Wednesday, November 28, 2007
In his dissent in the recent contracts case, Seawright v Amer. Gen. Fin. Serv., Inc., Judge Boyce F. Martin relied on a rather unusual authority in the lone footnote to the dissenting opinion. Rather than citing to Williston or Corbin or some other learned treatise or court, Judge Martin referenced a conversation between Homer Simpson (picture, left with pink donut . . . donut, mmmmrrrrrggggghhh (slobber)) and God (pictured left, without donut).
In the case, plaintiff Seawright claimed that she was discharged by her employer in violation of state anti-discrimination law and the Family and Medical Leave Act. Defendant sought to compel arbitration, citing an arbitration agreement to which it claimed Seawright had agreed. Seawright countered that she had never signed the agreement, but the majority found that she had "signaled her assent" to the arbitration agreement "through action," in this case by continuing her employment.
The dissent found "no proof that she manifested assent to the contract." And here is where the opinion becomes animated. "Without a signal that she understands that a contract is being made," Judge Martin queried, "how is one to know if she has truly accepted?" There follows a footnote:
Homer Simpson talking to God: "Here's the deal: you freeze everything as it is, and I won't ask for anything more. If that is OK, please give me absolutely no sign. [no response] OK, deal. In gratitude, I present you this offering of cookies and milk. If you want me to eat them for you, please give me no sign. [no response] Thy will be done." The Simpsons: And Maggie Makes Three (Fox television broadcast, Jan. 22, 1995).
Hat tip to my student, Alison Preest, for pointing out the case to me.
Monday, November 26, 2007
This decision by Judge Sylvia Ash (NY Supreme, Kings County) in Andreani v. Romeo Photographers & Video:
Defendant is a professional photography and video studio, owned and operated by Frances Romeo. On December 31, 2005, Plaintiff entered into a contract with Defendant for Defendant to photograph and videotape his wedding. The contract price was $5,400 which Plaintiff paid in full. Pursuant to the terms of the contract, Defendant was obligated to provide 3 professionals to photograph and videotape the wedding and provide 70 pictures for the wedding album.
Plaintiff testified that on the day of his wedding, April 9, 2006, only 2 professionals showed up, a photographer and a videographer. Plaintiff states that while 360 pictures were taken of the wedding, most of the photos were duplicates; that there were no individual table or group photos; no photos of the guests dancing; no photos of the bride's family; no black and white photos; no special effects shots; no collage shots; no photos of the groomsmen; no photos taken during the cocktail hour; minimal shots of the guests toasting the bride; minimal shots of the wedding guests; and incomplete shots of the bridal party. Plaintiff further asserts that the pictures taken at his wedding were not representative of the pictures shown to him in the Defendant's sample wedding albums. He argues that the pictures produced for his wedding album were unacceptable in that they were amateur with respect to positioning, poses, and lighting and that the pictures failed to adequately commemorate his wedding. He testified that while he was satisfied with the video, he was not satisfied with the wedding pictures.
Frances Romeo testified that the contract did not provide for any special effects, collage or black and white photos, nor did the contract stipulate a specific number of photos to be taken. The contract provided that the wedding album would consist of 70 photos selected from the total number of photos taken. A total of 360 photographs were taken. Mrs. Romeo further testified that she has been in the photography business for over 25 years, is personally involved in all final products and that she is happy with the final pictures in Plaintiff's wedding album.
Defendant's witness, Joseph Romeo, testified that he is the spouse of Frances Romeo and has been a professional photographer for over 40 years. Mr. Romeo testified that he has operated Defendant's photography and video studio for the past 7 years and photographs approximately 90 weddings per year. He stated that he has received specific training from the equipment manufacturers on how to operate Defendant's photo lab equipment and machines. He further stated that he reviews proofs, correct proofs color, is familiar with color coordination, and that he personally supervised the color printing of the pictures in Plaintiff's wedding album.
Defendant's second witness, Isaka Baribon, testified that he has been the Senior Photographer at Defendant's studio for the past 14 years and takes pictures for over 100 weddings per year. Mr. Baribon stated that he was the photographer for Plaintiff's wedding, that the third person who did not show up on the date of Plaintiff's wedding was the helper who carries the studio lights. That the pictures taken were not affected by the failure of the helper to show up because he personally took care of the lighting equipment himself. Mr. Baribon further stated that there were no pictures taken of the bride and her family because the bride told him she did not have time to take those pictures and that the bride also told him to only take large group shots.
BREACH OF CONTRACT ACTION
It is well settled that a party entering into a contract to retain another to perform services can expect performance with the reasonable care, skill and diligence owed generally by practitioners in that particular trade (Milau Associates v. North Ave. Development Corp., 42 NY2d 482, 486; Bialo v. Walter Lowlier, Inc., 160 AD2d 559). In the case at bar, although there was no provision in the contract specifying how the photos were to be taken, New York recognizes an implied promise in a contract to perform the contract in a skillful and workmanlike manner (Bialy v. Walter Lowlier, Inc., supra; Mohawk Overall Co. v. Brown, 163 AD157). A party undertaking to perform work is charged with a common law duty to exercise reasonable care and skill according to standard practices in the trade. (International Fidelity Ins. Co. v. Gaco Western Inc., 229 AD2d 471, 474). The failure to comply with this implied duty to perform in a skillful and workmanlike manner may entitle the other party to damages resulting from said failure (Mohawk Overall Co., supra; Pitcherello v. Moray Homes, LTD., 150 AD2d 860; DeLuca v.Wahl, 140 AD2d 956).
Monday, November 19, 2007
According to press reports, Rodriguez has quipped that he and the New York Yankees are in the "bottom of the fifth inning" in their negotiations on his new contract, which is reported to be a 10-year, $275 million deal. Huh? Ten years?!? Rodriguez is the best, no doubt about that, but he just completed his 14th season. He's 32. Will even the Yankees want to be paying A-Rod $27.5 million when he is 42, or even 39? Don't the Yankees really need pitching and can they afford to get it if they're saddled with obligations to A-Rod? And will anybody want A-Rod in New York if he can't deliver a title? And unless A-Rod can alternate between 98-mph fastballs and knee-buckling curveballs, I don't see any deliveries heading towards the Bronx.
I suspect that there are many things that I do not understand about such contract negotiations. The main thing I don't understand is why the Cubs are not trying to grab A-Rod. Even I can easily understand what it would do for the Cubs' line-up if A-Rod joined the Cubs: Soriano, Any Shmoe Who Can Hit .280, D. Lee, A-Rod, Aramis Ramirez, etc. That's a scary line-up. But the Cubs have said they are not interested in A-Rod because they like Ramirez at third. But can't A-Rod also play short? I'm just asking. . . . Are the Cubs really saying that they can't make room on their roster for a three-time MVP and future Hall-of-Famer because they're building their middle infield around Ryan Theriot?
The other thing I don't understand is why the Yankees are offering A-Rod $275 over ten years when no other team seems ready to offer A-Rod a deal anything like that. The San Francisco Giants have stated that signing A-Rod would be "a reach." It seems like the only other team seriously interested is the Angels, and I haven't seen any reports about the Angels throwing the kind of money at A-Rod that the Yankees are talking about. The Red Sox have been conspicuously absent from all the A-Rod talk, so against whom are the Yankees actually bidding?
Friday, November 16, 2007
On Friday, December 14, 2007, the University of Washington and Lee, Lexington, Virginia, will host a "Roundtable on Restitution and Unjust Enrichment in North America." This information from Professor Eoin O'Dell:
The main point underpinning the Roundtable is to get North American (ie, Canadian and US) Restitution scholars, practitioners, judges and others with an interest in the subject, together in one place, talking about current legal issues in the Law of Restitution and Unjust Enrichment. There seem to be too few opportunities to do so, except on the margins of other more generally focused events. The hope is that this informal Roundtable will provide just such a context. Given that the ALI's Restatement Third of Restitution is at a crucial stage, and that the Supreme Court of Canada's recent case law is proving controversial, this would seem an opportune time.
There are full details on the Roundtable website including a blog to keep you up to date with developments as they unfold over the next six weeks. If you are able to attend, please register using the simple online registration form.
Thursday, November 15, 2007
Wednesday, November 14, 2007
According to press reports, supermodel Gisele Bundchen, pictured near left, is demanding to be paid in Euros rather than in U.S. currency. According to Bloomberg, Bundchen is making this demand so that she can "remain the world's richest model" and she is insisting on payment in Euros even in a new contract entered into with Cincinnati-based Proctor & Gamble.
Inspired by her example, and by my desire to remain (well, become actually, but let's not quibble) the world's richest contracts law professor, I demanded that I be paid in Euros beginning in the next academic year. Dean Jay Conison, pictured far left, was unmoved. "Jeremy," he said, "I know Gisele Bundchen. Gisele Bundchen is a friend of mine. You're no Gisele Bundchen. And please stop vogueing."
This isn't over, Conison!
Talk about burying the lead! National Public Radio's report, "Singing Law Professor Rocks the Classroom" begins by noting that Contracts "can be one of the most tedious, dry and dreaded classes that first-year law students have to take." Well, Contracts probably ranks in the top ten of such classes, but since students only take about eight classes in the first year, and all of them are more tedious, dry and dreaded than contracts, NPR is hardly going to win a Pulitzer for its reporting. And then, next to a photo of Boston University's Mark Pettit "channel[ing] his inner Tom Petty," the report describes Professor Pettit as a "tweedy, balding buttoned-up kind of guy." I smell a set-up.
Returning to reality, NPR's coverage then goes on to explain how Pettit wins hearts and minds by performing various contracts-themed compositions to the tune of popular songs. Pettit thus wins accolades as students' favorite professor and contributes to Boston University's reputation as a great teaching law school because of its "quirky professors who make class more interesting."
The website linked to above also includes a link to recordings of some of Professor Pettit's contracts songs. An exclusive release of his complete oeuvre through K-Tel records is in the works, according to my sources.
By the way, lest you think Professor Pettit is a Dance 10, Looks 3 type, we remind our readers that the Blog has also recently noted his quality scholarship.
Wednesday, November 7, 2007
Dissatisfied with a bum refrigerator, John Violette has filed suit against Sears Holding Corp. Violette claims the fridge he bought from a Port Arthur Sears last year has never worked properly.
Violette's suit was filed with the Jefferson County District Court on Nov. 2.
According to his petition, Violette purchased the refrigerator at the Port Arthur Sears on March 5, 2006. Sears delivered the refrigerator and "negligently serviced and/or installed" the appliance.
"In exchange for defendant's products and services, plaintiff agreed to compensate defendant with monetary payment," the suit said. "Defendant has failed to provide a refrigerator that meets the terms of plaintiff and defendant's agreement. Defendant has not fulfilled its obligations under the terms of the agreement."
The suit goes on to allege that Sears' conduct includes fraud, negligence, gross negligence, negligent misrepresentation, breach of contract, breach of warranty and breach of fiduciary duty.
"Plaintiff further alleges that if he does not have a cause of action for breach of contract, that plaintiff is entitled to recover under quantum meruit and promissory estoppel," the suit said.
Quantum meruit is a Latin phrase meaning "as much as he has deserved." In the context of contract law, it means "reasonable value of services."
The doctrine of promissory estoppel prevents one party from withdrawing a promise made to a second party if the latter has reasonably relied on that promise and acted upon it.
Violette is suing for expectancy, reliance and restitution damages, plus punitive damages.
[Meredith R. Miller]