is not bound to a prevision or anticipation which would
include an unusual, improbable, or extraordinary occurrence although such happening is within
the range of possibilities.

Class Notes
Putting the cases together to create a rule that covers all these cases (?) Broad enough to cover all
cases and narrow enough not to cover too many cases.
 26/107

Case name: Sanford v. Boston Edison Co.

Statement of the case: A labor union filed an action against a company for breach of
contract, seeking an injunction against the employer to prevent him from refusing to recognize
the assignments of the contract, for specific performance of the contract, and for an execution for
the amount due.
Procedure: D demurred to the bill on the grounds that P did not state a cause of action and that
they have a plain, adequate, and complete remedy. T. Ct. sustained demurrer.
Statement of facts: P and D entered into a written contract which stipulated: “The company
will not by general rule or otherwise refuse to recognize assignments of wages when made in
accordance with provisions of Chapter 96 of the (Massachusetts) Acts of 1933.” Members of he
union have executed written assignments of a portion of their future wages to be deducted each
month for the payment of their dues to the union. The company deducted the amounts assigned
in accordance with the agreement and forwarded the deductions to the union, but later notified
the union that it would not recognize such assignments of wages for the payment of dues by the
members of the union, whose assignments contained written requests for the deduction of their
union dues from the wages from the wages of the respective assignors; and that it would not
deduct the amounts so assigned from said members’ checks and would not forward the aggregate
of such amounts to the union. The union had fully performed the contract on its part.
Issues: Did the court below err in sustaining demurrer of the plaintiff’s claim on the grounds
that the plaintiffs have not stated a cause of action and that they have a plain, adequate and
complete remedy at law?
Result on appeal: Reversed.
Holding: Yes, the court below erred in sustaining demurrer of the plaintiff’s claim on the
grounds that the plaintiffs have not stated a cause of action and that they have a plain, adequate
and complete remedy at law.
Doctrinal rationale: The union will suffer irreparable damage for which it has no plain,
complete and adequate remedy at law. Only by ordering specific performance can the court
secure to P the real benefit of their contract.

There is a growing tendency to give the promisee the actual performance for which he bargained
instead of a substitute and damages, where the damages are not the equivalent of the
performance. Specific performance will be granted where damages are an inadequate remedy
and the nature of the contract is such that specific enforcement of it will not involve too great
practical difficulties, equity will grant a decree of specific performance.

Damages are not adequate if full compensation resulting harm will involve the P in multiple
litigation, either with several different parties or in the form of repeated actions against the D.

Anti-injunction statute: An injunction is preventive relief not affirmative relief; therefore, the
statute doesn’t apply. (Specific performance is affirmative, not injunctive relief)

Class Notes
- Why would management agree to a check-off provision?
- Specific performance enforces the contract action; Injunctions are different
- Alternative remedy at law: (1)employees could sue for breach of contract for not performing
check-off or (2)Union could sue for anticipatory breach
 27/107

- Unions were once hindered by injunctions so they got a statute passed that several things must
be met before companies could bring injunction suits. That statute was meant to protect unions
but the defendant company in this case uses it to their advantage (clever, but it doesn’t work)
- Court driven by policy: even though the defendant’s argument makes logical sense, it goes
against the original purpose of the statute which is to protect the labor unions.
NOTE on Injunctions
- Federal judges were criticized for being activists when they granted large scale injunctions
relief
- Courts can enforce certain moral standards in relations between people.
 28/107

Case name: Wheelock v. Noonan

Statement of the case: The owner of a certain lot brought suit against a stranger whom
he’d given license to use his property for trespass, seeking an injunction.
Procedure: The trial court found as matter of law from these facts that the original permission
given did not justify what was done either is at respected the quantity of rock or the time
allowed; that after the withdrawal of the permission in the spring and the demand for the removal
of the rock the defendant was a trespasser, and the trespass was a continuing one which entitled
plaintiff to equitable relief; and awarded judgment requiring defendant to remove the rocks
before March 15, 1886, unless extended by the court.
Statement of facts: The defendant, who was a total stranger to the plaintiff, obtained from
the later a license to place upon his unoccupied lots in the upper part of the city of New York a
few rocks for a short time. The defendant gave his assurance that he would remove them in the
spring. However, during the winter, and in the absence and without the knowledge of plaintiff,
the defendant, the defendant covered six of the lots of plaintiff with “huge quantities of rock”.
Then in the spring the plaintiff, discovering the abuse of his permission, complained bitterly of
defendant’s conduct and ordered him to remove the rocks to some other locality. Though the
defendant promised to do so, he did not, and in the face of repeated demands neglected and
omitted to remove the rocks from the land.
Issues: Did the trial court err in granting an injunction holding that there was no adequate
remedy at law? Is it feasible to enforce the injunction?
Result on appeal: Affirmed.
Holding: No the trial court did not err in granting an injunction holding that there was no
adequate remedy at law.
Doctrinal rationale: While ordinarily courts of equity will not wield their power merely to
redress a trespass, yet they will interfere under peculiar circumstances, and have often done so
where the trespass was a continuing one, and a multiplicity of suits at law was involved in the
legal remedy. In cases of intrusion where no consent had been given for the entry of the intruder,
but whether the trespass was such from the beginning, or became one after a revocation of the
license, can make no difference as it respects the adequacy of the legal remedy. A court of equity
will act in such cases only after the plaintiff’s right has been established at law.
Policy rationale:
Additional Points: (Dicta) One who would justify under a license or permission must bring
his acts within the terms of the license. He exceeds then at his peril. There is no equity in
allowing him to strain them beyond their fair and reasonable interpretation.

Parol license, founded upon no consideration, is revocable at pleasure, even though the license
may have expended money on the faith of it.

Class Notes
- Injunction: Cost shifting mechanism in this case; however, if the defendant is judgment proof
the injunction may not be enforced
- Factors for injunction: (1)Likelihood of success on merits, (2)balance of equities, (3)Whether
plaintiff has “dirty hands” (good faith), (4)public interest, (5)was defendant willful,
(6)irreparable harm, (7)practicality of framing and enforcing a degree, (8)real property vs. other
property.
 29/107

- NOTE: nuisance affects the use and enjoyment of land (legal remedy) - is the placement of the
rocks a nuisance?
- Judges don’t like to issue injunctions because it proposes questions of competence.
 30/107

Case name: Campbell v. Seaman

Statement of the case: The owner of land improved by planting trees and shrubs brought
an action against a neighboring brick manufacturer to recover damages for nuisance and an
injunction restraining defendant from burning brick, alleging that gas from kiln that escaped
during the process of brick manufacturing killed and destroyed valuable pine and spruce trees
and injured their grape vines and plum trees.
Procedure: The referee found that the plaintiff owner was entitled to recover the damage
proved to have been sustained, and to an injunction restraining neighboring brick manufacturer
from burning brick at the place named by the brick manufacturing process. The General Term of
the Supreme Court in the third judicial department affirmed the judgment in favor of the plaintiff
owner entered upon the report of the referee. Brick manufacturer appeals.
Statement of facts: The brick manufacturer had been manufacturing brick on his own land
for 2 years. The burning of kiln under the brick manufacturing process causes sulphurous acid
gas to escape from the kiln which is very injurious to persons who in hale it and destructive to
many kinds of vegetation. The gas did not continually escape during the burning of kiln, but only
the last 2 days of the process, and was carried into and over plaintiff owner’s land only when the
wind was from the South, destroying vegetation on plaintiff owner’s property. There was another
process by which brick could be made that didn’t cause gas to escape, but it was more expensive.
When the land owner purchased land, brick manufacturer was not using his property for brick
making, but did later on.
Issues:
(1) Was the court correct in affirming the referee’s judgment that the neighboring brick
manufacturer’s brick burning constituted a nuisance to the plaintiff owner given that the burning
killed and injured vegetation on the plaintiff owner’s property?
(2) Was the court correct in affirming the referee’s grant of an injunction restraining defendant
from burning brick on his property given that the damage to the plaintiff owner is large and
substantial, that an injunction need not destroy the brick manufacturer’s business or interfere
materially with the useful and necessary trade of brick making, and that possible damage to the
brick manufacturer is unclear and does not appear to be great?
Result on appeal: Affirmed.
Holding:
(1) Yes, the court was correct in affirming the referee’s judgment that the neighboring brick
manufacturer’s brick burning constituted a nuisance to the plaintiff owner given that the burning
killed and injured vegetation on the plaintiff owner’s property.
(2) Yes, the court was correct in affirming the referee’s grant of an injunction restraining
defendant from burning brick on his property given that the damage to the plaintiff owner is
large and substantial, that an injunction need not destroy the brick manufacturer’s business or
interfere materially with the useful and necessary trade of brick making, and that possible
damage to the brick manufacturer is unclear and does not appear to be great.
Doctrinal rationale:
(1) Every person is bound to make reasonable use of his property so as not to unnecessarily
damage or annoy his neighbor. If he make unreasonable use of his land so as to produce material
annoyance, inconvenience, discomfort, or hurt to his neighbor. he will be guilty of a nuisance to
his neighbor and the law will hold him responsible for the consequent damage. To constitute a
nuisance, the use must be such to produce a tangible and appreciable injury to neighboring
property, or such as to render its enjoyment specifically uncomfortable or inconvenient.
 31/107

(2) Where the damage to one complaining of a nuisance is small or trifling, and the damage to
the one causing the nuisance will be large in case he be restrained, the courts will sometimes
deny an injunction. Remedy of law was inadequate, harm to P was great, harm to D small,
multiplicity of suits. Where an injunction prevents a multiplicity of suits, the injury is a recurring
one, and unless the nuisance be restrained the litigation would be interminable, the policy of the
law favors, and the peace and good order of society are best promoted by the termination of such
litigations by a single suit and injunction should be granted.
Policy rationale: The cost to D to move his property is not costly.
Additional Points: It is a general rule that every person may exercise exclusive dominion over
his property, and subject it to such uses as will best subserve his own private interests. Case
 32/107

Name: Spur Industries, Inc. v. Del. E. Webb Development Co.

SoC: A development company sued a neighboring feeding operation to enjoin the feeding
operation from operating a cattle feedlot near the developing town, alleging that the feeding
operation was a public nuisance because of the flies and the odor which were drifting or being
blown by the prevailing south to north wind over the southern portion of the company’s new
development.
PB: Trial court ruled in favor of the plaintiff.
Facts: Cattle in a commercial feedlot will produce 35 to 40 pounds of wet manure per day, per
head, or over a million pounds of wet manure wet manure per day for 30,000 head of cattle, and
that despite the admittedly good feedlot management and good housekeeping practices by the
feeding operation, the resulting odor and flies produced an annoying if not unhealthy situation as
far as the senior citizens of town were concerned. Statute provides, “The following conditions
are specifically declared public nuisances dangerous to public health: Any condition or place in
populous areas which constitutes a breeding place for flies, rodents, mosquitos and other insects
which are capable of carrying and transmitting disease-causing organisms to any person or
persons.”
Issue:
(1) Was the trial court correct in enjoining the feedlot where its operation of business is lawful in
the first instance, but becomes a nuisance by reason of a nearby residential area?
(2) May the developer of a completely new town or urban area in a previously agricultural area
be required to indemnify the operator of the feedlot who must move or cease operation because
of the presence of the residential area created by the developer?
RoA: Affirmed
Holding:
(1) Yes, the trial court was correct in enjoining the feedlot where its operation of business is
lawful in the first instance, but becomes a nuisance by reason of a nearby residential area.
(2) Yes, the developer of a completely new town or urban area in a previously agricultural area
may be required to indemnify the operator of the feedlot who must move or cease operation
because of the presence of the residential area created by the developer.
Doc R:
(1) A private nuisance is one affecting a single individual or definite small number of persons in
the enjoyment of private rights not common to the public, while a public nuisance is one
affecting the rights enjoyed by citizens as a part of the public. To constitute a public nuisance,
the nuisance must affect a considerable number of people or an entire community or
neighborhood. The feedlot was both a public and a private nuisance. Having shown a special
injury in the loss of sales the development company has a standing to bring suit to enjoin the
nuisance.
(2) It does not seem harsh to require a developer, who has taken advantage of the lesser land
values in a rural area as well as the availability of large tracts of land on which to build and
develop a new town or city in the area, to indemnify those who are forced to leave as a result.
Having brought people to the nuisance to the foreseeable detriment of the defendant, the plaintiff
must indemnify the defendant for a reasonable amount of the cost of moving or shutting down.
Pol R: Protecting the public from disease
Add. Pt: The residential landowner may not have relief if he knowingly came into a
neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby.
 33/107

Part II: Legal Argument (Indefiniteness)

Case Chart
(CC)..................................................................................................................
35

Case
Briefs.................................................................................................................
..............
Wakeman v. Wheeler & Wilson Manufacturing
Co. .............................................................40
Mayer v.
McCreery...........................................................................................................
.....45
United Press v. New York Press
Co. .....................................................................................46
Mackintosh v.
Thompson.......................................................................................................4
7
Mackintosh v.
Kimball...........................................................................................................4
9
Bluemner v.
Garvin...............................................................................................................
51
Moran v. Standard Oil
Co. ...................................................................................................53
Varney v.
Ditmars..............................................................................................................
....56
Rubber Trading Co. v. Manhattan Rubber Manufacturing
Co. ...........................................58
Wood v. Lucy, Lady Duff
Gordon..........................................................................................60
Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory
(I)...............................62
Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory
(II)..............................64
United States Rubber Co. v.
Silverstein.................................................................................65
Cohen & Sons v. Lurie Woolen
Co. ......................................................................................66
St. Regis Paper Co. v. Hubbs & Hastings Paper
Co. ...........................................................67
Sun Printing & Publishing Association v. Remington Paper & Power
Co. .........................69
 34/107

Case Name & SoC Contract Evidence & Holding Effect on other cases

Wakeman v. Wheeler & Type of contract: Oral - Parole Evidence: to give

Wilson Manufacturing
Co.
Distributor sued
manufacturer to recover
damages for profits lost on
actual sales made by the
distributor as a result of the
manufacturer’s breach of
contract to furnish the
distributors’ machines at the
lowest net gold price should
the distributors sell fifty of
the manufacturer’s machines.
Executory (for action that meaning to K.
had not yet been performed) - Expert testimony not
permitted.
Indefinite Terms: (1)duration When certain damages are
of the K, (2)price (“lowest direct result o K breach,
net gold price”), (3)territory, indef terms cannot lmt
(4)quantity, (5)delivery liability for the damages
terms.
Speculative terms to be
FACTS: P was to be the determined by the jury
exclusive agent of D in
Mexico if P could sell 50. 1st Unfair to refuse recovery
order for 50 filled then D just b/c the amt of loss isn’t
refused to fill any more 100% certain.
orders
The K was enforced

Mayer v. McCreery Type of contract: Written Agreements to agree do not There is a huge difference
executory make a binding K. between this and Wakeman
Lessee brought an action
against Lessor for specific Indefinite Terms: specifics All conditions of the K must Maybe Wakeman doesn’t
performance of an alleged of the alterations to be made be met before the K becomes apply in real property
agreement for the lessor to on premises operative. treatment (?)
lease his premises in New
York City to the lessee upon
the completion of certain
agreed upon alterations.

United Press v. New
York Press Co.
Plaintiff brought an action
against defendant to recover
damages in the amount of
$93,000 ($300 a week from
January 1, 1894 to January 1,
1900) for the breach of a
contract in writing entered
into between the parties
wherein the plaintiff agreed
to deliver the night news
report to the defendant every
morning in New York City
and the defendant agreed to
pay the plaintiff a sum not
exceeding $300 every week
until January 1, 1900 in
exchange.
Type of contract: Written - No parole evidence to
executory. Still in the middle create a fixed price term that
K period could have been, but was not
created by the parties at the
Indefinite Terms: Price term time of the agreement
(“no more than $300” per Executory K must have
week) explicit terms and price is
essential element of K; price
FACTS: D paid $300 a week here is subject to future
until breach. D’s position is agreement (ie Agreement to
that the price could no longer agree).
be agreed upon.
K operative only so long as
the parties agreed on price
K is enforced, but D is still
the prevailing party because
only nominal damages were
awarded
Dicta about enforcement
(makes a difference that it is
executory K; had goods been
supplied to D, justice would
require recovery for the fair
value of services (Quantum
Meruit) or the fair value of
the goods (Quantum V.)) is
turned into law in
Mackintosh v. Kimball
With regard to evidence,
overrules Wakeman.

Case Name & SoC
Mackintosh v.
Thompson
An employee brought this
action for a breach of an
alleged contract of
employment against his
employer to recover the
reasonable value of his
services above his salary,
alleging that he entered into
the contract to remain in the
employ of his employer at
the same salary which he was
receiving, during the
completion of two certain
buildings in consideration of
the agreement, which was to
pay him in addition to his
salary, the reasonable value
of his services and time spent
upon said buildings while
working for the employer.
Mackintosh v. Kimball
An employee brought this
second action for a breach of
an alleged contract of
employment against his
employer to recover the
reasonable value of his
services above his salary,
alleging that he entered into
the contract to remain in the
employ of his employer at
the same salary which he was
receiving, during the
completion of two certain
buildings in consideration of
the agreement, which was to
pay him in addition to his
salary, the reasonable value
of his services and time spent
upon said buildings while
working for the employer.
Contract
Type of contract: Oral
Executed
Indefinite Terms:
Compensation
FACTS: P’s motion to add
an interest in profits was
denied. P invokes QM even
though his complaint is for
breach of K.
Type of contract: Oral
executed
Indefinite Terms:
compensation
FACTS: P modified
conversation with Kimball;
now Kimball assured P that
his compensation would be
satisfactory.
35/107
Evidence & Holding Effect on other cases
- No Parole Evidence United Press Dicta affects
this case: If this was for
Full intention of the parties breach of an executory
must be ascertained by the K agreement, no recovery could
alone, whether executed or be had in QM under United
executory. Press.
If the K can’t be enforced
and it is executed. this is
where QM becomes
available, but here the
complaint was for a breach
of K.
There maybe an agreement
to agree.
The contract is not enforced
because (1)no def agreement
was made, (2)No consid,
since P had existing duty and
was not obligated to do
anything additional, and (3)P
had already recovered salary
for his services.
Where K is too indef to be United Press dicta now
enforced, QM is permitted becomes law.
for value of services but not
in this case.
The K is not enforced and
there is no QM.
Is the court confused?

Case Name & SoC
Bluemner v. Garvin
An associate architect sued
the contracting architect for a
breach of contract to recover
damages for wrongful failure
and refusal to comply with
the terms of the said contract
and for the reasonable value
of services rendered.
Moran v. Standard Oil
Co.
A paint seller brought two
causes of action against the
paint manufacturer for
breach of contract to recover
commissions earned as the
manufacturer’s salesman
from April to September,
1903 and to recover damages
because of the breach of an
employment contract under
which he was employed,
respectively.
Cardozo
Varney v. Ditmars
Employee brought this cause
of action against his former
employer for an alleged
wrongful discharge to
recover for the services
under a formal employment
contract from November 7,
1911 to December 31, 1911,
at $40 per week and for a fair
and reasonable percentage of
the net profits of the
employer’s business from
February 1, 1911 to January
1, 1912.
Cardozo dissents
Contract
Type of contract: Oral
Executed
Indefinite Terms: value of
commissions to be divided
Type of contract: Written
with oral promises
Indefinite Terms: (1)When
settlement of loss would be
paid, (2)sched of
commissions.
“Paint Case”
Type of contract: Oral
executory K
Indefinite Terms: amount of
profits
36/107
Evidence & Holding Effect on other cases
- Allows evidence to Court gets confused between
determine QM the first and second cause of
When K does not fix amt of action; it never sends the
commissions to be divided second to the jury.
there can’t be action for
recovery of damages under
breach of K; under QM, P
can only collect if enough
factual evidence
K not enforced
- P can’t use his own Overrules Mackintosh v.
testimony as evidence for the Thompson: implied duty on
value of services. part of D to employ P for 5
Where to parties use the yrs
word “agreement” mutuality
of obligation is implied Moves away fro United Press
(Canons of Cardozo) - now looking to intent.
K is enforced
- No Parole evidence; expert Restates Mackintosh,
testimony could be used to Bluemner, Mayer
determine mkt value.
When terms of K give P a Steps bk from Moran
fair share or profit are vague,
& amt can’t be compared Limits United Press: saying
from evidence evidence it didn’t stand for proposition
presented, ct didn’t err in that a K is unenforceable
dismissing case; Cardozo unless the price is explicit.
dissents - says United Press
has been misunderstood
Intent was present.
K is not enforced.
 37/107

Case Name & SoC Contract Evidence & Holding Effect on other cases

Rubber Trading Co. v.
Manhattan Rubber
Manufacturing Co.
A seller brought this action
against the buyer to recover
the profit lost from a breach
of contract, alleging that the
buyer failed to complete K.
Cardozo
Type of contract: executory
Indefinite Terms: Terms of
inspection.
NOTE: court implied term
according to custom and
practice
- Cardozo looks at custom No previous cases cited
between parties.
Where one party breaches a
K and the other party (here
P) fails to give notice that
the K is abandoned and
continues, damages can be
awarded for the breach.
K is enforced.

Wood v. Lucy, Lady
Duff Gordon
An agent sued “a creator of
fashions” for damages
sustained from her breach of
contract.
Type of contract: exclusive
dealings K
Indefinite Terms: mutuality
of obligation
Where mutuality of
obligation is not expressly
stated in a K it may be
implied through the actions
of the parties
Moves away from
formalities; uses instinct with
obligation from Moran but
disregard Moral that the
drafter of K being in position
to protect himself.

Cardozo

Oscar Schlegel
Manufacturing Co. v.
Peter Cooper’s Glue
Factory (I & II)
An action brought by a
jobber/buyer against a
manufacturer/seller to
recover damages for the
manufacturer’s breach of
contract.
(II)Decided w/o Cardozo
Type of contract: written
executory
Indefinite Terms: amt of
goods to be furnished
(quantity)
- Course of dealing
(1)When a K is made in
good faith, the K contains a
mutual obligation and is
enforceable
D could have protected itself
(2)Where requirement K has
an indef. quantity term and
the buyer wasn’t req. to buy
minimum amt of the good, K
is invalid b/c consideration
lacking.
(1)Looks only at conduct of
breaching party not
Cardozian
(2)Distinguished Lucy b/c no
agency being paid half the
profits which forced the P to
act in good faith and buy
Here nothing to imply
mutuality

Test: K enforceable when

both parties can sue

United States Rubber
Co. v. Silverstein
P sued D for a breach of
contract to recover damages
for default of payment,
alleging that the contract
guaranteed to cover P’s
claim against D’s son.
Type of contract: written
executory
Indefinite Terms: which son
D is referring to
Where the guarantor makes
an ambiguous promise, he
will be held to the meaning
that he had reason to believe
that P would reasonably
attach to the promise
K is enforced.
Different from United Press -
not looking at scope of
damages - just who the
guarantee covers.
Follows Moran - indef term
against writer of the K

Cardozo

Case Name & SoC
Cohen & Sons v. Lurie
Woolen Co.
Buyer sued seller to recover
damages for a breach of
contract under which P was
given the privilege to
confirm more of the good for
sale if D could get more,
alleging that upon exercise of
this privilege, D withheld
500 pcs.
Cardozo Concurs
St. Regis Paper Co. v.
Hubbs & Hastings
Paper Co.
Seller of paper sues buyer for
a printing company for a
breach of contract to recover
damages for the unpaid
balance on the sale of paper
The buyer counterclaims for
unpaid commissions and
enforcement of the contract.
Cardozo
Sun Printing &
Publishing Association
v. Remington Paper &
Power Co.
This is an action by a buyer
against a sell to recover
damages resulting from a
breach of contract to sell
paper.
Policy driven case: to teach
the lawyers a lesson so to
speak.
Cardozo
Contract
Type of contract: written
option
Indefinite Terms: (1)price,
(2)amt. (quantity), (3)time of and K has an option which is
additional supply
Type of contract: written
executory
Indefinite Terms: (1)price
after 3 mos. (agreement to
agere)
Type of contract: executory
Indefinite Terms: (1)price,
(2)term of price (time)
Evidence & Holding
- Evidence of additional
circumstances admissible to
determine intent.
Where 2 parties enter into K
consid. for original, there is
mutuality of obligation to
make option enforceable.
Canon - if K missin terms
the ct can substitute
reasonable terms eq. w/
industry stds.
Option K is enforced.
- Parole evidence not
allowed here
Where 2 parties enter into an
executory K which states
that it can be terminated if
parties fail to agree, then
good faith does not req.
parties to do more than they
are expressly bound by K to
do and the ct. will not
enforce an agreement to
agree.
K is somewhat enforced (P
wins)
Agreement in respect of time
is as essential to a completed
K as agreement in respect to
price
Where an executory K lacks
certainty w/ respect to the
length of time to govern a
new fixed price period, the K
is incomplete and the D is
not bound.
An agreement to agree is not
binding or an enforceable
contract.
K is not enforced
38/107
Effect on other cases
Overrules Varney
Ct. now willing to infer
meaning where one term left
to one party
Cardozo cites Schlegel: there
the option stood alone (it was
voluntary and revocable -
limits Schlegel b/c he doesn’t
agree w/ the decision there,
P cites United Press, Mayer
and Varney - terms are so
indef as to have no legal
significance
NOTE: if D would have been
found to be a broker the case
may have turned out
differently
Cohen: if just price left open
P might have have an option
St. Regis: an agreement to
agree - D exercised right to
leave K
Mayer: D’s right not affected
by motive
United Press: D had no duty
to accept term - could do
business his way
Rubber: P fixed length of
terms & coupled demand w/
condition there was no duty
to accept
Dissent uses Wakeman and
Cardozo’s own opinions.
 39/107

Case name & citation: Wakeman v. Wheeler & Wilson Manufacturing C., 101 N.Y. 205, 4
N.E. 264 (1886).
Statement of the case: Distributor sued manufacturer to recover damages for profits lost
on actual sales made by the distributor as a result of the manufacturer’s breach of contract to
furnish the distributors’ machines at the lowest net gold price should the distributors sell fifty of
the manufacturer’s machines.
Procedure: At trial the distributors made various offers of evidence to show the value of their
contract with the manufacturer through expert opinion and evidence of the number of machines
sold through agencies established in Mexico. The court excluded this evidence. The trial judge
instructed the jury that the distributors could only recover damages for the refusal of the
manufacturer to fill the orders given on the ground that further award of damages would be too
speculative. The jury rendered a verdict for the distributor. The court entered judgment for the
distributor and awarded damages for the refusal of the defendant to fill orders actually given in
the amount of $204. The distributor moved for a new trial. The trial court denied Distributor’s
motion for a new trial. The appellate court affirmed the trial court’s judgment. The distributor
appeals.
Statement of facts: The manufacturers entered into a contract with the distributors whereby
if the distributors sold fifty of the manufacturer’s machines to one firm or party in Mexico then
for every fifty machines sold the, distributors would have the sole agency for the sale of the
machines in that locality and the manufacturer’s would furnish machines at the lowest net gold
prices. Subsequently, the distributor sold fifty machines to one Mead of the San Louis Potosi,
The order was sent to the manufactures, filled, forwarded to Mexico, and paid for. After that, the
distributor’s agent made another sale of fifty machines in another locality and an order for those
machines was sent to the manufacturer. The manufacturer refused to fill the order and refused to
perform, repudiated its agreement, and set up his own agencies in the localities of Mexico.
Issues:
(1) Did the trial court err in denying motion for new trial?
(2) Did the trial court err by instructing the jury that the distributors could only recover damages
for the refusal of the manufacturer to fill the orders given?
(3) Was the trial court correct in excluding expert testimony as evidence?
(4) Did the trial court err in excluding evidence which would have given the jury some aid in
estimating the damages?
Result on appeal: Reversed.
Holding:
Narrow:
(1) Yes, the trial court erred in denying motion for new trial.
(2) Yes, the trial court erred by instructing the jury that the distributors could only recover
damages for the refusal of the manufacturer to fill the orders given?
(3) Yes, the trial court was correct in excluding expert testimony.
(4) Yes, the trial court erred in excluding evidence that subsequent to its repudiation of its
agreement, the manufacturer established agencies in Mexico; and the number of machines sold
through such agencies which would have given the jury some aid in estimating the damages?
Broad:
Doctrinal rationale:
(1)
 40/107

(2) All damages resulting necessarily and immediately and directly from the breach are
recoverable, and not those that are contingent and uncertain.
(3) Exclude opinions and receive facts.
(4) The damage caused to the distributors by the total breach of the agreement made by the
manufacturer is difficult to estimate.
Policy rationale: All the facts should have been submitted to the jury with proper instructions,
and their verdict would have approached as near the proper measure of justice as the nature of
this case and the infirmity which attaches to the administration of law will admit.
Additional Points: The court does not consider the bearing of the statute of frauds in this case
because it was not brought up in trial.

Class Notes
Agency contract has some value to agent although uncertain, and it should be decided by jury
what the value would be.

What should the ct do on remand to decide what the length of K would be

Would Hadley help determine the amt of damages to the parties.

Indefinite Terms: Relevant Price, Quantity, Time limit, delivery terms, costs, profits

The Case Analysis

- Is there a contract? Is court’s assumption that there is a contract valid
- What are the obligations on each side of the contract?
- When did the contract take place? There may have been a K after P sold the machines and D
supplied them.
- The contract terms are unclear
- What is the lowest net gold price?
- How long does contract last?
- What are the territorial limits of K?
- Profits?
- How do you calculate damages in a case like this?
- Does Hadley help in this instance?
- Jury must speculate
- Who’s an expert?
- Opinion is informal. Case too indefinite to enforce (?)
- Cases the ct sites are less indefinite and focuses on profits, whereas in the instant case
everything is indefinite
- Value of K is compensable for breach of K.
- Masterton v. Mayer
- Combines Hadley and Polemis
- Used by D’s attorney
- Ct takes the case that D cites and uses it in support of P
- Bagley v. Smith: Uncertainty of what remedies should be vs. uncertainty that there are
remedies.
- Taylor v, Bradley
 41/107

- Used by P’s lawyer

- Ct. accepts P’s lawyer’s argument
- K for term of yrs.
- Profits that would have been realized but for default are recoverable
- Shell v. Plumb
- no fixed time period so its closer to Wakeman than the previous cases the ct cites
- How to figure out time terms of contract for damages
- statistics for life expectancy
- expert testimony on how long certain Ks last.
- There are certain terms that should be determined by jury
- Dennis v. Maxfield
- Moving away from situation in Wakeman
- There are other types of indefinite K that still can get damages
- Simpson v. London
- Damages for loss of time and loss of profit
- natural and proximate and probable result of failure to deliver goods to determine
damages
- Jacques v. Miller
- Loss of profits for a specific period
- Ct. gave awarded and ordered specific performance
- How Machine Co. v, Bryson
- Factually closest to this case
- Maj.: Measure of damages is the value of time lost as the result of breach
- Placed toward the end of the opinion and viewed as incorrect (ct. agrees with dissent)
- Civil Damage Act
- Policy reasoning: The manufacturer used this small business as expert to get the info it wanted
about the mkt in Mexico and then dropped them.
- Wheeler’s argument
- One of his arguments offsets the other
- Violation of Statute of Frauds
- Attacked Pleadings
- There was no binding K
- Didn’t perform K
- Didn’t plead special damages
- Wakeman’s argument
- P is entitled to the bare value of his contract
- P should be allowed to submit evidence that will aid in determining profits
- Cites only two cases because he has a title-wave of cases against him

On remand
- How do you determine what profits may have been?
- How much the manufacturer’s agencies in Mexico made
- How do you determine what net gold price is?
- Expert testimony (?)
- Put Wakeman on the stand to say what this price is in the mkt.
- Use the D’s testimony
 42/107

Draft an argument for the D.

- Informal arrangement to supply machines for certain sales - says there is a K for at least 51
machines and you’d pay for those
- Any future arrangements would be to speculative
- A sale’s K that is not enforceable because there’s no meeting of the minds

NOTE: What determines the case is the normative perspective of the court (ie: the second
because)
- A better Argument for D
- K was not a contract of agency, but a sales K with privilege: can recover for machines
already sold, but anything beyond that is not binding because of the informality of K.
There is no logical stopping point under the arrangement the distributor had with the
- Thus Breach of K was failure to provide P with machines and any est. of future sales
would be speculative. If ct. enters evidence that is remote and speculative it should be
req that the elements of the evidence should be plead.
- Normatively: argue that D didn’t take advantage of P, but that P in fact took advantage
of D.
- Statute of Frauds
- Historical purpose: Prevention of fraudulent practices which commonly occurred and
led to perjury
- Requiring that certain obligations be proved only through a writing
- did cut down on the number of false claims
- did nothing about forgery, etc.
- Section 4: Addressed K type in Wakeman, Ks not to be performed within one yr of the
making thereof.
- Only oral K that specifies that K is not to be performed within one yr. requires
writing
- D’s argument in misquoting the statute of frauds bars a enforcement of an oral K
that fails to specify that K is not to be performed within one yr. --> Oral K that
does not specify that K is to be performed within one yr. requires a writing.
- When K is for indef term but performance can possibly be performed within a yr. cts
usually do not apply statute of frauds.
- How did Ct. handle Statute of Frauds
- It ignored statute of frauds because D didn’t bring it up below so he waived his
right to bring it up on appeal.
- Use of expert testimony
- How do you prove what the mkt value should be for damages
- How long to Ks of this nature usually last
- Good Faith
- Normative Lens: D used the labor of P to find out if Mexico mkt was a good mkt for
selling machines (bad faith)
- Finding of a K and allowing case to go to jury reflects the court’s interest in good faith
in contracting.
 43/107

Case name & citation: Mayer v. McCreery, 119 N.Y. 434, N.E. 1045 (1890)
Statement of the case: Lessee brought an action against Lessor for specific performance of
an alleged agreement for the lessor to lease his premises in New York City to the lessee upon
certain terms.
Procedure: The lessor denied the making of an agreement. The trial court entered judgment for
the lessee and awarded damages for the lessor’s The lessor appealed. The General Term of the
Supreme Court in the first judicial department reversed the judgment in favor of the lessee and
granted a new trial. The lessee appeals.
Statement of facts: Lessee sent a letter to the lessor offering to lease the lessor’s property
for 21 years for a yearly rent of $5,250 a year after certain alterations were made, terms to be
mutually agreed upon. The same day he received the offer, the lessor accepted it, then after
receiving advice on from his counsel, the lessor sent another letter to the lessee, saying that the
lease could not be made. The lessor subsequently sold the property in question.
Issues: Was the lower court correct in reversing a judgment for the lessee, holding that the
letters between the lessee and lessor did not constitute a completed agreement to lease, forming
in substance a lease of the aforementioned premises, given that the lessor declines to make the
lease and the parties do not mutually agree upon the alterations to be made?
Result on appeal: Affirmed.
Holding: Yes, the lower court was correct in reversing a judgment for the lessee, holding that
the letters between the lessee and lessor did not constitute a completed agreement to lease,
forming in substance a lease of the aforementioned premises, given that the lessor declines to
make the lease and the parties do not mutually agree upon the alterations to be made.
Doctrinal rationale: There is no valid agreement excepting an agreement to give a lease
provided the parties shall agree upon the plans for alterations thereafter to be made. The lessor
agreed that he would give a lease, provided he and the lessee should subsequently agree upon
plans for alterations to be made. But he was under no obligation to agree upon such plans. There
was only an agreement to agree.
Policy rationale:
 44/107

Case name & citation: United Press v. New York Press Co., 164 N.Y. 406, 58 N.E. 527
(1900).
Statement of the case: Plaintiff brought an action against defendant to recover damages in
the amount of $93,000 ($300 a week from January 1, 1894 to January 1, 1900) for the breach of
a contract in writing entered into between the parties wherein the plaintiff agreed to deliver the
night news report to the defendant every morning in New York City and the defendant agreed to
pay the plaintiff a sum not exceeding $300 every week until January 1, 1900 in exchange.
Procedure: The defendant moved to dismiss the plaintiff’s complaint. The trial court denied
the motion to dismiss the complaint. At the end of the plaintiff’s case, the defendant offering no
evidence, a verdict was directed for the plaintiff in the sum of six cents on the ground that there
was a technical breach of contract for which only nominal damages might be awarded. The
plaintiff appealed. The Appellate Division affirmed the judgment of the trial court. Plaintiff
appeals.
Statement of facts: The contract was made in 1892 and the parties proceeded under it (with
the defendant paying the plaintiff $300 every week for delivery of the night news report) until
January 1, 1984 when the defendant notified the plaintiff to cease sending the news report and
stating that it was necessary for the plaintiff to make a reduction in the cost of the news service.
Issues: Was the trial court correct in awarding six cents in nominal damages to the plaintiff for
the defendant’s breach of contract on the grounds that the contract was so indefinite, by reason of
its failure to state the price to be paid by the defendant, that it precluded a recovery of substantial
damages for its breach, given that the contract provided that the defendant was to pay a sum not
exceeding $300 a week for the plaintiff’s services?
Result on appeal: Affirmed.
Holding: Yes, the trial court was correct in awarding six cents in nominal damages to the
plaintiff for the defendant’s breach of contract on the grounds that the contract was so indefinite,
by reason of its failure to state the price to be paid by the defendant, that it precluded a recovery
of substantial damages for its breach, given that the contract provided that the defendant was to
pay a sum not exceeding $300 a week for the plaintiff’s services.
Doctrinal rationale: The statute of frauds requires that the memorandum contain all the
material terms of the contract between the parties and that it must show on its face what the
whole agreement is so far as the same is executory and remains to be performed, and rests upon
unfulfilled promise.
Policy rationale:

Class Notes
- Ct. didn’t think about case in commercial terms
- Lawyers didn’t argue for commercial terms
- It hurts business to have a set price for an extended period of time
- Used later in a variety pf case
- Did the ct. find the K to be valid or invalid is not the question; ct found there was a valid
executory K
- The only question was whether substantial damages should be given
- Case is not about validity of K, but rather about the scope of damages.
 45/107

Case name & citation: MacKintosh v. Thompson

Statement of the case: An employee brought this action for a breach of an alleged contract
of employment against his employer to recover the reasonable value of his services above his
salary, alleging that he entered into the contract to remain in the employ of his employer at the
same salary which he was receiving, during the completion of two certain buildings in
consideration of the agreement, which was to pay him in addition to his salary, the reasonable
value of his services and time spent upon said buildings while working for the employer.
Procedure: At the opening of the trial the employee’s attorney claimed a reasonable interest in
the two buildings if he should stay until they were completed, an interest in profits. An objection
was made to showing this under the complaint. The court sustained the objection because the
complaint said nothing about profits. The employee’s attorney requested leave to amend the
complaint. The employer’s attorney opposed the amendment. The court denied the motion and
exception was taken. Evidence of the employer’s profits on the two buildings was excluded and
exception taken. The employee rested. The employer made a motion to dismiss the complaint.
The employee made a motion to go to the jury on the question of how much the employee’s
services were worth which the trial court denied. The employee appeals from the judgment
dismissing the complaint.
Statement of facts: The employee was an architect employed by the defendants. He was
working for the employer at a stated salary per week. Dissatisfied with the amount received, he
told the employer he intended to leave their employ unless they paid him more money. The
employer told him that no increase could be made just then, but he would be paid more if more
work came in. When more work came in the employee once again said that if he was not paid
more he would start for himself. The employer said that his idea was to give him an interest in
two buildings being completed, and stated “You can rely on me; I will see that it is alright,” but
further stated, “You don’t know what I have in view.” The employee continued to work with the
employer at the same salary with the understanding that the share in profits was in addition to his
regular salary.
Issue: Was the trial court correct in dismissing the complaint for an alleged breach of contract
given that there was no definite agreement of any kind for an increase of salary for any definite
period or any stated amount and that there was no consideration for an alleged promise to pay an
increase in salary since the employee does not say that he agreed or was under obligation to
remain with the employers for any fixed period of time?
Result on appeal: Affirmed with cost.
Holding: Yes, the trial court was correct in dismissing the complaint for an alleged breach of
contract given that there was no definite agreement of any kind for an increase of salary for any
definite period or any stated amount and that there was no consideration for an alleged promise
to pay an increase in salary since the employee does not say that he agreed or was under
obligation to remain with the employers for any fixed period of time.
Doctrinal rationale: (Rule) For the validity of a contract, the promise or the agreement of the
parties to it must be certain and explicit, and their full intention may be ascertained to a
reasonable degree of certainty. Their agreement must be neither vague nor indefinite, and if
defective, parol proof cannot be resorted to. To be enforced, whether executory or executed,
contracts must be sufficiently definite and certain terms that it can be seen that the minds of the
parties have met upon some settled terms. (Application) The most that can be predicated upon
the conversation that employer had with employee is that the employer was favorably disposed
to the consideration of the question of increased salary.
 46/107

Policy rationale:

Class Notes
- On redirect examination, P testified that he was promised an interest in profits, but did not say
anything about this in the direct examination.
- Promise for price above salary is not valid unless in writing (?)
- Proof and pleadings don’t conform to one another, because in P plead the
reasonable value of his services and sought to prove interest in profits.
- P tried to argue quantum meruit, quantum valebant, when he had a formal contract.
- NOTE: Ct. didn’t really tell lawyers what they needed to argue by their holdings, so the
lawyers a re trying a variety of different things
 47/107

Case name & citation: MacKintosh v. Kimball

Statement of the case: An employee brought this second action for a breach of an alleged
contract of employment against his employer to recover the reasonable value of his services
above his salary, alleging that he entered into the contract to remain in the employ of his
employer at the same salary which he was receiving, during the completion of two certain
buildings in consideration of the agreement, which was to pay him in addition to his salary, the
reasonable value of his services and time spent upon said buildings while working for the
employer.
Procedure: In the employee’s first action, the complaint was dismissed in the trial court and
the appellate court affirmed the trial court’s judgment. The employee brought this second action
to recover for the same cause. At trial, upon rebuttal the employee was recalled and testified that
he remembered a conversation which took place between himself and a third party with the
employer about a month before the dissolution of the copartnership. The employee was then
asked in detail about this conversation. The employer’s objected to this on the grounds that it
was incompetent, irrelevant and immaterial and not binding on the ground that the employer’s
copartner was not present and the partnership had been dissolved, and that nothing said by the
employer could make a contract. The trial court held that the employee would have the right to
give it as original evidence against the employer and therefore overruled the objection, The
employer excepted. The third party’s testimony was also objected by the employer and the
objection was overruled and the employer again excepted.
Statement of facts: The employee was an architect employed by the defendants. He was
working for the employer at a stated salary per week. Dissatisfied with the amount received, he
told the employer he intended to leave their employ unless they paid him more money. The
employer told him that no increase could be made just then, but he would be paid more if more
work came in. When more work came in the employee once again said that if he was not paid
more he would start for himself. The employer said that his idea was to give him an interest in
two buildings being completed. The employee stated that his former relations with the firm were
not altogether satisfactory. The employer responded that it is was his partner’s fault. The
employee asked what what the amount of increase in his salary would be and the employer
answered, “You can rely on me; I will see that it is alright,” and further, “You don’t know what I
have in view.” The employee continued to work with the employer at the same salary with the
understanding that the share in profits was in addition to his regular salary.
Issues:
(1) Did the trial court err in entering judgment for the defendant given that the employee’s
additional testimony that the employer promised that the increase would be satisfactory to the
employee and that the employer said “I will see that you get a satisfactory amount” shows that
no definite arrangement was made or intended to be made and that all that was promised was that
some arrangement in the future would be made which would be satisfactory to the employee and
which would insure to him a larger compensation than he had been receiving from his
employers?
(2) Did the trial court err in admitting as evidence testimony given by one defendant against
himself and another defendant in an action that was joint against the employer and his copartner?
Result on appeal: Judgment reversed and a new trial ordered with costs to the employer to
abide the event.
Holding:
 48/107

(1) Yes, the trial court erred in entering judgment for the defendant given that the employee’s
additional testimony that the employer promised that the increase would be satisfactory to the
employee and that the employer said “I will see that you get a satisfactory amount” shows that
no definite arrangement was made or intended to be made and that all that was promised was that
some arrangement in the future would be made which would be satisfactory to the employee and
which would insure to him a larger compensation than he had been receiving from his
employers.
(2) Yes, the trial court erred in admitting as evidence testimony given by one defendant against
himself and another defendant in an action that was joint against the employer and his copartner.
Doctrinal rationale:
(1) (Rule) For the validity of a contract, the promise or the agreement of the parties to it must be
certain and explicit, and their full intention may be ascertained to a reasonable degree of
certainty. Their agreement must be neither vague nor indefinite. (Application) There is no
contract which can be enforced which entitles the employee to receive anything in addition to
that which was paid hi and which he received as compensation for his services.
(2) The declarations of one partner after the dissolution of a firm, not made in the business of
winding up and not connected with any transaction or dealing connected with the dissolution of
the partnership, are inadmissible against his copartner. He may bind himself by his admissions,
but as to his former partners, his agency, except for special purposes, is terminated by the
dissolution, and his admissions are like those of a stranger and they are not bound them.
Policy rationale:
Additional Points: The court called attention to the fact that the Counsel for the employee
printed in his brief a private letter from another judge to express its disapproval of an attempt to
use what was evidently a private letter as an authority in the court.

Class Notes
- Different Facts: Thompson said earlier that if any more work came in that P would get a raise.
- To avoid United Press, P claims that United Press only deals with executory Ks, but this K was
already executed, and therefore doesn’t req. specific price terms. Ct. doesn’t accept P’s claim.
- Point that P could work in his own way suggests that P was a partner and therefore entitled to
portion of the profits
- Ct. won’t give quantum meruit recovery because P had a salary and won’t give normal K
damages because the terms are too vague and indefinite.
 49/107

Case name & citation: Bluemner v. Garvin

Statement of the case: An associate architect sued the contracting architect for a breach of
contract to recover damages for wrongful failure and refusal to comply with the terms of the said
contract and for the reasonable value of services rendered.
Procedure: Plaintiff filed 2 causes of action against the defendant. Before testimony was
offered, the defendant moved to dismiss the first cause of action. The trial court denied the
defendant’s motion. Plaintiff’s testimony served as evidence to prove the special contract alleged
in the first cause of action in the complaint and as evidence of the reasonable value of services
rendered for the second cause of action. At the close of the plaintiff’s case, the defendant moved
again to dismiss the first cause of action. The trial court denied this motion and the defendant
asked the court to direct the plaintiff to elect upon which cause of action set out in the complaint
he intended to go to the jury. The trial court also denied this motion, but charged the jury solely
upon the first cause of action. The jury returned a verdict for the plaintiff in the amount of the
value of services rendered. The trial court entered judgment for the plaintiff and awarded
damages. The defendant moved for a new trial. The trial court denied the defendant’s motion.
Defendant appeals.
Statement of facts: The defendant was employed as an architect to design a public building
and to submit the plans for the building to a commission for approval. The defendant did this, but
his plans and designs were rejected by the commission as improper and unfit. The defendant then
entered into an agreement with the plaintiff whereby the plaintiff agreed to draw the designs and
plans for said building and in exchange the defendant would recognize the plaintiff as the author
and designer of the plans and would fairly share with plaintiff the commissions received from his
contract with the city. Plaintiff drew plans and designs for the building without any material
assistance from the defendant, which were then approved by the commission. However the
defendant refused to recognize the plaintiff as the author and designer of the plans and refused to
pay plaintiff the one-half of commissions received by the defendant. Plaintiff also alleged that he
rendered service to the defendant that were reasonably worth $10,000 of which only $200 had
been paid.
Issues:
(1) Did the trial court err in refusing to dismiss the complaint, holding that the first cause of
action set up an enforceable special contract, given that there is nothing in the contract which
fixes the amount of the commissions to be divided, or anything in its terms to define what would
be a fair division of the commissions?
(2) Did the trial court err in entering the jury’s verdict, awarding plaintiff for the reasonable
value of his services, given that the only testimony as to the value of the services actually
rendered was the opinion of the plaintiff himself, and given that the trial judge only instructed
the jury on the theory of formal expressed contracts?
Result on appeal: Judgment reversed and a new trial ordered.
Holding:
(1) Yes, the trial court erred in refusing to dismiss the complaint, holding that the first cause of
action set up an enforceable special contract, given that there is nothing in the contract which
fixes the amount of the commissions to be divided, or anything in its terms to define what would
be a fair division of the commissions.
(2) Yes, the trial court erred in entering the jury’s verdict, awarding plaintiff for the reasonable
value of his services, given that the only testimony as to the value of the services actually
 50/107

rendered was the opinion of the plaintiff himself, and given that the trial judge only instructed
the jury on the theory of formal expressed contracts.
Doctrinal rationale:
(1) If the intention of the parties in so essential a particular cannot be ascertained from the
instrument, neither the court nor the jury will be allowed to make an agreement for them upon
the subject. For the validity of a contract, the promise of the agreement of the parties to it must
be certain and explicit, and that their full intention may be ascertained to a reasonable degree of
certainty.
(2) There is insufficient evidence to sustain the jury’s verdict. The court did not submit the case
to the jury upon the theory of quantum meruit.
Policy rationale:

Class Notes
- Garvin had never been trained as an architect
- Express K for fair share of commissions
- 1st cause of action for $20k second cause of action for $10k
- Judge only directs jury on the breach of contract
- Lawyer gave ct. two ways to give him a verdict.
- This is good because he is not sure how the court will interpret based on prior cases
- Good attorney for P because he gives claims to recover under both theories of K (quantum
meruit, and express K)
- United Press isn’t good here because it was for an executory contract, and the case here is not
an executory contract. Also in United Press the only question was the scope of damages, not
whether there was a contract.
- The court below focused on formal expressed contract theory, not quantum meruit, but awarded
damages that were closer to quantum meruit.
- In the new trial the only claim will be on quantum meruit because the court said that P could
not recover on the formal expressed contract theory because the terms were too indefinite.
- To prove what the reasonable value of services is: P could say what he understood to be the
reasonable value of his services, Industry custom, etc.
- P could have sought specific performance of the K.
- In Mackintosh, P was being paid a salary. In this case, the P was not paid anything for his
services.
- By filing both causes of action, P’s lawyer was forcing the court to express
 51/107

Case name & citation: Moran v. Standard Oil Co.

Statement of the case: A paint seller brought two causes of action against the paint
manufacturer for breach of contract to recover commissions earned as the manufacturer’s
salesman from April to September, 1903 and to recover damages because of the breach of an
employment contract under which he was employed, respectively.
Procedure: The trial judge dismissed the cause of action for damages on ground that the
contract, though imposing a duty on the P to serve for five years, did not impose a duty on the D
to employ P for five years. The cause of action for commissions was submitted to the jury, who
found a verdict for the P. The Appellate Division of the Supreme Court affirmed the trial court’s
judgement. Both P and D appeal. D on the ground that P should not have recovered anything,
and P on the ground that he did not recover enough.
Statement of facts: In May 1901, the P entered into an agreement with the D whereby P
agreed to only buy paint from the defendant and in exchange P would have the privilege of
handling D’s entire output. From May 1901 to April 1903, there was no agency between the two
parties. After P conformed to the agreement his customer’s began complaining about the quality
of D’s paint and P passed complaints on to D’s superintendent. D’s super assured P that if he
would keep track of the bad goods and try to reclaim the trade, the D would make it right with
him and repay him for any loss. There is not evidence of when this agreement was made. The P
says that he was made to understand that in return for his co-operation in developing this new
brach of D’s business his losses due to D’s defective goods would at some time be made good
from D’s coffers. The D denies ever saying anything to give P this understanding. P owed a
balance of $27,650.79 to D. P ceased to buy paint from D and became its agent under a contract
to serve for commission. Before this agreement was had, P claims, he had the understanding that
the entire balance minus about $5,200 or $5,300, would be cancelled to compensate him for the
loss which he had suffered. The P made a claim of loss. and the D listened in silence. In April
1903 the P entered in a contract of employment which provided that P “agrees to sell for the term
of 5 yrs. from the date hereof ...” and “In Consideration of the commissions inbefore provided to
be paid by the party of the second part, the party of the first part agrees to guarantee the payment
of all sales of goods made by him.” P was informed before K’s execution that any commissions
due him under it would be held back and applied in reduction of his indebtedness for the goods
which he had bought. By July 1903, the P paid D on account of the old debt $5,249.58, which is
all P said he owed. At that time he had earned commissions of about $4,000. In September 1903
P asked for said commissions and was told it was being applied in the reduction of the residue of
his debt. P again asked for his commissions when they amounted to $6,447.19 and again the D
refused to pay them and, according to P, refused to give him any orders.
Issues:
(1) Did trial court err in admitting the evidence to prove the extent of P’s losses because of
diverted trade given that P did not place before the jury the volume of his business with each
customer, and the circumstances tending to show the reason for the breaking off of their
dealings?
(2) Did the trial judge err in holding that the contract imposed no obligation on the D to employ
the P for 5 yrs and that at the D’s option it was terminable at will given that the the defendant not
only agreed to accept P’s promise to serve it for 5 yrs. by the sale of its goods, but also agreed to
pay him commissions on the sales of said goods?
Result on appeal: Reversed.
 52/107

Holding:
(1) Yes, trial court erred in admitting the evidence to prove the extent of P’s losses because of
diverted trade given that P did not place before the jury the volume of his business with each
customer, and the circumstances tending to show the reason for the breaking off of their
dealings. Thus verdict for the P cannot stand
(2) Yes, the trial judge erred in holding that the contract imposed no obligation on the D to
employ the P for 5 yrs and that at the D’s option it was terminable at will given that the the
defendant not only agreed to accept P’s promise to serve it for 5 yrs. by the sale of its goods, but
also agreed to pay him commissions on the sales of said goods. Thus dismissal of the second
cause was in error.
Doctrinal rationale:
(1) The burden rested on P to show by competent evidence the loss which he had suffered. When
defective goods are sold the measure of damages does not include the profits lost from the
vendee’s failure to resell them unless such loss is proved to have been within the contemplation
of the parties. Such losses would be recoverable it the vendor undertook to indemnify against
them; but they ought to be proved with reasonable certainty. P failed to satisfy that requirement.
P should have proved the premises and let the jury draw the conclusion. He proved the
conclusion and withheld the premises. In effect he stated his opinion as to the loss of profits
resulting from diverted trade.
(2) There may be a “promise” to serve without a promise to employ, but there can be no
“agreement” for service without mutuality of rights and duties. The word “agreement”
necessarily imports two parties. It is not merely a promise made by one party to the other, but it
is an agreement made by both and binding on both by every principle of law and morality
applicable to the construction of contracts. Since K was drafted by D it must be construed against
him in a manner he should have assumed the other party to understand.
Policy rationale: (1) Open price terms are necessary in the business world. (2)Moran didn’t
have a lawyer’s team and was a small business owner against a big corporation

Class Notes
- Outputs K: Manufacturer has security under the first contract, and if the manufacturer’s product
is good the seller would have a monopoly on that item and may be able to turn a high profit
- NO agency until April 1903: independent contractor; what’s the difference does this make?
- What does “silence” mean?
- This case diverged from United Press.
- T. Ct. said that there was no K from April to September 1903, but one could be proved. --> Ct.
finds that this was not quite right.
- Mutuality: Read the K favorably to the non-drafting party, “agreement” means there is a K. -->
determining intent
- There is nothing in United Press about agreement or interpreting K against the party who
drafted it. Difference is United Press was not about whether there was a K, but rather the scope
of damages. Moran finds that there is a K. Also in United Press, there was no intent to be bound;
however, here there was intent to be bound.
- P Lawyer’s argument leads judge to the Mutuality concept rather than United Press
- How can damages be computed here?
- What is the rule regarding price?
- What is the cause that drives Cardozo? The doctrine? The Policy?
 53/107

- Probably the policy:

- open price terms are necessary in the business world.
- Moran didn’t have a lawyer’s team and was a small business owner against a big
corporation
- Doctrine: Cardozo wants to change doctrine, but has to do it over time.

Judge Cardozo said that P probably had a right to commissions, but he didn’t make out the case
well enough (failed to prove correctly: give facts leading to conclusion and let jury conclude).

Lower court tried to submit formal K theory to allow recovery, but they also found that there was
no K. The commissions and schedules should have been under quantum meruit theory.

Reasons for confusion

- want to protect business interest, but not sure how --> reason not to become to restrictive
- not sure what United Press Court wanted in a binding contracts --> reason not to become to
open
- Lawyers aren’t informing the cts of the correct behavior in the mkt.
- many different kinds of facts in cases being presented

Cardozo is trying to make a distinction between what United Press did and what they said.

Why doesn’t Cardozo cite Wakeman v. Wheeler?

Difference in power is the difference between United Press and Moran (ie: equal footing) -->
fundamental notion of equality in contractual obligations.

In this case the presumption is that if one party is bound the other party is bound. The opposite is
true in United Press.

How could you argue that Moran is not inconsistent with United Press?
- Distinguish on the basis that United Press didn’t decide whether there was a contract, but the
extent of damages and this case decides whether there is a binding k. However there is still the
issue of damages in both cases

NOTE: What std does ct. set and does their ruling live up to that std?

Cardozo uses the cases in the lawyer’s arguments

 54/107

Case name & citation: Varney v. Ditmars

Statement of the case: Employee brought this cause of action against his former employer
for an alleged wrongful discharge to recover for the services under a formal employment contract
from November 7, 1911 to December 31, 1911, at $40 per week and for a fair and reasonable
percentage of the net profits of the employer’s business from February 1, 1911 to January 1,
1912.
Procedure: At the trial the employee was the only witness sworn as to the alleged contract and
at the close of his case the complaint was dismissed after the close of P’s case. The Appellate
Division affirmed the trial court’s judgment in favor of the defendant. The Plaintiff appeals.
Statement of facts: D is an architect employing engineers, draftsmen and other assistants.
The plaintiff is an architect and draftsman. In October, 1910 he applied to the D for employment
and said wanted wages of $40 a week. He was employed at $35 a week. The D told P and a third
party, “I am going to give you $5 more a week; if you boys will go on and continue the way you
have been and get me out of this trouble and get these jobs started that were in the office 3 yrs,
on the first of next January I will close my books and give you a fair share of my profits.”
Thereafter P was paid $40 a week. On Nov. 6, 1911, the night before the general election, D told
the employees that he wanted them to work on election day. P told D that he wanted to remain at
home to attend an election in the village where he lived. P took ill on election day and remained
at his house ill until Dec. 1, 1911. On Nov. 11, the D terminated P’s employment. After P
recovered he returned to work and told D that he was ready to continue his services under the
agreement. D denied the agreement and refused to permit P to continue his service. Thereafter P
received $50 for special work.
Issues:
(1) Whether P could recover for wages of $40 a week for the remainder of the year
(2) Whether P could recover for a fair and reasonable percentage of the net profits of employer’s
business
Result on appeal: Affirmed with costs.
Holding:
(1) P could not recover for wages of $40 a week for the remainder of the year.
(2) P could not recover for a fair and reasonable percentage of the net profits of employer’s
business.
Doctrinal rationale:
(1) Indefinite because the court cannot discern the term of engagement. There was nothing in the
contract specifying the length of service. For the validity of a K, the promise or agreement, of the
parties to it must be certain and explicit and that their full intention may be ascertained to a
reasonable degree of certainty. There must be neither vague, nor definite. (citing United Press)
(2) United Press was not intended to assert that a K of sale is unenforceable unless the price is
expressly mentioned and determined. A definite price is not necessary to make a K binding, even
so, a share of the defendant’s profits, is not only uncertain, but it is necessarily affected by so
many other facts that are in themselves indefinite and uncertain that the intention of the parties is
pure conjecture.
Policy rationale:
Additional Points: (Dicta) A reasonable price may be implied or reasonable and fair maybe
construed as market value in contracts for the sale of goods or for hire without a fixed price or
consideration.
 55/107

(Dissent) Cardozo concurs in the conclusion that profits were not to be included as an element of
damage. He did not concur however in the conclusion that P failed to make out a case of damage
to the extent of his loss of salary. The implication was that P’s employment should continue to
the end of the year when the books were to be closed.

Class Notes
Ct. looks to intention of the parties and to the business meeting.
How does ct. determine what a definite price is?
(Dissent) classify Ks according to intent and reasonable implications.

Makes United Press look like it applies to a specific case not a category of cases.

Dissent limits United Press saying that parties never intended to be bound
- says that each case should be decided based on specifics rather than a general rule
- says price may be determined by custom (parties, industry, type of K). --> signal to P to present
evidence of their claim.

Moving away from United Press

United Press --> Moran --> Varney(Majority) --> Varney(Dissent: Cardozo)--> Rubber(Custom
considerations)
 56/107

Case name & citation: Rubber Trading Co. v. Manhattan Rubber Manufacturing Co.
Statement of the case: A seller brought this action against the buyer to recover the profit
lost from a breach of contract, alleging that the buyer failed to complete K.
Procedure: P’s complaint first alleged a tender of full performance, D’s refusal to receive
them. Shortly before trial, it became apparent that this theory would not hold because P’s
October letter was a departure from the original K. P made no claim to the contrary. The trial
judge charged without objection that P had no right to demand stipulation that the goods were
satisfactory before delivery; that the insistence upon such demand invalidated the tender; and
that there had been no performance by P in the case, nor is one claimed. P amended its
complaint, and changed the theory of it’s action. It alleged that in October D wrongfully
repudiated the K, and notified P that it would thereafter perform the same, and that this
anticipatory breach made tender of the rubber needless. D’s announcement that withdrawal of the
goods from the warehouse must be w/o prejudice to their rejection afterwards, and the notice that
the discs delivered must be round were relied on as of repudiation. At trial the jury returned a
verdict for P, which the trial court entered as judgment. D appealed. The appellate court affirmed
the trial court’s judgment in favor of P. D appeals.
Statement of facts: D, a manufacturer of rubber, agreed to buy from P, an importer, fifteen
tons of rubber at $1 per lb.; delivery was to be made at the rate of about five tons a month in
September, October and November, and delivery of orders were to be sent to D when the rubber
was ready. Goods were to be billed on a credit of ten days. The first delivery under this K was
made in August, and was paid for in September, before it had been inspected. Upon inspection,
defects were discovered, and 7,900 lbs. returned with P’s consent. A second shipment arrived
from abroad in October. D’s president was notified of the arrival of the vessel, and was asked to
inspect the rubber while it lay in the warehouse or on the dock. He refused and said he would not
accept the shipment till the rubber reached D’s factory, where it could be carefully examined and
that D wouldn’t pay until and unless the rubber was satisfactory. P didn’t want the acceptance to
be postponed until it had been delivered to the factory. P wrote to D in October stating that it had
placed about 11,200 lbs. of rubber at the warehouse, which it tendered to D as the October
delivery under the K; requesting that D make further inspection of the rubber as soon ASAP;
instructing D to notify P when it would be convenient for D to make the inspection of the rubber
so that P could pace enough men as D’s disposal to enable it to make the examination quickly
and easily; and finally stating that delivery orders were ready to be handled as soon as D notified
P. D sent back word to forward delivery for inspection and if it’s quality was not right payment
would not be made. P retorted that the rubber must be approved at the warehouse, and that if the
shipment left the warehouse, it be acknowledgement of acceptance. Other shipments arrived
from abroad in November. Still neither P nor D yielded. Each notified the other that the K had
been broken. P sold part of the rubber at a reduced price; the rest it retained.
Issues: Did the appellate court err in affirming a judgment in favor of P on the ground that D
wrongfully repudiated the K by his announcement that withdrawal of the goods from the
warehouse must be w/o prejudice to their rejection afterwards given that P did not rescind the K
for D’s anticipatory breach, but rather rescinded for D’s rejection of a tender which imposed an
unauthorized condition?
Result on appeal: Reversed and a new trial granted.
Holding: Yes, the appellate court erred in affirming a judgment in favor of P on the ground that
D wrongfully repudiated the K by his announcement that withdrawal of the goods from the
warehouse must be w/o prejudice to their rejection afterwards given that P did not rescind the K
 57/107

for D’s anticipatory breach, but rather rescinded for D’s rejection of a tender which imposed an
unauthorized condition.
Doctrinal rationale: Even though D was at fault, the K survived unless P gave notice of its
election to treat it as abandoned. P’s October letter did not abandon the old K, but rather asserted
rights under it. P breached the K w/o regard for D’s breach, thus the K still stands and remains
alive as much for the benefit of the buyer as for the benefit of the seller. If D never retracted its
unlawful claim of right, the like is true of P. Both are equally chargeable with wrong.
Policy rationale:
Additional Points: Implies terms according to industry custom and reasonable practice (goes
beyond the four corners of the K).

Class Notes
- Custom between parties was to be inspected at the warehouse or on dock; these inspections are
for patent defects, once at the factory the rubber is inspected for latent defects, if such defects
were found the goods may have been returned.
- Price of rubber dropped in September.
- On remand, it is most likely that D will win, but will not receive any damage
- NOTE: Attempt by seller to induce buyer to live up to the contract does not waive right to sue
for anticipatory breach. (Cases citing to Cardozo)
- Notion of unfairness because the buyer was the first to repudiate the K.
- Cardozo contrued K in terms of custom, action of the parties, and intent of the parties beyond
the express terms of the K.
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Case name & citation: Wood v. Lucy, Lady Duff Gordon

Statement of the case: An agent sued “a creator of fashions” for damages sustained from
her breach of contract.
Procedure: P filed a complaint against D for breach of K. D demurred, alleging that there was
no K because there was no consideration. The trial court denied D’s motion for judgment on the
pleadings. D appealed. The appellate court reversed the trial court’s judgment and granted said
motion. P appeals.
Statement of facts: D is a popular fashion designer. Clothing manufacturer’s pay D for her
certificate of approval. Clothing issued in her name have a new value in the public mind. D
employed P to help her turn this vogue into money. P possesses a business organization adapted
to placing endorsements. P was to have the exclusive right, subject to D’s approval, to place her
endorsements on the designs of others and to place D’s own designs on sale or to license and
market them. In return, D was to have 1/2 of all profits and revenues derived from any contracts
he might make. P also promises that he will account for all moneys received by him, and that he
will take out all such patents and copyrights and trademarks as may in his judgment be necessary
to protect the rights and articles affected by the agreement. The K was to last for one yr. P says
that he kept the K on his part and D broke it by placing her endorsement on clothing without his
knowledge and withholding the profits. The agreement of employment is signed by both parties.
Issues: Did the appellate court err in reversing the trial court’s decision in favor of P and
holding that the agreement of employment lacks the elements of a contract because P does not
bind himself to anything, given that D’s sole compensation for the grant of exclusive agency is to
be one half of all the profits resulting from P’s efforts and given that P promised that he would
account for all moneys received by him, and that he would take out all such patents and
copyrights and trademarks as may in his judgment be necessary to protect the rights and articles
affected by the agreement?
Result on appeal: Reversed.
Holding: Yes, the appellate court erred in reversing the trial court’s decision in favor of P and
holding that the agreement of employment lacks the elements of a contract because P does not
bind himself to anything, given that D’s sole compensation for the grant of exclusive agency is to
be one half of all the profits resulting from P’s efforts and given that P promised that he would
account for all moneys received by him, and that he would take out all such patents and
copyrights and trademarks as may in his judgment be necessary to protect the rights and articles
affected by the agreement.
Doctrinal rationale: A promise may be lacking, and yet the whole writing may be “instinct
with an obligation” imperfectly expressed. If that is so, there is a contract. The acceptance of
exclusive agency was an assumption of its duties. Without an implied promise the transaction
cannot have such business efficacy as both parties must have intended that at all events it should
have. In determining the intention of the parties, the promise has value. P’s promise to pay D 1/2
of the profits and revenues resulting from the exclusive agency and to render accounts monthly,
was a promise to use reasonable efforts to bring profits and revenues into existence.
Policy rationale: Preservation of parties intention to form a binding contract.

Class Notes
- Failure to include the “best efforts clause” in the Lucy contract show that Wood probably did
not intend to make K binding --> Nothing explicit in K to say what Wood’s obligations to Lucy
are.
 59/107

- Why should Wood be protected from not putting any obligations in the K that he had to do
anything in the K he drafted.
- implication of consideration even though there is nothing in the contract itself.
- nothing in the contract that says the D will use his best efforts to bring in contracts
- Stotz compared the agent in this case to a jobber [like the jobber in schlegel(?)]
- does not construe the contract against the drafting party
- makes no notice of the word “agreement”
- Cardozo looks at the contract in common sense way
- doesn’t apply in fact, but in law according to how people in the commercial community
behave.
- Close to Wakeman v. Wheeler; they find a binding contract even thought there are several
indefinite terms.
- Moving away from United Press [freezing United Press, but do not overturn it]
- Vote in this case 4:3, Cardozo in Maj.
 60/107

Case name & citation: Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory
(I)
Statement of the case: An action brought by a jobber/buyer against a manufacturer/seller
to recover damages for the manufacturer’s breach of contract.
Procedure: Trial court entered judgment for P and awarded damages. D appeals
Statement of facts: D and P entered into a K whereby P would purchase glue from D at a
fixed price of 9c. per lb, and deliveries would be made to P per P’s orders during the year. D
drafted the contract and P signed it. This agreement was accepted in writing by P and concededly
constitutes a contract between them. The average for January to September was a little less than
5,000 lbs. In October through December, P ordered an aggregate of 126,100 pounds. Between
October 30th and December 26th, P ordered the delivery pursuant to the contract of 79,891 lbs of
glue which P needed to meet its requirements and the D did not deliver the same. P in
anticipation of the performance of the contract had sold 42,000 lbs of this glue and as it could no
longer be bought on the open market it lost its profits on such sales. The other damage sustained
by P pursuant to D’s breach brought P’s damages up to a total of $6,431.28. P was a jobber
exclusively, handling glues, shellacs paints and chemicals. It bought only for retailing to the
trade and did not manufacture or use any of these articles in its own business. P dealt in none of
the glue from its own stock but filled the orders of its customers as it received them by calling
upon D to deliver goods under the K. P’s “requirements” of special BB glue for the year 1916
were the amounts of orders received therefor from its customers to whom its salesmen had sold
such goods. This method of doing business, and the meaning of the term “requirements” as used
in the K, were concededly well known to D, which had therefore done business under the same
system with P, to which it had sold goods as far back as 1910. No question arose between the
parties as to the meaning of the K during the year 1915 and P’s requirements, evidenced by
orders from its customers were filled without question during that year. Nor did any question
arise as to the meaning or validity of the K for the year 1916, until the price for this special glue
rose so high that the K became very valuable to P and entailed a corresponding loss of profit to D
which it could have made by selling goods elsewhere. P took advantage of the fixed price and D
subsequently did not perform K. D never repudiated K or disavow the same, or object to, or
question, the good faith of the orders. P repeatedly demanded performance of the K and D’s
representative continued to promise to ship glue to cover the requisitions and said that glue was
on the way. Instead of repudiating the the K, D tried to place an arbitrary limitation on it by
saying that it would give P 10% more than it had purchased during 1915 (about 40,000 lbs). D
never notified P to cease taking orders from its customers for delivery of this glue or notify P that
it would not live up to its K for the existing orders.
Issues: Was the trial court correct in rendering judgment for the plaintiff and awarding
damages, holding that the K was mutual and enforceable and that D had no right to limit the
amount which P should receive under the K?
Result on appeal: Affirmed
Holding: Yes, the trial court was correct in rendering judgment for the plaintiff and awarding
damages, holding that the K was mutual and enforceable and that D had no right to limit the
amount which P should receive under the K.
Doctrinal rationale: A rising mkt could have been guarded against by D by inserting in the K
a clause fixing the maximum amt. which P might be entitled to receive thereunder; but instead D
made an absolute K at a fixed price for the entire year to deliver as much glue as P might be able
to sell to customers during that period.
 61/107

Both parties acted with full knowledge of their respective methods of doing business and of the
uncertain and fluctuating demand for glue which might come from P’s customers and which
must naturally to some extent be dependent upon the mkt price. They entered upon this K with
their eyes open to all the conditions existing, or which might possibly arise, and with the
intention of being mutually bound thereby.

The mere uncertainty as to the amount which might be required to be furnished under the K is no
reason why it was a mutual one nor does it make the contract unenforceable
Policy rationale:
Additional Points: (Dissent) The alleged agreement upon which the cause of action was
predicated lacked mutuality of obligation, and if the construction put upon the K by the majority
of the court be accepted the K was too indefinite and uncertain to constitute a valid and binding
K between the parties to this action.

Class Notes
- P didn’t bind himself to anything explicitly in the K. However, D was the one that drafted the K
- If D had considered the idea that the mkt price would increase he might have protected himself
in K.
- Why should the court step in and protect parties that could protect themselves
- Arguments
- Lack of mutuality
- “requirements” is too indefinite.
 62/107

Case name & citation: Oscar Schlegel Manufacturing Co. v. Peter Cooper’s Glue Factory
(II)
Statement of the case: The distributor brought this action against the manufacturer to
recover damages for breach of contract, alleging the neglect of and refusal of D to make certain
deliveries, and demanding judgment for the damages sustained.
Procedure: D’s answer put in the same material allegations as the complaint. At the trial a jury
was waived, and the trial proceeded before the trial justice. The judge entered judgment for P and
awarded P a substantial amount. D appealed. The Appellate Division affirmed the trial court’s
judgment. Two of the justices dissented. D appeals.
Statement of facts: The parties entered into a written agreement by which D agreed to sell
and deliver to P and P agreed to purchase fron the D all its “requirements” of special BB glue for
the year 1916, at the price of 9c per lb. At the bottom of the letter setting forth the terms and
obligations of the agreement, P’s president wrote “Accepted,” and returned it to D. P was not
involved in manufacturing at the time. It was simply a jobber, selling glue to customers.
Issues: Did the trial court err in entering judgment for the P, holding that the alleged K did not
lack mutuality and was therefore valid given that the contract lacked consideration and that P
was not bound to do anything more than to pay nine cents a pound for the glue it might order?
Result on appeal: Reversed.
Holding: Yes, the trial court erred in entering judgment for the P, holding that the alleged K did
not lack mutuality and was therefore valid given that the contract lacked consideration, that P
was not bound to do anything more than to pay nine cents a pound for the glue it might order.
Doctrinal rationale: Mutual promises or obligations of parties to contract, either express or
necessarily implied, may furnish requisite consideration. Unless both parties to a contract are
bound, so that either can sue the other for breach, neither is bound. (Application)The lack of
consideration does not bind P to order from D or not to order from D’s competitors, so D is not
bound to furnish P’s orders.
Policy rationale:
Additional Points: (Dicta) There are certain contracts in which mutual promises are implied.
In cases of this character, while the Q of the article contracted to be sold is indefinite,
nevertheless there is a certain std. mentioned in the agreement by which such Q can be
determined by an approximately accurate forecast. (Application) In the K under consideration
there is no std mentioned by which the Q to be furnished can be determined with any
approximate degree of accuracy.
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Case name & citation: United States Rubber Co, v, Silverstein

Statement of the case: P sued D for a breach of contract to recover damages for default of
payment, alleging that the contract guaranteed to cover P’s claim against D’s son.
Procedure: The trial court found that the contract was ambiguous and left its meaning to the
jury. The Appellate division reversed, and dismissed the complaint. P appeals.
Statement of facts: D is a merchant. His 2 sons, Louis and Moses, are also merchants. Louis
began business in April 1914. Moses began business in July. P’s salesman visited D in May of
the same year and D stated that he would be good for any sales P might make to Louis. Moses
was not included in the promise since he wasn’t in business yet. P made sales to Louis, charging
them to D and made sales to Moses, charging them directly to Moses. In October, D wrote a
letter telling P to send Louis his own bills but also stating, “...They do business themself, and
therefore send them separate statements, but I am good for what they buy.” P interpreted this
letter to be a guaranty of sales to Moses and gave credit on that basis. Default in payment
followed.
Issues: Did the appellate court err in reversing the trial court’s decision to allow the jury to
determine the contract’s meaning and dismissing P’s complaint, given the ambiguous use of the
pronoun “they” and the several possible meanings that could be given it?
Result on appeal: Reversed.
Holding: Yes, the appellate court erred in reversing the trial court’s decision to allow the jury
to determine the contract’s meaning and dismissing P’s complaint, given the ambiguous use of
the pronoun “they” and the several possible meanings that could be given it.
Doctrinal rationale: The promise, if uncertain, was to be taken in the sense in which the
promisor had reason to suppose it was understood by the promisee. The jury were to fix the
meaning in light of all the circumstances. We cannot say that the meaning chosen is without
basis in the evidence.
Policy rationale:

Class Notes
- Cardozo implies that he doesn’t believe that “they” meant what it was said to mean
- Different than United Press, treats the dispute as a question of fact for the jury rather than a
question of law.
 64/107

Case Name: Heyman Cohen & Sons, Inc. v. M. Lurie Woolen Co.
SoC: Buyer sued seller to recover damages for a breach of contract under which P was given the
privilege to confirm more of the good for sale if D could get more, alleging that upon exercise of
this privilege, D withheld 500 pcs.
Procedure Below: D moved for judgment on the pleadings. Trial court denied D’s motion. D
appealed. Appellate Division reversed the trail court’s decision and granted D’s motion fro
judgment on the pleadings. P appeals.
Facts: P and D entered into a contract whereby P agreed to buy and D agreed to sell 200 pcs of
tricotine at $3.02½ per yard and P was given the privilege to confirm more of the good if D
could get more. The 200 pcs were delivered and paid for. P exercising its option demanded as
much more as D could get. D confirmed the exercise of the option, but only delivered 16
additional pcs, saying that it couldn’t get anymore, when in fact it had gotten 500 pcs which it
withheld.
Issue: Did the Appellate court err in granting D’s motion for judgment on the pleadings for a
lack of consideration for the concession of an option?
RoA: Reversed.
Holding: Yes, the Appellate court erred in granting D’s motion for judgment on the pleadings
for a lack of consideration for the concession of an option.
Doctrinal Reasoning: There was no lack of consideration for the concession of an option.
The privilege to order more is coupled with the promise and obligation to accept a stated
minimum. D is bound unless its promise is to be ignored as meaningless. Indefiniteness must
reach the point where construction becomes futile.
Policy Reasoning: The defendant was conducting business in bad faith and more importantly
the idea is to preserve the intention of the parties to form a binding contract, by applying law in
a way that best fits the way the business world actually operates.
Additional Points: (Dicta) Cardozo limits the decision in Schlegel by narrowing its scope and
distinguishing it from the instant case.

Class Notes
Buries United Press
NOTE: Policy driven case
- There is nothing in the facts of the case that say who drafted the the contract
- Finding out how things work in facts and apply it in legality
- Close to Wakeman v. Wheeler: No definite terms, but the court still found a contract.
 65/107

Case Name: St. Regis Paper Co. v. Hubbs & Hastings Paper Co.
SoC: Seller of paper sues buyer for a printing company for a breach of contract to recover
damages for the unpaid balance on the sale of paper.
Facts: D and P entered into a contract whereby D agreed to buy and P to sell 4,500 tos of paper
a year for two years from January 1, 1919. the price for the first three months was to be $3.77 per
hundred pounds, “price for the balance of the year to be fixed by mutual consent. In the event
that the parties to this agreement shall fail to arrange a price for any quarter before the expiration
of the preceding 3 months, this contract, in so far as it pertains to delivery over the unexpired
period shall terminate. D entered into a similar contract as a seller to sell to a publisher for the
price of $4.10 per hundred pounds. In the last quarter of 1919 P refused to agree with D on a
price for the first quarter of 1920, and finally quoted a price so high that publishers could not
agree on it with D. In so doing P acted arbitrarily for the purposes of terminating the contract,
depriving D of its prospective profits on the transaction and placing the business in the hands of
others.
Procedure: D counterclaimed to recover damages for the commissions to which it would have
been entitled, alleging that P after selling D paper for some time, repudiated its agreement,
delivered no more paper and refused to pay D said commissions. The trial court submitted to the
jury the question of whether P acted in good faith in trying to fix the price of paper. The jury
returned a verdict for D. The trial court set aside the jury verdict in favor of P. D appealed. The
appellate court reversed the trial courts ruling, granted a new trial, and directed reinstatement of
said verdict.
Issue: Did the appellate court err in reversing the trial court’s decision and holding that the
contract implied good faith and required the exercise for an honest attempt to agree on the price
of future deliveries; that the case was properly submitted to the jury and the verdict of the jury
should be reinstated?
RoA: Reversed.
Holding: Yes, the appellate court erred in reversing the trial court’s decision and holding that
the contract implied good faith and required the exercise for an honest attempt to agree on the
price of future deliveries; that the case was properly submitted to the jury and the verdict of the
jury should be reinstated. Plaintiff exercised its legal right in refusing to be bound by the
contract. Defendant’s counterclaim should have been dismissed
Doctrinal Reasoning: Good faith does not require the contracting parties to do more than
they are expressly or impliedly bound by their contract to do. When a legal act is reduced into a
single memorial, all other utterances of the parties on the topic are legally immaterial for the
purposes of determining what are the terms of their act. (Application) The terms of the contract
are so indefinite as to have no legal significances; they amount to nothing more than an
agreement to make a future agreement; an agreement to agree is not enforceable.
Policy Reasoning: Protecting freedom to contract
Additional Points: (Dicta) When dealers advertise themselves as agents or exclusive agents
for certain manufactured articles, it does not follow that they are selling on a commission for the
manufacturer.

Class Notes
- Is D a buyer or a broker (the jury found that D was a broker)
- There are ambiguities (“agent” and “commission”) and collateral correspondence (the court
ignores this).
 66/107

- The contract is not binding because it is an agreement to agree (indefinite after 3 months)
(NOTE: Varney, United Press)
- Why did the court go through the analysis of the contract itself if it was not binding (ie: agent,
and commissions terms and the termination clause?
 67/107

Case name & citation: Sun Printing Pub. Ass’n v. Remington Paper & Power Co.
Statement of the case: This is an action by a buyer against a sell to recover damages
resulting from a breach of contract to sell paper.
Procedure: The defendant demurred. The trial court denied the defendant’s judgment on the
pleading. The defendant appeals.
Statement of facts: P agreed to buy and D agreed to sell 1,000 tons of paper per month to P
from September 1919 to December 1920. The price for the shipments in september 1919 was to
be $3.73 3/4 per 100 pounds and for the shipments in October, November and December 1919
was $4 per 100 pounds. For the balance of the period of this agreement the price of the paper and
the length of terms for which the price would apply would be agreed upon by the parties 15 days
before the expiration of each period for which the price and the length of term was previously
agreed upon. Said price was to be no higher than the contract price for newsprint charged by the
Canadian Export Paper Company to the large consumers. Before the time came when the parties
were to agree on a new price and the terms of its duration, D gave notice that the contract was
imperfect, disclaimed for the future obligation to deliver. P took the ground that the price was to
be ascertained by resort to an established standard. P made demand that during each month of
1920 D deliver 1,000 tons of paper at the contract price for newsprint charged by the Canadian
Export Paper Company to the large consumers. The demand was renewed every month till the
expiration of the year.
Issues: Was the defendant bound by the contract given that the it was incomplete in respect of
price and term of price (time)? Did case sufficiently state a cause of action?
Result on appeal: Reversed
Holding: No, the defendant was not bound by the contract given that the it was incomplete in
respect of price and term of price (time). Case did not sufficiently state a cause of action.
Doctrinal rationale: Leaving the price term unfilled rendered the contract “an agreement to
agree.” D exercised its legal right when it insisted that there was need of something more. The
writing signed by the parties calls for an agreement as to time. The complaint concedes that no
such agreement has been made. The result is the failure of the contract. An agreement to agree is
not binding or an enforceable contract.
Policy rationale: Lawyers have a duty to offer more facts to the court so that the court can
make a judgment on the ambiguities, but in this case the lawyers didn’t do their jobs.
Additional Points: (Dissent) There is reason to believe that the parties supposed they were
making a binding contract; that they fixed the terms by which one was required to take and the
other to deliver; that the Canadian Export Paper Company price was to be the highest that could
be charged in any event. These things being so, the court should be very reluctant to permit a
defendant to avoid its contract.

Class Notes
- The dissent in this case uses all cases in which Cardozo wrote an opinion to contradict
Cardozo’s opinion this case. (Wakeman, Wood v. Duff Gordon, Moran, U.S. Rubber v.
Silverstein)
- Did not impose good faith obligation because the lawyers didn’t lead what the Canadian Export
Price was meant to be.
 68/107

Part III: The Concept at Work (Warranty)

Case Chart
(CC)..................................................................................................................
71

Case
Briefs.................................................................................................................
..............
People v.
Clair...................................................................................................................
....77
Race v.
Krum..................................................................................................................
.......78
Rinaldi v. Mohican
Co..........................................................................................................79
Canavan v. City of Mechanicville
(1)...................................................................................80
Canavan v. City of Mechanicville
(2)...................................................................................81
Horton v. Town of North
Attleborough.................................................................................83
Stubbs v. City of
Rochester ..................................................................................................85
Geddling v.
Marsh................................................................................................................
86
Hoisting Engine Sales Co. v.
Hart ......................................................................................88
Chysky v. Drake Bros.
Co. ..................................................................................................89
Temple v.
Keeler................................................................................................................
...90
J. Aron & Co. v.
Sills ..........................................................................................................91
Redmond v. Borden’s Farm Products
Co. ..........................................................................91
Vaccaro v. Prudential Condensed Milk
Co.........................................................................92
Ryan v, Progressive Grocery Stores,
Inc. ...........................................................................92
Gimenez v. Great Atlantic & Pacific Tea
Co. ....................................................................93
McSpedon v.
Kunz..............................................................................................................94
 69/107

Blessington v. McCrory Stores

Corp. ................................................................................95
Bowman v. Great Atlantic & Pacific Tea
Co. ....................................................................96
Mouren v. Great Atlantic & Pacific Tea
Co. .....................................................................96
Greenberg v.
Lorenz...........................................................................................................97
 70/107

Case Name & SoC Holding/Rule Significance on the Law

People v. Clair
SoC: The state brought suit against the
proprietor of the hotel to recover
penalties for the sale of game in
violation of Section 180 of the
Conservation Law.
FACTS: The proprietor served only
partridge given to him to his guests who
paid a fixed rate for room and board at
his hotel in the dining room.
If in a hotel where meals are served a la Defines who the seller is, what a sale is,
carte a partridge is ordered prepared and when the seller should be held
and served as food and paid for as such strictly liable.
it would constitute a sale within the
meaning of the statute. The facts of this
case show that the partridges were sold
as a matter of law and within the
prohibition of the statue.

Race v. Krun
A patron sued the drug store manager to
recover damages for personal injuries
from the consumption of poisonous ice
cream sold by the manager, alleging
(1)that the manager was negligent in
selling the cream and that (2)the
manager warranted the cream to be fit
for human consumption.
Accompanying all sales by a retail Food must be for immediate use
dealer of articles of food for immediate
use there is an implied warranty that the
same is fit for human consumption.
Key fact: drug store owner made and
prepared food himself therefore there is
an implied warranty for fitness for
human consumption (ie: the dealer must
be the preparer of the food).

Warranty of fitness implied

Rinaldi v. Mohican Co.
A buyer brought an action against the a
market owner to recover damages
resulting from the consumption of
infested meat on the theory of implied
warranty.
No implied warranty unless the buyer
expressly or by implication makes
known to seller purpose of the purchase
and unless the buyer relies on the
seller’s skill or judgment.
If buyer has examined goods and
should have the defect, there is no
warranty.
Mere purchase of article ordinarily used
for human consumption does by
implication make known to seller
purpose for which the article is
required.
Difference between common law and
statute is you have to make known the
to seller purpose for which good is used
and by implication rely on the seller’s
judgment.
Personal property law: Broader because
no it no longer applies to food only, but
narrower because buyer has the burden
to prove seller had opportunity to
inspect.

Warranty of fitness implied

Canavan v. City of
Mechanicville (1&2)
Household sues city to recover damages
for getting typhoid fever from
contaminated water provided by the
city, alleging that the city broke its
implied warranty on the water to the
damage of the household.
(1) There is no sale of goods
(2) There is a sale of goods, but it does
not fall under the statute
Taking water from the pipes does not
make known to the seller the purpose
for which the water is to be used
because it is used for several purposes.
No warranty of fitness implied
Ct. implies that seller must have an
effective opportunity to inspect goods.
This case is different from Rinaldi in
that pork is only used for consumption
and water is not.

Case Name & SoC
Horton v. Town of North
Attleborough
The buyer brought this action of
contract or tort against the seller to
recover damages for breach of implied
warranty and negligence.
Stubbs v. City of Rochester
Consumer brought this negligence
action against supplier to recover
damages sustained by the plaintiff due
to drinking contaminated water from
the supplier’s domestic service.
Geddling v. Marsh
A retailer sued a manufacturer to
recover damages for persona injuries
caused by the bursting of a bottle of
lime juice and soda supplied to her by
the manufacturer.
Hoisting Engine Sales Co. v.
Hart
The lessor of defective equipment sued
the lessee of said equipment to recover
the rental reserved in the lease.
71/107
Holding/Rule Significance on the Law
The sales act does not apply to the Case is similar to Canavan, but reaches
furnishing of water supply through a completely different conclusion.
pipes (Canavan)
If there is a warranty under the
circumstances of this case, it is a
warranty that when water becomes the
property of the plaintiff it will be
reasonably fit to be conducted through
one hundred forty-five feet of lead pipe
into the house and then to be drunk.
Warranty of fitness implied
When there are several possible causes Necessary evidence to prove unfitness
of an injury for one or more of which in negligence action.
the defendant is not responsible, the
plaintiff cannot recover without proving
that the injury sustained was wholly or
in part a cause for which defendant was
responsible; however, when a party
injured establishes facts from which it
can be said with reasonable certainty
that the direct cause of the injury was
the one for which the defendant was
liable, that party had complied with the
“spirit” of the rule.
Where goods are a prong of the original Implied warranty extends to goods
contract for sale rather than an extra supplied as well as sold under K for
contract for bailment there is an implied sale.
warranty for the goods sold themselves
and also to goods supplied under the
same contract.
Warranty implied
There is an implied warranty in the Implied warranty extended to not only
hiring of property or bailment of certain the sale of goods, but also the lease of
kinds of property. The owner of a goods.
chattel which he lets out for hire is
under the obligation to ascertain that
the chattel so let out by him is
reasonably fit for the purpose for which
it is expressly let out or for which, from
its character, he must be aware it is
intended to be used: his delivery of it to
the hirer amounts to an implied
warranty that the chattel is in fact as fit
and suitable for that purpose as
reasonable care and skill can make it.
Warranty implied

Case Name & SoC
Chysky v. Drake Bros. Co.
A waitress brought this action against a
cake manufacturer to recover damages
for injuries sustained when she ate a
piece of cake with a nail baked into it
that her employer had bought from said
cake manufacturer, upon a theory of
implied warranty that cake was fit for
human consumption.
Temple v. Keeler
A restaurant patron brings this action
against a restaurant owner to recover for
loss and damage alleged to have been
caused by sickness resulting from the
consumptions of fish in the owner’s
restaurant which was unwholesome and
unfit for human food, whereby the
patron became ill from ptomaine
poisoning.
J. Aron & Co. v. Sills
A buyer brought this action against a
retailer to to recover for breaches of
warranties in connection with the sale
of canned condensed milk that became
fermented, unfit for human
consumption and commercially useless.
Redmond v. Borden’s Farm
Products Co.
An infant brought this action against the
manufacturer to recover for personal
injuries alleged to have been sustained
as a result of the manufacturer’s
negligence, alleging that the infant was
injured by broken glass contained in a
bottle of milk that passed into her
mouth while she was drinking the milk.
72/107
Holding/Rule Significance on the Law
A manufacturer or seller of food or Implied warranty limited to contracting
other articles of personal property, is party (buyer); there must be privity of
not liable to 3rd person, under implied contract for there to be an implied
warranty, who have no contractual warranty
relations with him, because privity of
contract does not exist between the
seller and such 3rd persons, and unless
there be privity of contract, there can be
no implied warranty.
No warranty implied.
Where a customer enters a restaurant, Implied warranty extended to food
receives, eats and pays for food, served by restaurant owners.
delivered to him on his order there is an
implied warranty that the food is
reasonably fit for human consumption.
The owner of a restaurant sells the food
which he provides for his guests. The
facts in this case are very similar to
those in Race v. Krum where it was
found that there was an implied
warranty.
Apart from Race v. Krum the court
would still be compelled to reach the
same decision based on the decision in
People v. Clair for what constituted a
sale of goods
Where good is not fit for human Implied warranty of fitness = implied
consumption and the seller knows the warranty of merchantability
purpose for which the good are required
it does not comply with implied
warranty of merchantability.
Person cannot recover where there is no Privity does not extend to infants whose
privity of contract. mothers purchase milk for them.
No privity = no implied warranty

Case Name & SoC
Vaccaro v. Prudential
Condensed Milk Co.
A married woman brought this breach
of implied warranty action against the
manufacturer of milk to recover
damages alleged to have been sustained
by her by reason of having partaken of
milk that was in an unwholesome
condition.
Ryan v, Progressive Grocery
Stores, Inc.
A husband brought this action for
breach of warranty against the grocer to
recover damages for injuries sustained
when he, through his wife, who acted as
his agent bought a loaf of bread from
said grocer that had a pin concealed in it
which hurt his mouth.
Gimenez v. Great Atlantic &
Pacific Tea Co.
Wife brought an action for breach of
warranty and negligence and husband
brought a breach of implied warranty
action for loss of consortium and
medical expenses against the retailer for
injuries sustained by the wife from
ingesting crab meat, bought from the
retailer that contained a deleterious
substance.
McSpedon v. Kunz
The buyer brought this breach of
implied warranty action against the
retail seller, the distributor, and the
manufacturer to recover damages for
injuries alleged to have been sustained
by the buyer through sickness
contracted by her from eating pork
infested with trichinae.
Policy driven case.
73/107
Holding/Rule Significance on the Law
In the absence of any evidence to the There is no privity of K for a wife who
contrary, there is the presumption that is acting as the agent of her husband.
the moral and legal obligation on the
part of the husband to support his wife
and family is being carried out. Implied
warranty does not extend to the wife
because was acting as an agent for her
husband; thus there was no privity of K
between her and the manufacturer.
No implied warranty
There are times when a warranty of Where there is dual warranty, recovery
fitness has no relation to a warranty of may be based on either theory
merchantability and times when they
coexist and recovery may be founded Narrowed warranty because buyer must
on either rely on seller’s judgment.
Loaves baked with pins in them are not
of merchantable quality. Relies in the
precedent set in J. Aron & Co. v. Sills.
Damages for breach of of warranty of
merchantable quality is more than the
price of good where the dealer had
notice from the nature of the transaction
that the bread was to be eaten
A husband not recover under breach of Wife is no longer an agent, but a
implied warranty where the wife is the purchaser with a contractual
purchaser because he lacks privity. relationship, and husband does not have
privity. (Change in the treatment of
Breach of implied warranty for wife. women)
No Breach of implied warranty for
husband.
The sale of pork that passes Product is merchantable if it may be
government inspection, but is not fit for wholesome if used as intended by
human consumption constitutes a manufacturer.
breach of implied warranty where there
are means available to make the meat
safer for the consumer.
Rinaldi: On every such sale of food by
the dealer for immediate human
consumption there is an implied
warranty of its wholesomeness.
Consumer’s know nothing about the
danger lurking in meats or the requisite
heating point to destroy parasites, and
must rely on the grocer, the butcher and
the slaughterer to sell them wholesome
food.

Case Name & SoC
Blessington v. McCrory Stores
Corp.
Father sues department store on behalf
of his infant son for breach of implied
warranty of fitness for use to recover
for the injuries and pain and suffering
of his son sustained from burns he
suffered when a cowboy suit he was
wearing that his mother bought from the
defendant department store came into
contact with a flame and ignited.
Policy driven case.
Bowman v. Great Atlantic &
Pacific Tea Co.
Victim, who shared expenses with the
buyer for food, brought a breach of
implied warranty action against the
grocer to recover damages for injuries
sustained when she used oil, bought by
the buyer from the grocer, that
contained a dead mouse, alleging that
because the she and the buyer shared
expenses, the buyer was acting as her
agent when she purchased the oil and
therefore there was privity between the
victim and the grocer to sustain a cause
of action for breach of implied
warranty.
Mouren v. Great Atlantic &
Pacific Tea Co.
Action bought by husband and wife
against the retailer to recover damages
for breach of warranty and for
negligence, alleging that the residue
from grinding of pork had been allowed
to mix with the beef they had
purchased, and that was the source of
their illness.
74/107
Holding/Rule Significance on the Law
Although a breach of a duty may rest NOTE: wife was the purchaser, and
upon, or be associated with, a tortious husband bought suit on behalf of the
act, it is independent of negligence, and infant
so such a cause of action gets the
benefit of the 6 year limit as being on Neither husband, nor infant had privity,
an implied contract obligation or but court did not agree that the action
liability. should have been bought in negligence.
While an action for breach of implied The court did not dismiss the claim for
warranty of fitness may involve, lack of privity.
incidentally, some showing of
negligence, the contract breached is not
merely one to use due care, but it is a
separate (implied) contract of guaranty
that the goods are fit for the purpose for
which they are sold and bought. Proof
of negligence is unnecessary for
recovery in such a suit.
There may be a breach of implied
warranty.
Where the contract is negotiated by Moves away from privity requirement
another as agent of plaintiff, its
warranties may be enforced by plaintiff. Agency theory is not confined to
husbands and wives.
There may be an implied warranty
A prima facie case has been established An individual may act as both principle
for a breach of implied warranty, and as and agent; in this case, it was the
a matter of law, the plaintiff wife may husband.
recover for said breach.

Case Name & SoC
Greenberg v. Lorenz
The infant plaintiff and her farther sue a
retail food dealer for damages for
breach of alleged warranties of fitness
and wholesomeness for injuries
sustained when she ingested salmon
from a can bought from the retailer that
contained some pieces of sharp metal.
75/107
Holding/Rule Significance on the Law
It is not just or sensible to confine the Extends the implied merchantability to
warranty’s protection to the individual the household family
buyer. At least as to household food
and goods, the presumption should be
that the purchase was made for all
members of the household.
Protecting the consumer: Members of
household, particularly children cannot
protect themselves.
 76/107

Case name & citation: People v. Clair

Statement of the case: The state brought suit against the proprietor of the hotel to recover
penalties for the sale of game in violation of Section 180 of the Conservation Law.
Procedure: Defendant moved to dismiss. Trial court entered judgment in favor of the
defendant and dismissing the complaint. The P appeals. The appellate court affirmed. The P
appeals.
Statement of facts: A confidential agent of the conservation commission of the state of New
York and a game protector employed by the commission stayed at D’s hotel. D did not know that
these men were employed by the conservation commission. After lunch, the D brought two dead
partridges from the kitchen and said to one of the guests that the partridges had been given to
him and that he was going to serve them at Dinner that night and did so. The next morning the
employees of the commission departed paying $15.50 each for their board and room. Section 180
of the Conservation law provides “The dead bodies of birds belonging to all species or sub-
species, native to the state, protected by law, or belonging to any family, any species or
subspecies of which is native to this state and protected by law shall not be sold, offered for sale,
or possessed for sale for food purposes within this state whether taken within or without this
state...” Partridges are native to this state.
Issues: Did the appellate court err in affirming the trial court’s judgment in favor of the
defendant thereby holding that the serving of partridges by the defendant as a part of the meal
furnished by him and paid for by his guests as stated did not constitute a sale of said partridges
for food purposes?
Result on appeal: Reversed.
Holding: Yes, the appellate court erred in affirming the trial court’s judgment in favor of the
defendant thereby holding that the serving of partridges by the defendant as a part of the meal
furnished by him and paid for by his guests as stated did not constitute a sale of said partridges
for food purposes.
Doctrinal rationale: If in a hotel where meals are served a la carte a partridge is ordered
prepared and served as food and paid for as such it would constitute a sale within the meaning of
the statute. The facts of this case show that the partridges were sold as a matter of law and within
the prohibition of the statue.
Policy rationale: Preserve birds (Preserve the natural resources of the state)
Additional Points: (Dicta) Persons who have game in their rightful possession within the
terms of the statue may in good faith give the same away or serve the same to an invited guest. It
is possible that if the game is served independently of the regular meal by a hotel or boarding
house keeper, that the question whether the same as so served, is a gift or a sale may be one of
fact.

Class Notes
Relation to Warranty
- Defines what is a sale
- Defines who is a seller
- Says when seller should be strictly liable?
 77/107

Case name & citation: Race v. Krum

Statement of the case: A patron sued the drug store manager to recover damages for
personal injuries from the consumption of poisonous ice cream sold by the manager, alleging
(1)that the manager was negligent in selling the cream and that (2)the manager warranted the
cream to be fit for human consumption.
Procedure: The answer put in issue the material allegations of each cause of action. At
conclusion of the evidence, plaintiff elected to go to the jury on only on the second cause of
action and the case was submitted to it on that theory. The jury rendered a verdict in favor of the
P. The trial court entered the jury’s verdict in favor of the P. D appeals. The appellate court
affirmed. D appeals.
Statement of facts: The manager conducted a drug store that also served ice cream. The
patron with 2 companions entered the manager’s store and asked to be served with ice cream,
which was done, the 2 companions being served from one can and the patron from another. The
patron complained about the quality of the ice cream and only ate part of it. The clerk who
waited on him examined the cream and said that there was something wrong with it. A short time
after that, the patron violently ill and was ill for several days.
Issues: Was the trial court correct in instructing the jury that when defendant sold the cream to
plaintiff he impliedly warranted it was fit for human consumption?
Result on appeal: Affirmed.
Holding: Yes, the trial court was correct in instructing the jury that when defendant sold the
cream to plaintiff he impliedly warranted it was fit for human consumption.
Doctrinal rationale: Accompanying all sales by a retail dealer of articles of food for
immediate use there is an implied warranty that the same is fit for human consumption.
Policy rationale: The rule is based on the high regard which the law has for human life.
Public policy as well as the public health demand such obligation should be imposed.

Class Notes
Key fact: drug store owner made and prepared food himself therefore there is an implied
warranty for fitness for human consumption (ie: the dealer must be the preparer of the food)

Excludes hotel proprietors

 78/107

Case name & citation: Rinaldi v. Mohican Co.

Statement of the case: A buyer brought an action against the a market owner to recover
damages resulting from the consumption of infested meat on the theory of implied warranty.
Procedure: The court submitted to the jury the question as to whether the plaintiff could have
found such a defect if she had used reasonable care. The jury found for the plaintiff and the
judgment was then affirmed in the Appellate division.
Statement of facts: On December 16th, 1915, the P bought a loin of pork at a market owned
by the D. The meat was infected with trichianae. She cooked and ate it and was made ill. The P
found no defect in the meat.
Issues:
Result on appeal: Affirmed
Holding:
Doctrinal rationale: There is no implied warranty of fitness unless the buyer expressly or by
implication acquaints the seller with the purpose of the purchase and unless it appears that the
buyer relies on the seller’s skill or judgment. Even then if buyer has examined goods and should
have the defect, there is no warranty. The mere purchase by a customer from a retail dealer in
foods of an article ordinarily used for human consumption does by implication make known to
the vendor the purpose for which the article is required. Such a transaction standing by itself
permits no contrary inferences. If it does not appear that the buyer has examined the goods or
having examined the goods or, having examined them, has failed to discover defects which he
should have found precisely such an implied warranty exists as the court said existed in all cases
whenever a dealer sold food.
Policy rationale:

Class Notes:
Additional Fact: Pork bore the U.S. Stamp of approval.

Buyer must show that the seller had an opportunity to inspect

Difference between common law and statute is you have to make known the to seller purpose for
which good is used and by implication rely on the seller’s judgment.

Personal property law: Broader because no it no longer applies to food only, but narrower
because buyer has the burden to prove seller had opportunity to inspect.
 79/107

Case Name: Canavan v. City of Mechanicville I

SoC: Household sues city to recover damages for getting typhoid fever from contaminated water
provided by the city, alleging that the city broke its implied warranty on the water to the damage
of the household.
PB: The complaint contained 2 causes of action. The defendant demurred to the second cause of
action for implied warranty. The trial court entered an order overruling the defendant’s demurrer.
The defendant appeals.
Facts: The plaintiff was a household in the defendant city. The city maintained a system of
water supply for its inhabitants for drinking and domestic uses for a compensation. The water
furnished became contaminated with germs of typhoid fever. The plaintiff ingested the water and
contracted the disease.
Issue: Did the trial court err in overruling defendants demurrer, thereby holding that a city
which for a compensation supplies water through a water pipe to a building there to be used by
the inhabitant, impliedly warrants that water to be wholesome and fit for human consumption?
RoA: Reversed.
Holding: Yes, the trial court erred in overruling defendants demurrer, thereby holding that a
city which for a compensation supplies water through a water pipe to a building there to be used
by the inhabitant, impliedly warrants that water to be wholesome and fit for human consumption.
Doc. R.:
Ownership
An implied warranty of personal property is a collateral contract attending a sale thereof, so that,
unless there be a sale with the ordinary circumstances of transfer of title and possession of the
thing sold, for a price given for that particular thing, the peculiar facts out of which a warranty is
implied do not exist, and there is no warranty.
No absolute warranty can be acquired in flowing water because it had none of the attributes
commonly ascribed to property and it is not the subject of exclusive dominion or control.
Therefore the water was not the subject of barter and sale between parties.
Taxation: There was no element of profit involved, only an assessment/taxation of the cost to
furnish to discharge a private duty of the members of the city. Therefore there was no sale of
water to this plaintiff.
Personal Property Law: (Assuming that the water was sold to the plaintiff)
There is an implied warranty accompanying sale only if it were a case where the buyer expressly
or by implication makes known to the seller the particular purpose for which the goods are
required, and it appears that the seller relies on seller’s skill or judgment.
Limitation: The buyer must assume that the seller has had the opportunity to examine the article
sold to rely on the seller’s skill and judgment. (Cites Rinaldi)
It is common knowledge that water supplied from a reservoir is never in the actual physical
custody of the seller.
Analyses and inspection of every drop of water collected in ponds is beyond the power of the
seller.
Therefore a buyer cannot assume that the seller has the opportunity to examine the water sold so
that invariably contamination and disease can be avoided.
Pol. R.: The court does not want to hold city liable for discharging a private duty. Rather it
wants to encourage the city to take on such duties, which it has become difficult for members of
the city to do themselves. Imposing liability on the state would deter the city from discharging
such private duties; therefore the court does not hold the city liable.
 80/107

Add. Pnt.: (Concurrence) The city was not the manufacturer of the article “sold.” Where the
vender is not the manufacturer and the purchaser knows this fact, in the absence of proof of an
express warranty or of fraud or deceit upon the part of the seller, he is not responsible for latent
defects. A dealer does not impliedly warrant against latent defects, except where the sale of the
article by him is in and of itself legally equivalent to a positive affirmation that the article has
certain inherent qualities inconsistent with the claimed defects. Unless the vendor is the producer
or manufacturer of the articles, there is no implied warranty against latent defects even if the
vendor knows the purposes for which the goods are bought.

(Dissent) There was a sale. In the character of personal property, water, separated from its source
or from the body of which it constituted a part, may be bought and sold like other commodities,
as when it is supplied through artificial conduits for domestic use, or irrigation, or when it is
supplied through artificial conduits for domestic use, or irrigation, o or when solidified in the
form of ice; but the flowing water of a stream is not susceptible of absolute ownership and
admits only a transient usufructuary property.

Case Name: Canavan v. City of Mechanicville II

PB: Appellate court reversed the trial court’s order overruling the defendant’s demurrer.
Issue:
(1) Did the appellate court err in holding that the furnishing water through a water pipe to a
building there to be used by the inhabitant for compensation is not a sale of goods?
(2) Was the appellate court correct in holding that a city which for a compensation supplies water
through a water pipe to a building there to be used by the inhabitant, does not impliedly warrant
that water to be wholesome and fit for human consumption?
RoA: Affirmed.
Holding:
(1) Yes the appellate court erred in holding that the furnishing water through a water pipe to a
building there to be used by the inhabitant for compensation is not a sale of goods?
(2) Yes, the appellate court was correct in holding that a city which for a compensation supplies
water through a water pipe to a building there to be used by the inhabitant, does not impliedly
warrant that water to be wholesome and fit for human consumption?
Doc. R.: The supply of water through pipes for compensation is a sale of goods under the
statute; however, the case does not fall under the statute.
Sale of Goods: Under the statute, goods include all chattels personal other than things in action
and money. The term includes implements, industrial growing crops, and things attached to or
forming part of the land under which are agreed to be served before sale or under the contract of
sale. The corporation segregates the water supplied from its sources in reservoirs or pipes of its
own and delivers it to those who demand and receive it at a fixed price. That the furnishing is
without profit is weightless. It is a sale of goods.
Particular Purpose and Reliance: A taker of water from pipes of a system of water works of a
water corporation or municipality does not by the mere taking make known. Either expressly or
by implication, to the seller of the water the particular purpose for which the water is required,
and cause it to appear that he relies as to the wholesomeness of the water on the seller’s skill or
judgment. Of the water taken the part not used for drinking or human consumption is much
greater than that which is taken for consumption. The waters are never actually in the possession
 81/107

and care of the seller and is its common knowledge that to some extent risk attends the
consumption of water.
Pol. R.: The court is seeking to protect the corporations operating water works systems because
“[m]en will not form corporations which the court will hold obligated, at a risk which may
bankrupt and destroy them, to enter a guaranty or warranty which they cannot fulfill.”
Add. Pnt.: (Dissent; Pound) If it is true that the furnishing of water through pipes is a sale of
goods, then it is also true that there was an implied warranty of wholesomeness since the buyer
does not himself select the article nor rely on his own skill and judgment; he simply takes what is
offered by the city.

(Dissent, Elkus) A city selling water is not exercising a public, but a private power. When a city
engages in a business, it assumes the same liability as rests upon an individual. The burden of
collecting only pure water or of purifying water permitted to flow through pipes for the sanitary
and potable uses of the community is upon the corporation controlling the supply.

Class Notes
Ct. implies that seller must have an effective opportunity to inspect goods
This case is different from Rinaldi in that pork is only used for consumption and water is not.
P could possibly recover under negligence.
 82/107

Case Name: Horton v. Town of North Attleborough

SoC: The buyer brought this action of contract or tort against the seller to recover damages for
breach of implied warranty and negligence.
PB: The complaint contained 2 causes of action. The first cause declares upon a warranty that
the water supplied would be fit for drinking after passing through lead pipes used by the buyer.
The second cause is for negligence. On the first count for breach of warranty, the judge
instructed the jury that the water was sold and delivered by the defendant at the water gate at the
property line; that if the water at that point was fit for human consumption the defendant would
not be liable though after passing that point it might become unfit; and that if the water was unfit
at that point the defendant would be liable on its warranty of fitness only for injury caused to the
plaintiff by the lead that was in the water at that point. The plaintiff excepted to each of these
propositions. The plaintiff also excepted to the refusal to give jury instructions that the defendant
in supply water for domestic uses impliedly warranted that it was fit therefore when consumed
through pipes of a kind approved by the defendant’s authorized representative and that when the
defendant required that water which it sold for drinking purposes be conducted through pipe of
iron, tin or lead, it expressed to the plaintiff its approval of lead pipe. At the trial the jury
returned a verdict for the seller on each cause.
Facts: Buyer was poisoned by water furnished by seller through lead pipes chosen by the buyer
of three options presented by seller.
Issue: Did the trial court err in instructing the jury that the water was sold and delivered by the
defendant at the water gate at the property line; that if the water at that point was fit for human
consumption the defendant would not be liable though after passing that point it might become
unfit; and that if the water was unfit at that point the defendant would be liable on its warranty of
fitness only for injury caused to the plaintiff by the lead that was in the water at that point?
RoA: Reversed.
Holding: Yes, the trial court erred in instructing the jury that the water was sold and delivered
by the defendant at the water gate at the property line; that if the water at that point was fit for
human consumption the defendant would not be liable though after passing that point it might
become unfit; and that if the water was unfit at that point the defendant would be liable on its
warranty of fitness only for injury caused to the plaintiff by the lead that was in the water at that
point.
Doc. R.:
Applicability
The judge charged in substance in the instructions that the defendant was bound by an implied
warranty under the sales act
The sales act does not apply to the furnishing of water supply through pipes (Canavan)
Particular Purpose
It may be assumed that the warranty is of fitness at the time when title to the water passed to the
plaintiff, and not at any later time; and it may also be assumed that the title passed at the water
gate and not at the meter. But those assumptions are not decisive.

The purpose for which the defendant warranted the water to be reasonably fit was not merely
drinking. The water was not to be drunk at the water gate, nor at the meter The purpose for
which the water was required and for which it was to be reasonably fit included the passage of
the water through one hundred forty-five feet of lead pipe, known to and approved by the
defendant, before the water could get into the house to be drunk.
 83/107

If there is a warranty under the circumstances of this case, it is a warranty that when water
becomes the property of the plaintiff it will be reasonably fit to be conducted through one
hundred forty-five feet of lead pipe into the house and then to be drunk.

Class Notes:
- Compare and contrast with Canavan.
 84/107

Case Name: Stubbs v. City of Rochester

SoC: Consumer brought this negligence action against supplier to recover damages sustained by
the plaintiff due to drinking contaminated water from the supplier’s domestic service.
PB: The evidence on the trial discloses that at least 58 witnesses, residents of the district, drank
the contaminated water and suffered from typhoid fever in addition to the plaintiff. The plaintiff
gave evidence of his habits his home surroundings and his method of living, and the medical
testimony indicated that his illness was caused by drinking contaminated water. Defendant
moved to dismiss the complaint on the grounds that the plaintiff did not establish that he
contracted the disease by drinking contaminated water. The trial court dismissed the complaint in
favor of the defendant.
Facts: The supplier was a city that maintained 2 systems of water supply with 2 separate
sources. One system was suitable for domestic use, and the other for fire purposes. The water of
the 2 systems was allowed to commingle by mistake. The consumer drank the water and
contracted typhoid fever.
Issue: Did the trial court err in dismissing the plaintiff’s complaint because the plaintiff’s
evidence fails to disclose that he contracted typhoid fever by drinking contaminated water?
RoA: Reversed.
Holding: Yes, the trial court erred in dismissing the plaintiff’s complaint because the plaintiff’s
evidence fails to disclose that he contracted typhoid fever by drinking contaminated water.
Doc. R.: When there are several possible causes of an injury for one or more of which the
defendant is not responsible, the plaintiff cannot recover without proving that the injury
sustained was wholly or in part a cause for which defendant was responsible; however, when a
party injured establishes facts from which it can be said with reasonable certainty that the direct
cause of the injury was the one for which the defendant was liable, that party had complied with
the “spirit” of the rule.

Class Notes:
This is how an injured consumer might prove the water supplier’s negligence caused his injury.

This was the household’s first cause of action in Canavan.

 85/107

Case Name: Geddling v. Marsh

SoC: A retailer sued a manufacturer to recover damages for persona injuries caused by the
bursting of a bottle of lime juice and soda supplied to her by the manufacturer.
PB: The trial judge entered judgment for the plaintiff and awarded damages, holding that there
was an implied warranty under the Sale of Goods Act that the article was reasonably fit for the
purpose for which it was required by the plaintiff and that the manufacturer breached said
warranty. The defendant appeals.
Facts: The retailer, the owner of a small shop, obtained her supplies from a mineral water
manufacturer. She was charged three shillings for the minerals and a penny for each bottle, the
penny being refunded on the bottle being returned and forfeited if the bottle was broken or not
returned. One day while serving a customer, the retailer took the bottle from the counter,
carefully handling it, and was about to replace it in the case when it burst in her hands and
seriously injured her. She had made known to the manufacturer the purpose for which she
required the bottled of mineral water and the bottled of lime juice and soda were of a description
which it was in the course of defendant’s business to supply.
Issue: Was the trial judge correct in holding that it was immaterial that there was no sale of the
bottle for implied warranty under the Sale of Goods Act?
RoA: Affirmed.
Holding: Yes, the trial judge was correct in holding that it was immaterial that there was no sale
of the bottle for implied warranty under the Sale of Goods Act.
Doc. R.: The goods in question were good supplied under the contract for sale. The goods were
a prong of the original contract for sale rather than an extra contract for bailment. Therefore the
implied warranty for the goods sold themselves extends also to goods supplied under the same
contract.

In addition, the goods sold are to be reasonably fit for the purpose for which they are required.
Mineral water is not reasonably fit for the purpose for which it is required if it generates gas to
such an extent that the bottle containing it bursts.
Pol. R.: Consumer protection.
Add. Pnt.: The Sale of Goods Act: “Where the buyer, expressly or by implication, makes
known to the seller the particular purpose for which the goods are required, so as to show that the
buyer relies on the seller’s skill or judgment, and the goods are of a description which is in the
course of the seller’s business to supply (whether he be manufacturer or not), there is an implied
condition that the goods shall be reasonably fit for such purpose.”

Class Notes
NOTE: Section 96 may not have applied: “Where the buyer, expressly or by implication, makes
known to the seller the particular purpose for which the goods are required, and it appears that
the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or
not), there is an implied warranty that the goods shall be reasonably fit for such purpose.” It does
not include a provision for goods supplied.

Res ipsa might not have worked here either since the bottles are not in the exclusive control of
the defendant.
NOTE: Bailer’s Warranty
 86/107

Bailment: A delivery of personal property by one person (the bailor) to another (the bailee) who
holds the property for a certain purpose under an express or implied-in-fact contract; involves a
change in possession but not in title.
 87/107

Case Name: Hoisting Engine Sales Co. v. Hart

SoC: The lessor of defective equipment sued the lessee of said equipment to recover the rental
reserved in the lease.
PB: The lessee counterclaimed by setting up a breach of warranty and demanding the damages
sustained in consequence thereof. At trial the defendant testified that he told the plaintiff what he
intended to use the equipment for in detail. The testimony was received over objection and
exception. Trial court ruled in favor of the lessee. The lessor appealed. The appellate court
unanimously affirmed the trial court’s judgment in favor of the defendant. The lessor appeals.
Facts: The lessee leased equipment from the lessor “to be used by the lessee on his contact at
Singac, N. J.” per the contract agreement. The lessee had to a subcontractor to excavate a trench
and lay about ten miles of water pipe. The defendant intended to operate an orange peel bucket to
do the digging with the derrick and also intended to use the same machine to put the pipe in the
trench. The hoist could not be operated as designed to work and the boom broke when
attempting to lift one of the pipes. After the lessee had installed the traveler and hoist it broke
down completely and failed to do the work for which it was hired.
Issue: Was the trial court correct in permitting parol evidence of a conversation with the
plaintiff’s president, preceding the execution of the lease, wherein the president was told the
nature of the defendant’s contract and the kind of machinery required as evidence of an implied
warranty arising out of the transaction?
RoA: Affirmed.
Holding: Yes, the trial court was correct in permitting parol evidence of a conversation with the
plaintiff’s president, preceding the execution of the lease, wherein the president was told the
nature of the defendant’s contract and the kind of machinery required as evidence of an implied
warranty arising out of the transaction.
Doc. R.:
Parol Evidence: It does not vary the terms of the written instrument to show by parol that the
plaintiff knew what it was writing about when it referred to the defendant’s contract within its
contract with the defendant.
Oral Contracts: If there be an implied warranty in the hiring of machinery for a special purpose,
that it is and will be fit for such use or at least will work, then the warranty may be proved or
implied even though hiring was by written agreement containing no warranty. All implied
warranties may attach to a written as well as unwritten contract.
Implied Warranty for Bailment: There is an implied warranty in the hiring of property or
bailment of certain kinds of property. The owner of a chattel which he lets out for hire is under
the obligation to ascertain that the chattel so let out by him is reasonably fit for the purpose for
which it is expressly let out or for which, from its character, he must be aware it is intended to be
used: his delivery of it to the hirer amounts to an implied warranty that the chattel is in fact as fit
and suitable for that purpose as reasonable care and skill can make it.
Pol. R.:
Add. Pnt.: (Dicta) It may be that the hiring of chattel should be assimilated to the sale of goods
and that section 96 of the Personal Property Law applies.
Class Notes: This case was decided under common law.
 88/107

Chysky v. Drake Brothers Co.

SoC: A waitress brought this action against a cake manufacturer to recover damages for injuries
sustained when she ate a piece of cake with a nail baked into it that her employer had bought
from said cake manufacturer, upon a theory of implied warranty that cake was fit for human
consumption.
PB: The jury returned a verdict in favor of the plaintiff and the trial court entered the jury
verdict. The defendant appealed. The appellate court unanimously affirmed. The defendant
appeals.
Facts: The plaintiff was employed as a waitress in a lunchroom. Her employer paid her $30 a
week and furnished her room and board. She received from her employer one day, as part of her
lunch, a piece of cake which had been made and sold to the owner by the defendant. While she
was eating it a nail, baked into the cake in a way that it could not be discovered by inspection,
stuck in her gum, which became infected as to necessitate the removal of three of her teeth.
Issue: Did the appellate court err in affirming judgment for the plaintiff thereby holding that
there was an implied warranty inured to the benefit of the plaintiff even though there was no
contractual relationship between her and the defendant?
RoA: Reversed.
Holding: Yes, the appellate court erred in affirming judgment for the plaintiff thereby holding
that there was an implied warranty inured to the benefit of the plaintiff even though there was no
contractual relationship between her and the defendant.
Doc. R.: Accompanying all sales by a retailer of articles of food for immediate use there is an
implied warranty that the same is fit for human consumption (Race v. Krum); however, a
manufacturer or seller of food or other articles of personal property, is not liable to 3rd person,
under implied warranty, who have no contractual relations with him, because privity of contract
does not exist between the seller and such 3rd persons, and unless there be privity of contract,
there can be no implied warranty.
Pol. R.: Limiting consumer protection. Narrows implied warranty doctrine.
Add. Pnt.: (Dicta) Exception: It may be assumed that thunder certain facts and conditions the
manufacturer of an article would be liable to a third person, even though no contractual
relationship exists between them, if the article sold were negligently prepared or manufactured
(Macpherson v. Buick). But the recovery in this case was not based upon the negligence of the
defendant. Plaintiff limited her right to recover to breach of warranty.
(Dicta) An action may be maintained to recover damages caused by breach of an implied
warranty in the sale of food to a consumer for immediate consumption. Whether this warranty
extends to a wholesaler was expressly reserved (Rinaldi)

Class Notes
Warranty is contractual and has nothing to do with torts
Policy reasoning for implied warranty is to protect the consumer, so why not pass this cost on to
the manufacturer.
Case seems to go against the policy rationale for implied warranty.
 89/107

Temple v. Keeler
SoC: A restaurant patron brings this action against a restaurant owner to recover for loss and
damage alleged to have been caused by sickness resulting from the consumptions of fish in the
owner’s restaurant which was unwholesome and unfit for human food, whereby the patron
became ill from ptomaine poisoning.
PB: Trial court entered verdict for the patron. The Appellate court unanimously affirmed. The
restaurant owner appeals.
Facts: P entered D’s restaurant, ordered a portion of fish, received it, ate it, paid for it, and later
became ill.
Issue: Was the appellate court correct in affirming the trial court’s judgment for the plaintiff
thereby holding that where a customer enters a restaurant, receives, eats and pays for food,
delivered to him on his order there is an implied warranty that the food is reasonably fit for
human consumption?
RoA: Affirmed.
Holding: Yes, the appellate court was correct in affirming the trial court’s judgment for the
plaintiff thereby holding that where a customer enters a restaurant, receives, eats and pays for
food, delivered to him on his order there is an implied warranty that the food is reasonably fit for
human consumption.
Doc R: The owner of a restaurant sells the food which he provides for his guests. The facts in
this case are very similar to those in Race v. Krum where it was found that there was an implied
warranty.
Pol R: Protecting the Consumer.
Add. Pt.: (Dicta)Apart from Race v. Krum the court would still be compelled to reach the same
decision based on the decision in People v. Clair for what constituted a sale of goods.
 90/107

J. Aron & Co. v. Sills

SoC: A buyer brought this action against a retailer to recover for breaches of warranties in
connection with the sale of canned condensed milk that became fermented, unfit for human
consumption and commercially useless.
PB: Trial court entered verdict for P. The appellate court affirmed. D appeals.
Issue: Was the trial court correct in entering judgment for the plaintiff for breach of warranty,
given that the milk was unfit for human consumption?
RoA: Affirmed.
Holding: Yes, the trial court correct in entering judgment for the plaintiff for breach of
warranty, given that the milk was unfit for human consumption.
Doc R: The purpose for which these goods were required was at least by implication known to
the seller.

Even were the trial court in error as to the existence of an implied warranty that the goods in
question were fit for human consumption, bought as they were by description from one who
dealt with them, there was a warranty that they were of merchantable quality.

If condensed milk is unfit for human consumption, it does not comply with this warranty.
Pol R: Protecting the consumer

Class Notes
Merchantable warranty: std quality of good fit for human consumption (eg: water, pork)

NOTE: Retailer vs. Manufacturer (privity of K)

Redmond v. Borden’s Farm Products Co.

SoC: An infant brought this action against the manufacturer to recover for personal injuries
alleged to have been sustained as a result of the manufacturer’s negligence, alleging that the
infant was injured by broken glass contained in a bottle of milk that passed into her mouth while
she was drinking the milk.
PB: The case was submitted to the jury on a theory of breach of implied warranty. Trial court
entered verdict for P. Appellate court affirmed. D appeals.
Facts: The infant’s mother procured milk and paid for it. The infant was injured by broken
glass contained in a bottle of milk that passed into her mouth while she was drinking the milk.
RoA: Reversed.
Doc R: No privity between infant and manufacturer. Ct. decides on the authority of Chysky.

Class Notes: Remember VA RR; less responsibility to those who can’t protect themselves
(conflicts w/ policy rationale to protect consumer)
 91/107

Vaccaro v. Prudential Condensed Milk Co.

SoC: A married woman brought this breach of implied warranty action against the manufacturer
of milk to recover damages alleged to have been sustained by her by reason of having partaken
of milk that was in an unwholesome condition.
PB: This action was tried and a verdict was rendered by the jury in favor of the plaintiff. D
moved to set aside the jury verdict and to dismiss the complaint.
Facts: P bought and paid for the milk, which was for the sole use of herself and her infant child.
She lived with her husband. There is no evidence that P was self-supporting or that she depended
on her husband for support
Issue: Did an implied warranty extend to the married woman?
Result: Motion to set aside verdict granted and complaint dismissed.
Holding: No, an implied warranty did not extend to the married woman.
Doc R: In the absence of any evidence to the contrary, there is the presumption that the moral
and legal obligation on the part of the husband to support his wife and family is being carried
out. Implied warranty does not extend to the wife because was acting as an agent for her
husband; thus there was no privity of K between her and the manufacturer.

Ryan v. Progressive Grocery Stores, Inc.

SoC: A husband brought this action for breach of warranty against the grocer to recover
damages for injuries sustained when he, through his wife, who acted as his agent bought a loaf of
bread from said grocer that had a pin concealed in it which hurt his mouth.
PB: There was judgment for the damage
Facts: P’s wife stated to the salesman that she wished to have a loaf of a particular brand of
bread. The salesman gave her what she asked for, wrapped in a sealed package as it had come
from the baker of the brand.
Issue: May the plaintiff recover under an implied warranty of merchantability?
RoA: Affirmed
Holding: Yes, the plaintiff recover under an implied warranty of merchantability.

Damages for breach of warranty of merchantable quality is more than the price of good where
the dealer had notice from the nature of the transaction that the bread was to be eaten
Doc R: Loaves baked with pins in them are not of merchantable quality. Relies in the precedent
set in J. Aron & Co. v. Sills.
Pol R: Protecting the Consumer
Add. Pt.: (Dicta)There are times when a warranty of fitness has no relation to a warranty of
merchantability and times when they coexist and recovery may be founded on either.

Class Notes: The seller did not have a reasonable opportunity to inspect here because the
bread was prepackaged and he was not the manufacturer or packager.
 92/107

Giminez v. Atlantic & Pacific Tea Co.

SoC: Wife brought an action for breach of warranty and negligence and husband brought a
breach of implied warranty action for loss of consortium and medical expenses against the
retailer for injuries sustained by the wife from ingesting crab meat, bought from the retailer that
contained a deleterious substance.
PB: Husband’s claim was originally based on negligence, but at trial he amended to breach of
implied warranty and eliminated the negligence claim. Trial court entered verdict for the
plaintiff. Defendant appealed. Appellate division unanimously affirmed trail court’s decision for
the plaintiff. Defendant appeals.
Facts: Wife bought the crab meat sealed in a can from the retailer. The crab meat contained a
deleterious substance other than crab meat. As a result, when wife ingested said meat, her
stomach became lacerated and cut.
Issue: Did the trial court err in entering judgment for the plaintiff, thereby holding that a
husband may maintain a breach of implied warranty to recover for the consequential damages
sustained by him for loss of consortium and medical expenses?
RoA: Judgment on husband’s claims reversed; judgment on wife’s claims affirmed.
Holding: Yes, the trial court erred in entering judgment for the plaintiff, thereby holding that a
husband may maintain a breach of implied warranty to recover for the consequential damages
sustained by him for loss of consortium and medical expenses. These claims may however be
brought in negligence.
Doc R: The husband may sue when the wife acted simply as his agent in making purchases, but
where the wife is the purchaser, the right of action is hers. To maintain a breach of warranty,
there must have been evidence of a contract between the parties, for without contract, there can
be no warranty.
Pol R: Privity of contract.
Add. Pt.: (Lawyer’s argument) Lawyer for the appellant (Atlantic & Pacific) offered
inconsistent arguments: Wife was acting as husband’s agent only, but the husband could not
recover under breach of implied warranty because the warranty was to the wife, not the husband.
This is contradictory because if wife is only an agent, then the husband is the person to whom the
warranty was made as the principle.

Class Notes
- Retailer can’t inspect food because it’s canned.
- Shift: wife is no longer an agent, but a purchaser with a contractual relationship, and husband
does not have privity. (Change in the treatment of women)
- Does it matter that plaintiffs are married, or only that they shared expenses?
- Court is taking very slow steps: Believes that legislature should be responsible for drafting laws
to protect the consumer.
- After this case you can say that a woman, a mother, can act as an agent for her child using the
agency theory to say that the child should be protected. Remember how far down the road we
can go.
- Seems to be a social need to protect children. Purpose of statues is to protect the consumer.
- Statute has a lot of weeway in interpreting statutes. Courts use common law and interpretation
to make these decisions.
- Evolved social policy.
 93/107

McSpedon v. Kunz
SoC: The buyer brought this breach of implied warranty action against the retail seller, the
distributor, and the manufacturer to recover damages for injuries alleged to have been sustained
by the buyer through sickness contracted by her from eating pork infested with trichinae.
PB: The trial court ruled in favor of the distributor and against the retail seller and the
manufacturer. The appellate division affirmed.
Facts: P purchased pork from the butcher/retail seller which she fried on a gas stove. They wer
about half an inch thick and she cooked them in a big frying pan until she thought they were well
done. After eating the pork she was poisoned and developed a disease from a worm parasite
usually found in pork. 2% or 3% of of all fresh pork are infected with these parasites. They
render food unwholesome and cannot be seen with the naked eye, but can be discovered with a
microscope. The slaughterer/manufacturer knew of a method to discover it as well as a method to
kill or eradicate the parasite. The housewife testified that she knew nothing about the requisite
degree of heat, or the disease itself. The expert in the case testified that he didn’t know these
things until he was taught them in the professional school after he graduated from college.
Issue: Does the sale of pork that passes government inspection, but is not fit for human
consumption constitute a breach of implied warranty where there are means available to make
the meat safer for the consumer?
RoA: Affirmed.
Holding: Yes, the sale of pork that passes government inspection, but is not fit for human
consumption constitutes a breach of implied warranty where there are means available to make
the meat safer for the consumer.
Doc R: Based on the ruling in Rinaldi: On every such sale of food by the dealer for immediate
human consumption there is an implied warranty of its wholesomeness.
Pol R: Consumer’s know nothing about the danger lurking in meats or the requisite heating
point to destroy parasites, and must rely on the grocer, the butcher and the slaughterer to sell
them wholesome food.
Dissent: The question in this case is whether the presence of trichinae renders pork
unmerchantable. Pork is fit for human consumption if used in the manner that the packer
intended it to be used. There is no finding that the pork was unwholesome if cooked in the
ordinary manner and no evidence would justify such a finding and without it no judgment
against the slaughterer/manufacturer can be sustained. Warranty of merchantablity is different
than fit for human consumption.

Class Notes
- implied warranty case for merchantability: It is assumed that this case was decided upon
merchantability, not fitness because of the dissent.
- Similar to Canavan becaue of policy reasons. Canavan protets the city while this caes protects
the consumer.
- Rinaldi is different because it ruled that the food was unfit or human consumption.
- Packer is responsible if product is unmerchantable. (NOTE: merchantability vs. fit for human
consumption/wholesomeness)
- Policy driven case
- Judge might have thought this or decided this case because he might not have known that pork
had to be cooked for so long.
 94/107

Blessington v. McCrory Stores Corp.

SoC: Father sues department store on behalf of his infant son for breach of implied warranty of
fitness for use to recover for the injuries and pain and suffering of his son sustained from burns
he suffered when a cowboy suit he was wearing that his mother bought from the defendant
department store came into contact with a flame and ignited.
PB: This action was commenced more than 3 years after the accident. The complaint alleged 4
causes of action, 3 of which were dismissed, leaving only the claim for breach of implied
warranty of fitness. The department store moved to dismiss the claim on the grounds that the
theory was such that a suit is in reality one in negligence that should be barred by the 3 year
statute of limitation. The trial court denied the motion to dismiss. The appellate division affirmed
the decision of the trial court. The defendant appeals.
Facts: The department store sold the suit made by the manufacturer of inflammable material
supplied by the supplier to the infant’s mother for infant’s use. The infant died from burns
suffered when said suit came into contact with a flame and ignited.
Issue: Was the appellate court correct in affirming the decision of the trial court denying
defendant’s motion to dismiss, holding that although a breach of a duty may rest upon, or be
associated with, a tortious act, it is independent of negligence, and so such a cause of action gets
the benefit of the 6 year limit as being on an implied contract obligation or liability?
RoA: Affirmed.
Holding: Yes, the appellate court was correct in affirming the decision of the trial court denying
defendant’s motion to dismiss, holding that although a breach of a duty may rest upon, or be
associated with, a tortious act, it is independent of negligence, and so such a cause of action gets
the benefit of the 6 year limit as being on an implied contract obligation or liability.
Doc R: While an action for breach of implied warranty of fitness may involve, incidentally,
some showing of negligence, the contract breached is not merely one to use due care, but it is a
separate (implied) contract of guaranty that the goods are fit for the purpose for which they are
sold and bought. Proof of negligence is unnecessary for recovery in such a suit.
Pol R: Protecting the consumer.

Class Notes
- suit sold to mother by department store; therefore wife was the purchaser, but husband filed
complaint, and infant was injured.
- Why just pain and suffering instead of wrongful death?
- Redman; here perhaps there is no need for privity; infant had no privity.
- Seems to be more policy driven
 95/107

Bowman v. Great Atlantic & Pacific Tea Co.

SoC: Victim, who shared expenses with the buyer for food, brought a breach of implied
warranty action against the grocer to recover damages for injuries sustained when she used oil,
bought by the buyer from the grocer, that contained a dead mouse, alleging that because the she
and the buyer shared expenses, the buyer was acting as her agent when she purchased the oil and
therefore there was privity between the victim and the grocer to sustain a cause of action for
breach of implied warranty.
PB: The grocer moved to dismiss for failure to state a cause of action since there was no privity
of contract. The trial court denied said motion. The grocer appealed. The appellate court affirmed
the trial courts decision. The grocer appeals.
Facts: Victim lives with and shares expenses with the buyer. The buyer bought oil from the
grocer. The grocer knew the purpose for which the oil was to be used. The oil contained a
decayed mouse. The victim used said oil and became ill from it.
Issue: Was the appellate court correct in affirming the trial court’s denial of defendant’s motion
to dismiss for failure to state a claim, holding that where the contract is negotiated by another as
agent of plaintiff, its warranties may be enforced by plaintiff?
RoA: Affirmed.
Holding: Yes, the appellate court was correct in affirming the trial court’s denial of defendant’s
motion to dismiss for failure to state a claim, holding that where the contract is negotiated by
another as agent of plaintiff, its warranties may be enforced by plaintiff.
Class Notes
- Moves away from privity requirement
- One can act as principle for herself and agent for another (?)
- Agency theory is not confined to husbands and wives.
 96/107

Case Name: Mouren v. Great Atlantic & Pacific Tea Co.

SoC: Action bought by husband and wife against the retailer to recover damages for breach of
warranty and for negligence, alleging that the residue from grinding of pork had been allowed to
mix with the beef they had purchased, and that was the source of their illness.

PB: The trial court entered judgment for the plaintiff and awarded damages. The appellate court
affirmed judgment for the plaintiff with a modification to a finding of fact and conclusion of law
stated in the opinion of the trial court and a reduction in the award to the plaintiffs.

Facts: Plaintiff husband procured money from plaintiff wife and purchased 2 top round steaks
from the retailer. Steaks were ground by D in the grinding machine in which fresh pork had
previously been ground and said machine was not always cleaned after pork was ground in it.
Wife molded meat into patties, cooked it, and served it medium rare. Both husband and wife
subsequently became ill and were diagnosed with trichinosis. Plaintiffs had purchased all of their
meat from the defendant for the past 10 months and had not dined out or eaten pork for the past
10 months. Incubation stage for trichinosis ranges from a few hours to 10 days.

RoA: Affirmed.

Holding: A prima facie case has been established for a breach of implied warranty, and as a
matter of law, the plaintiff wife may recover for said breach.
Class Notes: Husband can be both principle and agent.
 97/107

Case Name: Greenberg v. Lorenz

SoC: The minor and her farther sue a retail food dealer for damages for breach of alleged
warranties of fitness and wholesomeness for injuries sustained when she ingested salmon from a
can bought from the retailer that contained some pieces of sharp metal.
PB: The trial court rendered judgment for both plaintiffs on the warranty theory, holding that
although the father bought the can of salmon the implied warranty extended to his 15 year old
daughter asa member of his household. The appellate court affirmed, holding that the old cases
were no longer controlling; however the Chysky case is still law and it forbids a recovery on
warranty breach to anyone except the purchaser. Thus the father has judgment for his expenses
but the minor’s suit was dismissed for lack of privity.
Facts: The retailer sold the father a can of salmon for consumption in the family home. The
tinned fish contained some pieces of sharp metal which injured the child’s teeth and mouth.
Issue: Did the court below err in dismissing the minor’s cause of action solely on the on the
ground that the food was not purchased by the child. but by her father?
RoA: Affirmed with modification reinstating the minor’s claim.
Holding: Yes, the court below erred in dismissing the minor’s cause of action solely on the on
the ground that the food was not purchased by the child. but by her father.
Doc R: It is not just or sensible to confine the warranty’s protection to the individual buyer. At
least as to household food and goods, the presumption should be that the purchase was made for
all members of the household.
Pol R: Protecting the consumer. Members of household, particularly children cannot protect
themselves.
Add. Pt.: (Concurrence) Concurred in the modification, but limited to the facts of this case; the
broadening of liability must be left to the legislature.

Class Notes
- Extends privity to household family
- Does no privity still mean no warranty given the several exceptions?
 98/107

Part IV: Legal Philosophers

Levi................................................................................................................99

Llewellyn.....................................................................................................100

Breitel..........................................................................................................101

Stotzky.........................................................................................................101

Michael........................................................................................................102

Justice Holmes.............................................................................................102

Justice Cardozo............................................................................................102

Gorgias Chart...............................................................................................103

Class Notes..................................................................................................104
 99/107

Levi
Lawyers
- Urge similarities/differences in cases (persuasion by similar facts)
- By bringing case for P, lawyers and clients are allowing vicarious participation of all citizens

Judges
- Cannot be completely impartial: arguments of lawyers make hearing fair
- Bound by (1)precedent, (2)statute, (3)Constitution
- Judges are to determine the similarities and differences between the facts of the present case
and the precedent
- Have the doctrine of dictum that allows him to make is own decision*

Precedent
- Constitution: most ambiguous (all we have is Framer’s intent and the text). Anything
specifically in the Constitution can’t be altered by case law
- Statutes: manipulation is somewhere between the Constitution and case law; can manipulate to
a reasonable extent, but separation of powers comes into play
- Case Law: extremely manipulative; fact specific
- Can’t have general rule from first case; have to see how it will be interpreted
- Law is expression of society; particularly relevant when ambiguity has to be resolved for a
particular case.

Law/Institutions
- Problem: if we compare similarities and differences, when will it be just to treat different cases
as the same?
- Law must remain ambiguous to allow for outside inferences
- Law expresses the ideals of the community and are molded for the specific case.
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Llewellyn
Lawyers
- Present facts most favorable to your client
- Use rules/precedent to help you predict what judges are going to do
- Holdings show the lawyer what facts have legal significance
- Roles
- Advocate: dispute resolution
- Counsel: dispute avoidance
- Lawyer’s slip of etiquette is the client’s ruin
- Bargaining in the shadow of the law - make an educated guess based on prcedent
- Lawyers must have objective of doing well
- Lawyers should know: (1)the rules/law, (2)the judges application of the rules, and (3)the
working situation (society/community/individual); He must understand what the law means to
the courts and to laymen

Judges
- How disputes are settled depends on the judge’s interpretation
- Judge is like an umpire - in civil law the umpire has to wait to be called in (different in criminal
law). Judge takes rules of the game from existing practice
- Judge has important role in charge to the jury (can shape the outcome of the case in this way)
- Sieve theory of facts: lawyers preset facts, trial court uses some in decision, appellate court uses
fewer, las facts standing create the rule of law
- Judges still human and are lawyers too: prone w/o thought to twist analogies and rules, and
instances to his conclusion; prone to disregard the implications which do not bear directly on his
case.

Legal Education
- Law as a liberal art not a science
- Need to learn: (1)technical proficiency, (2)intellect, (3)spirituality

Precedent
- True Rule: cases only have meaning in their social setting
- A case, standing alone, gives no guidance; have to know which facts have been deemed
relevant
- legal rules are post hoc rationalizations of the actual decision - rule laid down as a function of
the outcome of the case
- Judge can always interpret a case strictly or loosely
- Even wayside remarks by the court shed light on the remarker
- Law is not an exact science

Law/Institutions
- The law is what the judges do with it; what they do with the disputes presented to them
- Legislation is a tool of social readjustment
- Reasonable man rules our legal theory
- Law maintains order more than it makes it (Society creates order, law maintains it)
- If the rules were results there would be little need for lawyers
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- Affecting ppl’s behavior

- Anticipating/preventing disputes
- regulating what ppl do before disputes
- depends on the layman interpretation of the law
- subject to the life of the community and the needs of the individual (ie:the working
situation)

Breitel
Lawyers: Courage is a characteristic of an ethical and good lawyer

Judges
- Most important decision is whether to play an affirmative or inactive role
- Goal of the judge is to be detached, but still concerned
- Sometimes a judge can’t be passive if one lawyer (or both) are clearly inferior
- The advocate in the judge is never gone; sometimes they can be biased
- Stare decisis is not a dam [preventing the judge from making his own conclusions of law]

Precedent: Stare Decisis is not a dam

Stotzky
Lawyers
- Must understand the substantive law; known who is hearing your case; lawyers must properly
phrase the argument for the court
- Heavily influenced by Llewellyn
- Lawyers should both do well and good (moral bases for becoming a lawyer)

Judges
- Check and balance system; societal values control the situation
- Judges bring their own background into the situation as well

Legal Education: Doesn’t teach enough craft - not just substantive law, more of how to use
precedents, etc.

Precedent
- Broad and narrow holdings to fit the facts; don’t really know a holding until the next court has
interpreted it (how much precedential value depends on the next case)
- The rule comes out when you see how the ct interprets precedent in future cases

Law/Institutions: Law reflects the cultural and moral perceptions of society (it doesn’t create it).
But law and behavior do condition each other (eg: what we have to include in K)
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Michael
Lawyers
- must have a profound understanding of law as a political instrumentality and of law as a
science.
- must possess those good habits of learning and knowing, of thinking and communicating, and
of doing (skills of the lawyer)
- must be both a prudent and just man to work for not only the good of his client, but the
common good of the society in which he practices

Legal education
- The ultimate end of legal education ought to be the the good artist in law
- must not only be intellectual, but moral and practical as well

Law
- 2 closely related ways in which rules of law can be understood and criticized: (1)in terms of the
nature of what they regulate, and (2)in terms of the ends which regulation is designed to serve.
- Rules of procedural law regulate the intellectual affair we call controversy
- Issues of fact: issues about matters of fact which are legally significant
- Issues of law: the practical issues about what ought to be done
- Issues of consequence: award or denial of a legal remedy.
- Procedural rules are intended to protect the litigants against selfishness and avarice and
stupidity and incompetency and partiality.

Justice Holmes
- Formalistic Judge
- Not a follower of Llewellyn and Levi’s true rule that law exists within its social setting
- 4 principles
- Confusion between morality and law (should not be)
- Forces which determine the law’s growth and content
- Present condition of law as a subject of study
- Jurisprudence

Justice Cardozo
- Canons of Cardozo
- “Agreement” implies mutuality of obligation
- Construe contract against the drafting party (policy reason: justice for the little guy)
Opinions: Moran, Rubber Trading, Wood v. Lucy, US Rubber, Cohen v. Lurie,
Sun Printing

General concepts
- Conscious and aware of the business world
- Tries to integrate “good faith”
- Decides 1st how he wants a case to come out, then uses precedent to support his decision
- Hid his light under a bushel: Extremely persuasive judge w/o alienating ppl or being overt
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Gorgias

Socrates Gorgias Polus Callicles

- Moral Position: Better to
suffer evil than to evil; don’t
harm others; better to be
punished on earth than to
suffer in the afterlife.
- Does not think there is any
substantive (knowledge)
basis to Gorgias’ rhetoric & - Socrates says that a student
thus rhetoric is immoral;
persuasion w/o knowledge is Gorgias to do something
immoral.
- Although he may not
defend himself at trial, the
cost of losing his life is better
than living in immoral
society
- The others? They will be
defenseless in the afterlife.
- Claims he can teach anyone
to be persuasive
- Says oratory is most
morally acceptable
profession, but does not
claim to make everyone
moral by his speeches
can use rhetoric taught by
immoral
- In argument w/ Polus,
Socrates says that only life
worth living is that of
philosopher
- Socrates does not say what
is morally good, but brings
up afterlife as reason to want
to be good
- Socrates says dictators are
not powerful because their
evil ways are not punished
and they are therefore
suffering more than anyone
else in the afterlife; thinks
that true power is the ability
to push people to do what is
right so they can be moral
- Polus thinks dictators can
do what they want.
- Socrates indicates that he
thinks Callicles is only
worthy opponent
- Callicles moral stance:
Might makes right
- The powerful do what they
want; conventional laws of
morality are created by the
weak to stop the strong
- Morality is the law of
nature where the strong rule
over the weak
- Callicles does not respect
Gorgias who only teaches &
does not practice.
- Does not respect Polus
because he only follows
- Criticizes Socrates for
pursuing philosophy instead
of pursuing being rich,
prestigious and powerful.

Gorgias
Diff in being a citizen in Athens and citizen of the U.S. (?)
Gorgias argue that he can teach someone to persuade a lay audience to believe something that is
purported by experts
Socrates: Better to suffer wrong than do wrong; one should always seek to do what is good.
Means and ends: if Socrates goal to bring one to moral righteousness, is his method right?
Gorgias claims is respectable because what he does is the greatest good to society which is teach
ppl how to represent themselves.
Socrates is more gentle in his dealing with Gorgias because...
Gorgias is favored by the surrounding ppl
Socrates and Gorgias seem to be from the same generation
Socrates criticizes the morality of Gorgias profession.

Polus
“True believer” --> believe blindly without seeing the weakness in their own arguments.
Polus is not respected in the same way as Gorgias so when Polus interrupts it upsets Socrates
The distinction between the way Socrates treats Polus and the way he treats Gorgias is broad.
Does Socrates methods of convincing men of what is true meat that end or do his means and end
conflict? Are the means Socrates uses sufficiently moral to meet his end?

Callicles
Young, rich and ambitious
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More intellectual able to argue with Socrates than Polus and Gorgias
He argues that those who are powerful can do what they want. Is Callicles then a Hedonist? -->
Good pleasures v. bad pleasures
Socrates uses a method that does not convince Callicles even if Callicles argument leads to a
logical contradiction. ---> Callicles just stops arguing, but does not concede to Socrates.

Class Notes
Ethics (Article by Singer)
- What is the goal of philanthropy?
- To make themselves feel important?
- To ease one’s conscience? --> Duty to make past wrongs right.
- Belief that to whom much is given much is required
- Value of a human life? --> Is one person’s life worth more than another’s?
- Government v. private philanthropy
- Government
- government doesn’t give much
- political drivers in giving aid
- Private philanthropy is better because its more efficient
- fair share
- giving everything
- counter: “it’s inefficient just throw money at a problem”
- There are no easy solution to these problems
- human nature is peculiar

Is it morally permissible to do the things a lawyer does? If it is not, then being a lawyer is not the
way to live your life.

Why practice law? (Means and ends: Are the means acceptable? Is the intended goal (end)
acceptable?)
- To obtain wealth (?) (What will you do with your wealth?)
- Takes too much out of life
- Most lawyers aren’t rich
- Possible that what one does as a lawyer is a moral end in and of itself
- The attainment of practical wisdom (makes being a lawyer a moral means to an end)

What makes a good lawyer?

- objective about clients interests, but empathetic about their feelings
- knows what moves people
- good judgment

Roles lawyers assume

- judge
- counselor
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Definitions
Affidavit of Ownership: A voluntary declaration of ownership written down and sworn by
the declarant before an officer authorized to administer oaths.

Bailment: A delivery of personal property by one person (the bailor) to another (the bailee)
who holds the property for a certain purpose under an express or implied-in-fact contract;
involves a change in possession but not in title.

Cause of Action: (1)A group of objective facts giving rise rise to one or more bases for suing;
a factual situation that entitles one person to obtain a remedy in court from another person. (2)A
legal theory of a lawsuit

Complaint: The initial pleading that starts a civil action and states the basis for the court’s
jurisdiction, the basis for the plaintiff’s claim, and the demand for relief.

Consideration: An act, forbearance, or return promisee bargained for and received by the
promisor from the promisee; that which motivates a person to do something. Consideration or a
substitute such as promissory estoppel is necessary for an agreement to be enforceable.

Conversion: (1)The act of changing from one form to another; the process of being
exchanged. (2)The wrongful possession or disposition of another’s right whereby that other
person is deprived of the use and possession of property.

Demurrer: A pleading stating that although the facts alleged in a complaint may be true, they
are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an
answer (ie: motion to dismiss)

Detinue: A common law action to recover personal property wrongfully detained by another.
Plaintiff must prove: superior possessory right; not legal ownership. Remedy: item OR value of
the item (at the end of action), damages for the detention.

Dicta: (1)Statements of opinion or belief considered authoritative because of the dignity of the
person making it. (2)Familiar rules or maxims

Due Process (Procedural): The minimal requirements of notice and a hearing guaranteed
by the Due rocess Clauses of the 5th and 14th amendments, especially if the deprivation of a
significant life, liberty or property interest may occur.

Due Process (Substantive): The doctrine that the Due Process Clauses require legislation
to be fair and reasonable in content and to further a legitimate governmental objective.

Ejectment: A legal action by which a person wrongfully ejected from property seeks to
recover possession, damages, and costs. The essential allegations in an action for ejectment are
that (1)the plaintiff has title to the land, (2)the plaintiff has been wrongfully dispossessed or
ousted, and (3)the plaintiff has suffered damages.
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Equity: A right, interest or remedy recognizable by a court of equity. Usually a non-monetary

remedy, such as injunction or specific performance, obtained when available legal remedies
cannot adequately redress the injury.

Formal Contract: An enforceable agreement between 2 or more parties to do or not to do a

thing or set of things

Formal Style: Opinion and decision guided according to case law and precedent

Grand Style: Policy driven decision

Lien: A legal right or interest that a creditor has in another’s property, lasting usually until a
debt or duty that it secures is satisfied.

Nolle Prosequi: A legal notice that a lawsuit or prosecution has been abandoned.

Non Assumpserunt: Not guilty plea

Nuisance: A condition, activity, or situation that interferes with the use or enjoyment of
property; unlawful use of property to the discomfort, annoyance, inconvenience of another.
Requirements: actual interference with use and enjoyment of property, does not have to be on P’s
property. Remedy: damages if there is substantial harm

Period Style: The way a judge forms his opinions; either more policy driven or more case law
driven. Refers to a way of thought, not a writing style.

Personal Jurisdiction: Power of the court over a particular person. Power to haul a person
into court.

Pleading: A formal document in which a party to a legal proceeding sets forth or responds to
allegations, claims, denials, or defenses.

Quantum Meruit: Reasonable value of services; damages awarded in an amount considered

reasonable to compensate a person who has rendered services in a quasi contractual relationship.

Quantum Valebant: Reasonable value of goods and materials

Redelivery Bond: what person must file if they decide that they’re not going to return the
item being requested. Must be filed with affidavit of ownership.

Remand: (1)Act or instance of sending a case, claim or person back for further action. (2)An
order remanding a case or claim.

Replevin: An action for the repossession of personal property wrongfully taken or detained by
the defendant, whereby the plaintiff gives security for and holds the property until the court
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decides who owns it. Prove: superior possessory right; not legal ownership. Remedy: item
(returned immediately), damages for the taking/detention.

Res Judicata: (1)An issue that has been definitively settled by judicial decision. (2)An
affirmative defense barring the same parties from litigating a second lawsuit on the same claim,
or any other claim arising from the same transaction or series of transactions and that could have
been- but was not- raised in the first suit.

Rule Absolute: Affirmation of Rule Nisi grant of new trial.

Rule Nisi: Temporary granting of new trial. Asks ct. to make a ruling that does not have any
force as of yet, means that the side not asking for rule nisi can come forward with new evidence
to prove why there should not be a new trial. If the ct. still thinks there should be a new trial then
a rule absolute and a new trial is granted.

Subject Matter Jurisdiction: Authority of a court over a case; constitutional competence to

hear a case.

Trespass: a cause of action to recover damages for unlawful entry into another’s property.
Requirements: must show that damage was done while property was in the rightful owner’s
possession, must be immediately injurious, does not require substantial harm (any harm works).
Remedy: Damages in proportion to the harm, damages for the time that the property was invaded
(nominal).