ContractsProf Blog

Limerick of the Week: Gay Jensen Farms Co. v. Cargill, Inc.

Gay Jensen Farms Co. v. Cargill Inc. is a great case for teaching the very important principle that contractual relations, including agency relations, can be implied through conduct.  In this case, the Warren Grain & Seed company defaulted on contracts made with farmers for the sale of grain.  Because Warren was judgment-proof, the plainitffs went after Cargill on the theory that Warren had become Cargill's agent.  The court found Cargill could be held liable as a principal both because of its creditor/debtor relationship and because of its buyer/supplier relationship with Warren.  Especially in connection with the former relationship, there was strong evidence that Cargill exercised effective control over Warren's business.

Gay Jensen Farms Co. v. Cargill, Inc.

Warren was deep in the hole,
So it went on the Cargill, Inc. dole.
No simple creditor,
Cargill's a predator,
And must pay, since it had control.

[Jeremy Telman]

New Topical Category: Limericks

Thanks to Joe Hodnicki of the Law Professors Blog Network and to Frank Snyder, whose limitless indulgence permits me to post here, we now have a new topical category for the Limericks fans out there.  It has not yet been fully populated, but I hope to do so over the next few weeks.  Then, those of you who want to gather the full collection of Limericks for Lawyers can do so by clicking on "Limericks" in our Topical Archive.  You can have a look at what's there now here.

[Jeremy Telman]

Limerick of the Week: Gorton v. Doty

After a long hiatus from Limerick posting, I have decided to share with the blog's readership a selection from Volume II of my collection of Limericks for Lawyers.  Volume II summarizes cases covered in my Business Associations course, but many of the cases for that course raise contractual issues, so I figure that's a sufficient hook to permit me to post them here.

I teach the course using Klein, Ramseyer and Bainbridge's casebook, so those of you familiar with that book will know the cases.  Volume I of the Limericks for Lawyers series was based on my first-year contracts course, in which I used Knapp, Crystal and Prince's casebook. For the coming year, I am switching to the Conracts: Law in Action book, which means new cases, and yes, new contracts Limericks coming in the Fall.  This is not a knock on the Knapp book, of course, which I have enjoyed using.  I just need to use some new materials so as to awaken from my dogmatic slumbers.

So, without further ado.  The first case I teach in Business Associations is Gorton v. Doty, in which a high school teacher (Doty) is repaid for her patriot efforts on behalf of her school (Soda Springs) football team with a tort claim.  She loaned her car to Coach Garst so that he could drive the team to a game.  The Gorton boy was injured when Coach Garst got into an accident, but Ms. Doty was held liable as the principal since the court found that she had effectively made Coach Garst her agent by conditioning the loan of her car on his agreement to be the sole driver.

Gorton v. Doty

The court made Ms. Doty the heavy
When Coach Garst demolished her Chevy.
When Soda Springs lost the game,
Coach accepted the blame,
But the principal pays the tort levy.

[Jeremy Telman]

Carry Me Back to Ye Olde Virginnie

It's amazing what you can find on the Internet these days.  For those who teach the most famous contracts case in the history of the Old Dominion, Lucy v. Zehmer, here's a blast from the past:  A postcard from Ye Olde Virginnie, "The One Stop Motel" in McKenney, Virginia.

The card isn't dated, but probably comes from the early 1960s.  The back says, "Individual and Family-type rooms -- Air conditioned -- Steam Heat -- Television -- Restaurant -- Service Station -- Garage."  The view appears to be from the south, coming up U.S. Highway 1 from Petersburg.

[Frank Snyder]

More on Reed v. UND

Those of you who use the Epstein-Markell-Ponoroff contract law casebook teach the case of Reed v. University of North Dakota, 589 N.W.2d 880 (N.D. 1999).  You might be interested in some background information.

Reed is a sad case, in which a young UND hockey player was required by his coaches to run in a 10-kilometer charity race as part of his conditioning program.  About 200 yards short of the finish line, he collapsed from dehydration.  Rushed to the emergency room, he eventually needed one kidney and two liver transplants.  He sued both UND and the North Dakota Association for the Disabled, the group that had sponsored the event.  His suit against UND was knocked out on other grounds, and his suit against NDAD had to overcome the fact that he had signed a liability release before the race.  The player argued it was unenforceable for lack of consideration.  No, said the court, there was consideration of the release, and therefore it was enforceable.

The hockey player was Jace Reed (left).  Reed had been a high school star at Grand Rapids High School in Minnesota.  In 1989 he was taken in the fifth round of the National Hockey League draft (86th overall) by the New York Islanders -- ahead of future NHL stalwarts like Pavel Bure (Canucks), Aaron Miller (Nordiques), and Dallas Drake (Red Wings).  Instead of signing a pro contract, Reed opted to hone his skills at UND, a perennial hockey power that has won seven NCAA championships, three in the ten years before Reed joined.  At UND, Reed played in 23 games his first two seasons, and was preparing to battle for a starting spot in his third year.

That ended with his injuries.  During his hospitalization, the "big, tough defenseman" nearly died and dropped from 215 pounds to 145.  Doctors were not sure he would even be able to return to school, let alone play sports.  His hockey days were over.  Ultimately, he was able to return to UND in the fall of 1992.  The school's "Big Green Club" of athletic boosters raised the money to pay the remainder of his school expenses.

[Frank Snyder]

Teaching Assistants: Geoffrey R. Watson

We broke some hearts in last week's post on Kirksey v. Kirksey, as several generations of contracts profs and students were forced to part with their fantasies regarding Isaac and Antillico (Angelico) Kirksey.  Well, this week we have very good news.  Levi Wyman lived!  And his father may even have loved him!!  Or so says Geoffrey R. Watson (left) in In the Tribunal of Conscience: Mills v. Wyman Reconsidered, 71 Tulane L. Rev. 1749 (1997).

Like Kirksey, Mills v. Wyman is a familiar case, involving a Good Samaritan (Mills) who cared for the dying Levi Wyman, estranged son of Seth Wyman.  Mills wrote to Seth to inform him of his son's condition and to invite Seth to visit his son.  According to the case, Seth replied that he could not come but would cover any costs Mills incurred in caring for Levi.  Levi Wyman died, despite Mills' ministrations, and Seth's promise was not kept.  Mills sued to enforce the promise.  The Supreme Judicial Court of Massachusetts concluded that Seth Wyman had a moral obligation to pay Mills but no legal one and ruled for Wyman.

Watson finds fault with everything about the Massachusetts' court's opinion.  Seth Wyman never promised to pay Mills, and Levi Wyman did not die until many years later.  Moreover, if the facts were as the court construed them, Watson thinks the "court missed an opportunity to shape a more sensible doctrine of promissory liability."  Id. at 1752.  Unlike those killjoys, Casto and Ricks, who sucked all the joy and mystery out of Kirksey, Watson leaves some of the mysteries of Mills unresolved.  For example, Watson's exhaustive historical research did not enable him to explain why the court treated Levi Wyman as a corpse in 1825 when as late as 1829 he was engaged in spending and wasting "his estate by excessive drinking and idleness."  Id. at 1757.  We do learn some dramatic details of Levi's illness, however.  For example, his symptoms included bouts of delirium during which "he leaped out of a chamber window to the immminent hazard of his life" and for which he was treated by a "prominent Hartford physician" with "1 gallon spirits" and pills.  Perhaps the Massachusetts court simply indulged the safe assumption that in the 1820s medical treatment for an illness such as Levi's was little more than an unpleasant prelude to death.

In any case, while Mills clearly thought he had received a promise from Seth to pay for services rendered, Watson views Seth's letter as far more equivocal, suggesting at best an intention to pay for future services.  Id. at 1761.  Watson suggests that Seth's failure to visit his dying son is best explained by Seth's advanced age (63) and frail health rather than by lingering ill-will towards Levi.  Id. at 1762-63.  In large part, Watson's critique of the Massachusetts court turns on his conviction that Seth made no promise.  While the court viewed Seth as a man "willing to have his case appear on record as a strong example of particular injustices sometimes necessary resulting from the operation of general rules," Watson paints a different picture of Seth:

Wyman did not make the promise and thus never "determined" to break any promise.  Wyman's "transient feeling of gratitude" might have been a sincere expression of willingness to pay for Levi's future expenses, but not his past ones.  Wyman's "willingness" to stand as an example of "injustice" was more likely a determination to fight for his rights. 

Id. at 1781.  Hmmm.  Do we like Seth better if we think he went to the Massachusetts Supreme Court to fight for his right not to pay a penny to the man who nursed his ill son back to health and then sought full reimbursement and not only reimbursement starting from the moment of the promise?

As to the doctrine of moral consideration, Watson thinks the law was much less clear than the court suggests, as Lord Mansfield had declared in a 1785 case that where there is a moral obligation and a promise, "the honesty and rectitude of the thing is a consideration."  Id. at 1783.  Lord Mansfield's position met with resistance in England, but was viewed sympathetically in America.  In the 1813 case, Bowers v. Hurd, the same Chief Justice Parker who decided Mills, enforced a moral obligation, even where no antecedent debt was found.  Id. at 1784-85. Reminded of Bowers in the context of Mills, Justice Parker remarked that the case "has been doubted."  Id. at 1786.

In the final section of the essay, Watson summarizes theoretical approaches to the moral obligation doctrine, including: the revival or waiver theory, which seems to have informed the Mills decision (id. at 1790-93); the promissory restitution theory embodied in R.2d s. 86 (id. at 1793-95); Duncan Kennedy's concerns about the "legalization" of family relations (id. at 1795-96); and Richard Posner's economic defense of the moral obligation doctrine. (Id. at 1796).  Watson finds all of these approaches inadequate in terms of explaining the behavior of courts.  For example, theoretical approaches call for the enforcement of either a pre-existing obligation or of the subsequent promise, but courts do not consistently enforce either.  The Restatement approach, as well as Posner's, suggest where the law ought to go rather than to describing the law as it is.

Watson has his own ideas for reform that draw on the doctrine of restitution.  Watson argues that "[o]ur society suffers more from apathy than from altruism" (id. at 1801) and therefore proposes that the law create incentives to encourage Good Samaritans, like Mills and Joe Webb of Webb v. McGowin.  Watson acknowledges that an expanded restitutionary doctrine would impose considerable judicial costs of enforcement.  Id.  The solution is simple, however. 

A promise to fulfill a moral obligation should be binding regardless of whether it is supported by consideration.  It should be enough for the plaintiff to prove that the defendant's promise was made with intent to be legally bound.  The existence of a past "moral obligation" should be treated as prima facie evidence that the moral obligor does intend to be bound.

Id. at 1801. Intent to be bound would be evidenced, says Watson, not by the bizarre rigamarole of the consideration doctrine but by formal mechanisms, such as a writing or a seal.  Id. at 1802.  Watson concludes by predicting the ultimate demise of consideration doctrine: "Consideration doctrine, if indeed it was ever useful, has outlived its utility.  The next century will see the end of consideration as we know it."  Id. at 1804.  With the end of the consideration doctrine, Watson foresees a future in which legal liability will be more closely linked to moral responsibility -- and the proposed reform would also enhance efficiency by making promises "more valuable at relatively little social cost."

The rule in Mills v. Wyman, says Watson is "eminently forgettable;" it is both "incoherent and inefficient."  Id. at 1806.  The facts of Mills -- from which we can create competing narratives -- are what remains.

[Jeremy Telman]

Teaching Assistants: Casto & Ricks

Okay, so who are the two biggest killjoys in the legal academy?  William R. Casto (left top) and Val .D. Ricks (left bottom), that's who!

Why, you ask?  Because in their recent essay, "Dear Sister Antillico . . ." The Story of Kirksey v. Kirksey, 94 Georgetown L. J. 321 (2006), they solve every last mystery that one might derive from the Alabama Supreme Court's laconic opinion in Kirksey.  Their solution to the great mystery of Kirksey -- why did Isaac Kirksey invite his sister-in-law to live on his land and then evict her just two years later -- sucks all the romance out of the case.  History replaces economics as the dismal science.

In my mind, the key turning point of Kirksey involves a headstrong Antillico (portrayed by Merle Oberon) lured to his lodge on the Heights by a bold, passionate Isaac (portrayed by Laurence Olivier).  The climactic scene comes after the protagonists have lived within close proximity for two years:

Isaac: Dear Sister, I can't disguise my feelings for you any longer.  I must have you!  Will you be mine, all mine?!?

Antillico: Brother, control yourself!  Think of your dear departed brother, of my children!

I: But dearest, won't you show me the slightest kindness?

A: I'm sorry.  I'll always love you, but as a brother.

I: Then torment me no longer!  I shall not share this plot of land with you nor suffer to see your face, your figure.  Leave these lands that I may skulk along my properties in my solitary meanderings, contemplating the happiness that might have been but for your rank obedience to the rabble's law of etiquette!  Haunt me no more, pale specter of a life that might have been!

Or words to that effect.  Not so, say Casto and Ricks.  Isaac and Antillico were never lovers or anything of the sort.  Her name wasn't even Antillico -- it was Angelico -- and the case was all about land and the changing law of holding over on public lands in the 1840s. 

But seriously folks, it's a wonderful essay and here's just some of what you might learn if you read it:

Angelico was the fifth of twenty-eight children born to one John Connolly.  She seems to have inherited little other than her father's fecundity (if that's possible), as she bore at least sixteen children herself, eight or nine of whom accompanied her when she accepted Isaac's invitation and moved to Talladega County.  In so doing, she abandoned land on which she had "held over" and on which she may have earned a "preference" under a federal pre-emption grant Act of 1840.  In other words, if Angelico had not accepted Isaac's invitation, she likely could have purchased the land on which she was squatting for $1.25 per acre.  94 Georgetown L. J. at 343.  Those facts support an argument that Angelico offered good consideration in return for Isaac's promise to provide land for her and her family in that she suffered a legal detriment in quitting her land in a neighboring county.

Isaac was a far more successful businessman than his brother.  He owned a smith's shop as well as considerable property in Alabama and Texas.  He also seems to have had some income from the slave trade, and he himself came to own in excess of fifty slaves.  Id. at 332-33.  He was, in short a "very economical" man (id. at 334) and hardly the romantic anti-hero I had hoped for.  In any case, the authors point out, Isaac had been married to Angelico's sister, and when she died, he re-married, happily for all we can tell, just six months before inviting Angelico onto his land. Id. at 325.

As Casto and Ricks inform us, Isaac's motivation for inviting Angelico to occupy some of his land derived from his own desire to occupy as much land as possible.  When he wrote to her that he had "more open land than [he could] tend," he did not mean that he needed Angelico and her children as farm hands.  Rather, Isaac was trying to get around federal limitations on the amount of land to which one property owner could claim pre-emption rights.  Id. at 346-47.  The scheme fell apart when the law changed so as to make it impossible for Isaac to use Angelico as his proxy.  Indeed, she would have a claim on the land and he would not.  Hence Isaac's proposal to Angelico that she move to a cabin in the woods, which the court described as "not comfortable," by which it meant having no outhouse and no access to water.  Id. at 348.  He needed her off the land so that he could claim it, and in order to do so Isaac set his son up in residence.

The jury, according to Casto and Ricks, saw through Isaac's schemes and granted Angelico what it regarded as her expectation -- $200, the very amount that would enable her to purchase the 160 acres of land at issue at $1.25 an acre.  Id. at 351.  Casto and Ricks next take us through the reasoning of the Supreme Court, which they have to tease out of the dissenting justice's one-sentence explanation of the reasoning of his brethren, with the help of the rather fragmentary briefs that have survived.  The majority seems to have found that, even if Angelico suffered a detriment sufficient to serve as consideration (id. at 364), the detriment was not bargained for (id. at 368) and thus cannot be regarded as consideration.  There was precedent in Alabama for something like the doctrine of promissory estoppel, but Angelico's attorney did not raise it.  Id. at 369-70.

While Angelico's great-grandson won a silver medal in the 1920 Olympics and Isaac's great-great-great grandson (pictured at left) had a career in journalism which culminated recently in a mention on the Contracts Profs Blog (id. at 371-72), Angelico and Isaac lapsed into obscurity.  As the authors put it (rather chidingly, I think):

She is a single mother who perhaps led Thoreau's life of quiet desperation.  He appears to be an amoral entrepreneur who built a petty empire with callous -- even knowing -- disregard for his fellow human beings.  But Angelico's and Isaac's lives remain obscure.  There are no diaries, no treasure trove of letters, no cache of plantation records.  Any attempt to use them as archetypes would have to be based on wishful, even fanciful thinking rather than the surviving historical record.

Id. at 370.  Precisely.

Killjoys!

[Jeremy Telman]

Limerick of the . . . Month

It is great fun to teach Greiner v. Greiner as a companion case to Kirksey v. Kirksey.  Vive le difference! 

Still, I didn't teach the case last year, perhaps because I had not written a Limerick for it.  This year, I have attempted to correct that slight to this most deserving case.  I'm not all that happy with the Limerick.  The Limerick is true to the decision, in that it treats it as a promissory estoppel case, but it's hard to see why the court did not simply find a binding promise supported by consideration. 

Greiner v. Greiner

At wheat-sowing time, in a bank,
Maggie promised some acreage to Frank.
"He did nothing for me!"
Averred Maggie, with glee.
For his land Frank has Corbin to thank.

[Jeremy Telman]

Teaching Assistants: Douglas Baird

Douglas Baird (at left) has an engaging historical essay, Reconstructing Contracts: Hamer v. Sidway, in Foundation Press's Contracts Stories, pp. 160-185, which Baird also edited.  The essay does far more than provide a narrative background (actually several narrative backgrounds) on what Frank Snyder has called "the granddaddy of all unilateral contracts cases."   The case involves a pledge by William E. Story, Sr. ("William") to his nephew, William E. Story, 2d ("Willie") that William would give Willie $5000 if Willie abstained from drinking, smoking and gambling until his 21st birthday.  Judge Parker's decision for the N.Y. Court of Appeals articulates the doctrine that forebearance from engaging in activities in which one has a legal right to engage suffice as consideration.  Parker's opinion reduces the facts of the case in a way that render it ideal for teaching that particular doctrine.  Baird's essay complicates the facts and illustrates how they can be spun to justify any number of rulings on different legal grounds. 

Baird begins with a fascinating account of the role Hamer v. Sidway has played in legal education right from the time it was decided.  He then proceeds to a number of "reconstructions" of the facts of the case. In various versions of the case, Willie can come off as a "wayward adolescent" or as "a responsible adult who . . . has to care for an elderly parent."  (161)  Baird expresses skepticism about courts' abilities to sort out family relationships -- which may be both intimate and commercial -- and to determine which promises made in the family context ought to be enforced.  While Judge Parker's opinion in Hamer reduces the focus of the narrative to the relationship between William and Willie, Baird suggests that the conflict had at least as much to do with William's relationship to his older brother, Willie's father, and with William's concerns about making sure his neices were cared for after his death.

In the formalist version of the facts of Hamer, Willie bargains with his uncle, reserving for himself the right to play cards and billiards, "so long as it was not for money." (164)  In formalist hands, the case served to limit the number of enforceable promises, becasue the facts of Hamer could be contrasted with other familial promises in which the elements of a bargain were not present.  Hamer is thus a very satisfying case from the formalist, doctrinal perspective, but Baird notes that formalists such as Langdell and Holmes did not provide -- and did not care to provide -- any justification for the principle of bargained-for exchange as a means of determining which promises ought to be enforced.  (165)

Focusing on different facts, Corbinian Legal Realists questioned whether Hamer involved a bargain at all.  They saw William's statements as adding a condition (Willie needed to straighten up and fly right) to a pre-existing gratuitous pledge William had made repeatedly since Willie was a boy. (166)  Still, Legal Realists could live with the result in Hamer because it protected Willie's reasonable reliance on his uncle's promise.

Baird next reconstructs the facts from the perspective of William's executor, Franklin Sidway (at left). From this perspective, it is not hard to see why New York's intermediate appellate court refused to enforce William's promise.  William had already given Willie and his father $5000 to start up a business.  That business failed, leading Willie into bankruptcy.  Later, William again set up Willie and his father in a business, at which time Willie executed a release discharging William from any claims Willie might have against him.  (176)  There were also good grounds for believing that Willie's assignment of his claim against his uncle was a fraudulent transfer. (177)  From this perspective, it seems that the promise, if there was one, was either already fulfilled (perhaps twice) or excused.  It must have been surprising to Sidway that the court even reached the issue of consideration.

Baird then reconstructs the facts of Hamer again, this time from the perspective of Willie's father, James.  Here Baird assembles from the court record evidence of the complex financial arrangements between the brothers.  Apparently William provided for James, both by paying him to care for their demented father and by allowing him to live in properties that William owned provided that James contributed to the renovations of such homes.  William might have viewed these arrangments as a form of charity.  James more likely viewed the arrangements as just compensation.  In any case, Baird speculates that William's sudden death may have deprived James of a home.  Willie may have pursued his claim (through his mother-in-law) against his uncle in order to procure the means to house his father.

In his conclusion, Baird reminds us that whether or not a promise should be enforceable turns "on whether enforcing that promise will make the society in which it operates a better place."  (185)  I have a hard time deriving that lesson from the conflicting narratives that Baird reconstructs.  If by "that promise" Baird means William's specific promise to Willie, his multiple narratives suggest that courts are ill-equipped to decide the question.  Should a court be deciding whether society benefits from favoring James Story over William Story, Sr.'s nieces? 

If by "that promise" Baird means "that kind of promise" -- or "that category of promises," one's answer will depend on what sort of promise one thinks William made to Willie.  Choosing which category fits the promise will also turn on one's preferred reading of the facts, and once again, Baird seems to think courts are not well-positioned to make such choices.  Perhaps Baird is advocating placing William's promise in the category of "familial promises," a category of promises that we know should rarely be enforced. But some such promises clearly should be enforced, and it would be helpful to be able to identify that sub-category.

[Jeremy Telman]

Conference: We Love Lucy

This year is the 90th annivarsary of Judge Cardozo's opinion in Wood v. Lucy, Lady Duff Gordon, and it will be marked this fall with a conference at Pace Law School in White Plains, New York.  Jim Fishman (Pace) is the organizer, and the proceedings will be published in a special issue of the Pace Law Review.

Click on the "continue reading" link for the tentative program, which should be interesting not only to contracts scholars but to fashionistas. , since it will feature a wealth of detail about the fashion designer known as "Lucile" and the world in which she lived.

[Frank Snyder]

THE ENDURING LEGACY OF
WOOD V. LADY DUFF GORDON

Pace University School of Law
November 8th and 9th 2007

Keynote Speaker
Joseph Perillo (Fordham), Editor, Corbin on Contracts
“Neutral Standardizing Of Contracts”

PANELS

Implication, Interpretation and Default Terms
Peter Linzer (Houston)
     “Implication and Its Discontents”
Nicholas Weiskopf (St. John’s)
     “Wood v. Lucy: The Overlap between Interpretation and
     Gap-Filling”
Yong-Sung (Jonathan Kang) (U. Washington),
      “Our Understanding of Implied Terms, Imperfectly Expressed”
Melvin Aron Eisenberg (Cal-Berkeley), Commentator

Wood v. Duff Gordon as a Teaching Vehicle
Deborah Zalesne (CUNY),
     “Integrating Academic Skills into First Year Curricula:  Using
     Wood v. Lucy, Lady Duff-Gordon to Teach Fact Identification and
     Fact Analysis”
Miriam Cherry (Pacific)
     “Lucy, Lady Duff Gordon: (Social) Class in the Classroom”
Deborah Post (Touro)
     “Teaching Contract as Commitment: Lucy Lady Duff Gordon
     and Promises ‘Instinct with Obligation’”
Celia Taylor, (Denver)
     “Teaching Ethics in Context: Using Wood v. Lucy, Lady Duff
     Gordon in the First Year Curriculum.”

Lucile as a Fashion Designer and Feminist
Rebecca Matheson (Costume Inst., Metropolitan Museum of Art)
     “'Creator of Fashions’: Lady Duff-Gordon in Her Own Words”
Molly Sorkin (Museum of the Fashion Institute of Technology)
     “After the Verdict: Lady Duff-Gordon and the Fate of Lucile, Ltd.”
Lewis Orchard (Fashion Designer & Lucile, Ltd. Collector)
     “Lady Duff-Gordon: An Edwardian Designer in a Modern Context”
Lourdes Font (Fashion Institute of Technology),
     “Teaching Lucile: Rethinking the Canon of Fashion History”

The Case in Context
Andrew Tettenborn (Exeter)
     “What It’s Worth to Do Your Best”
Larry DiMatteo (Florida)
     “Cardozo as a Talisman for a New Age of Contract Interpretation"
Meredith Miller (Touro)
     “A picture of the New York Court of Appeals at the Time of
     Wood v. Lucy Lady Duff-Gordon”
Megan Richardson (Melbourne)
      “Wood v. Lucy Duff-Gordon and the Cult of Personality”
Monroe Friedman (Hofstra)
     “Lucy’s Case and Positive Unconscionability”
Victor Goldberg (Columbia), Commentator
Walter F. Pratt (South Carolina), Commentator

Implication and Best Efforts in the Employment Context
Robert Bird (Connecticut)
     “An Employment Contract ‘Instinct with an Obligation’:
     Costs and Contexts”
Rachel Arnow-Richman (Denver)
     “Good Faith, Reasonable Notice and Indefinite Contracts:
     Re-Imagining Employment as a Bilateral Relationship”
Emily Gold Waldman (Pace)
     “Fulfilling Lucy’s Legacy: Recognizing Good-Faith Obligations
     Within Explicit Job Duties”
Kenneth Dau-Schmidt (Indiana), Commentator

There will be a virtual tour of the exhibit “Designing the It Girl: Lucile and her Style” organized by the Museum of the Fashion Institute of Technology, March 1-April 4, 2005

Hadley v. Baxendale Marked at Ceremony

One of contract law's enduring monuments, Hadley v. Baxendale, will soon have a monument of its own.  Authorities in Gloucester, England, will memorialize the case next week with two plaques to be placed on the old City Flour Mills building (left), where a broken shaft in 1853 led to one of the most important contracts damages cases of all time.  Here's the press release from the Central Gloucester Initiative:

Two plaques will be unveiled at a restored flour mill in Gloucester Docks next week (July 21, 2007, 6 p.m.) to celebrate an historic court ruling.

The ceremony will be performed by Franklin G, Snyder, Professor of Law at Texas Wesleyan University in Fort Worth, accompanied by the Mayor of Gloucester, Councillor Harjit Gill.

The unveiling is part of the fourth annual Gloucester International Legal Conference being held at the Oxstalls Campus of the University of Gloucestershire and attended by delegates from all over the world.

The theme of this year’s event is “Law and Justice in the Age of Globalisation,” and marks the 200th anniversary of the abolition of the transatlantic slave trade.

Richard Dennery, City Centre manager and director of the Central Gloucester Initiative  which has organised  the conference, said: “The plaques on the City Flour Mills -- now called Priday’s Mill --  record the landmark Appeal Court ruling of 1854, when the Court of Exchequer judge laid down the principles on which damages should be calculated.  The case of Hadley v. Baxendale, is still used as a famous precedent in legal schools and courts throughout the world.”

Paul James, Leader of the Gloucester City Council, commented: “This is another example of the rich historic tapestry that makes Gloucester such a wonderful place.  So many buildings around the city have a story to tell.  These plaques help to do exactly that for our residents and many visitors.”

Gloucester Historic Buildings Ltd., a company formed by the Gloucester Civic Trust and Gloucester City Council to promote the city’s history, has provided the cast metal plaques with sponsorship from the Central Gloucester Initiative.

Civic Trust spokesman, Hugh Worsnip, said: “Soon after brothers Jonah and Joseph Hadley started their flour mill in 1850, the crankshaft of the steam engine broke and had to be taken to London to serve as a pattern for a new one.  There were delays in transporting the shaft, so Hadleys sued Mr Baxendale, senior partner of carriers, Pickfords, for their loss of income.

“The jury at Gloucester Assizes awarded the Hadleys damages of £50 –- a lot of money in those days –- but Mr Baxendale appealed, and, in a ruling which has had enormous consequences throughout the world ever since, the appeal judge laid down the foreseeability rules.  In other words, damages had to reflect what could reasonably have been foreseen by both parties at the time contracts are made.

“This ruling has provided employment for lawyers and arguments in law schools throughout the world ever since.  It is mentioned in no fewer than 2,000 sites on the Internet.  So the Gloucester Flour Mills truly made legal history.”

After the ceremony delegates to the conference will attend a civic reception, hosted by the Mayor, at the North Warehouse.

[Frank Snyder]

Limerick of the Week

Parker v. 20th Century Fox is certainly a fun case to teach, and it raises all sorts of interesting policy questions.  In my class, I show a sequence of Shirley MacLaine images purporting to illustrate the facts of the case.  Unfortunately, copyright concerns prevent me from posting them here.  The image at left (available from the Wikipedia commons) hardly reflects her success in the case. 

Anyway, here it is, the last (for now) in my collection of contracts Limericks:

The studio's conduct was terrible,
And the actress's damage repairable
Only with a lead part
In a great work of art:
A film that is at least comparable.

[Jeremy Telman]

Limerick of the Week

Nora Ephron feels bad about her neck, and I feel bad that I can't come up with a better Limerick for Hadley.

Hadley v. Baxendale

Foresee that things can end badly
And keep that in mind, or else sadly,
A life of regret
Is all you will get
If your harm's consequential -- poor Hadley!

[Jeremy Telman]

Limerick of the Week

Through some incomprehensible oversight, I forgot to include Limericks commemorating these old chestnuts.

James Baird Co. v. Gimbel Bros.

When they offered a bid to James Baird,
The Brothers egregiously erred.
They were in deep shinoleum
For not laying linoleum,
But Judge Hand, their bottoms he spared.

Drennan v. Star Paving

After reading the views of Judge Hand,
Star Paving could not understand
What the fuss was about.
Bidders used to bail out;
Now all bow to estoppel's command.

[Jeremy Telman]

Limerick of the Week

In rejecting Mama Rizzo, Inc.'s arguments in Brookside Farms v. Mama Rizzo, Inc., Judge Kent wrote as follows:

"For the Court to allow Defendant to invoke the no-oral-modification clause after MRI itself induced and participated in the extended course of action it now complains of would be to convert the sale of basil leaves into a 'basil sale carcinoma' that would devour all reasonable commercial standards of behavior between merchants" (emphasis added).

Now I have my own standards for reasonable behavior, and I just didn't find the case Limerick-worthy.  But some of my students felt the phrase "basil sale carcinoma" needed to be memorialized in verse.  Facing an inevitable student rebellion, I composed the following in self-defense:

Brookside Farms v. Mama Rizzo's, Inc.

Addressing the judge as "Coxcomb-a,"
Mama Rizzo flew back to Roma.
In rejecting her Answer,
This judge has cured cancer,
The dread basil sale carcinoma.

[Jeremy Telman]

Limerick of the Week

As I said before, my casebook does not include the classic coronation cases, arising out of the postponed coronation King Edward VII, pictured at left.  I therefore expect my students to learn the history of the frustration of purpose doctrine solely by studying Limericks.  It's a very rigorous curriculum, and I still get complaints that some contracts doctrine is easily reduced to Haiku.

Krell v. Henry

Was Henry's whole purpose frustrated
When the King burst appendix dictated
That the crown must delay
It's coronation day?
Yes! So contract doctrine's updated.

[Jeremy Telman]

Limerick of the Week

This case may be so well known as to need no introduction, but if people are in the market for visual aids, at left are public domain images of the Surrey Music Hall and Gardens, the former of which was the music hall that burnt down in Taylor v. Caldwell.

Since neither this nor the coronation cases are included in the casebook that I use, and since I am usually way behind by the time I get to this subject matter, this is a portion of the course that I teach entirely through Limericks. 

Taylor v. Caldwell

• Taylor rented a hall like the Met's
  For the purpose of concerts and fetes
  When fire the hall downed,
  The court wisely found
  A way to excuse Taylor's debts.

[Jeremy Telman]

Limerick of the Week

I always have a hard time teaching Donahue v. FedEx, in which an employee-at-will is terminated after attempting to blow the whistle on his corrupt boss.  The court recognizes that there is a public-policy exception to the at-will doctrine but states that there is no public policy protecting whistle blowers.  There isn't?

Plaintiff, an employee at will,
Thought his boss had a hand in the till.
FedEx is correct;
"Bad faith" won't protect
Where policy contentions are nil.

I also have a problem because I can't get the last line of my Limerick to scan.

[Jeremy Telman]

Limerick of the Week

The end is near!!  Not only is the semester (and for some readers, the first year of law school) nearly over.  But I am almost out of Limericks.  Contracts Limericks, that is.  I still have a boatload of business associations Limericks (bwahaha!), but those will have to appear on a different blog, I suppose.

So, where would contracts profs be without celebrity contracts?  I mean, is there anything more certain to promote student interest than a law suit featuring Clint Eastwood?  Can any contract prof resist inviting Sondra Locke to ask herself, "Do I feel lucky?"  And then add, "Well do ya, punk?"  Now that's educatin'!  Of course, the time may eventually come when referencing "Dirty Harry" is about as hip as referencing "True Grit."  It's already quite hard to get students to care much about Shirley MacLaine.  And I think this is one reason why Sullivan v. O'Connor has dropped out of most casebooks.  On the other hand, in a few years, it should be possible to build an entire curriculum around Anna Nicole Smith.

Locke v. Warner Brothers

There once was an actress named Locke
Whose Ratboy is said to be schlock
Old Clint and Warner
Thought they could scorn her
In bad faith.  Now they're in hock.

[Jeremy Telman]

Limerick of the Week

Sherrodd, Inc. v. Morrison-Knudsen is a great teaching case.  It never ceases to outrage at least some students and thus leads to a very fruitful discussion of the pitfalls of the parol evidence rule.  In addition, it shows that a formal approach to contracts law is still with us, as the following Limerick illustates:

Sherrodd, Inc. v. Morrison-Knudsen

Behold, parol's bitter fruit:
Sherrodd's claim was deemed moot!
If he'd only known,
The great Corbin would groan
To see Williston's rule win repute.

[Jeremy Telman]

Limerick of the Week

This is a pretty poor Limerick, I admit it.  But let's face it: the facts of Thompson v. Libby are not such as to inspire great art.  In order to have anything to work with here, I had to make up some facts and pretend that the logs at issue in the case were defective because they were intended for the Christmas hearth but were not as fragrant as promised. 

In addition, this is one of several Limericks in which I defy conventional wisdom and employ the poetic device of enjambment in a Limerick.  Consider this an example of why conventional wisdom prevails.  But you see, that's what makes this Limerick so gosh darn funny!!

Thompson v. Libby

A plan to buy logs fit for Yule
Met up with the "four-corners" rule.
The parties, they feuded,
But the court, it excluded
Parol.  How Grinchy!  How cruel!

[Jeremy Telman]

Limerick of the Week

In a recent post, I complained about the difficulty of rhyming estoppel.  To my surprise, nobody wrote in to offer suggestions.  Very disappointing.  So this is what I'm left with:

Alaska Democrats v. Rice

This just in from our anchor, Ted Koppel:
The Statute of Frauds may just topple!
Politicians are snarky,
And yet their malarchy
Is binding if backed by estoppel.

Todd van Poppel is in the on-deck circle.  Be thee warned!!

[Jeremy Telman]

Limerick of the Week

Winternitz v. Summit Hills is a useful case for illustrating why the difference between law and equity might still matter in a modern court.  It is also a useful case for illustrating why tort law might matter in a modern court, if anyone is interested in such things.  The interplay between the real and the imaginary in the case gives it the feel of a Dr. Seuss book, and so this Limerick has a bit of a Seussical feel to it:

Winternitz v. Summit Hills

Hard cases result in bad laws.
But there's a solution because
The court can resort
To a sort of a tort
To remedy equity's flaws.

[Jeremy Telman]

Limerick of the Week

Sometimes you really can sum up a case in five lines:

Normile v. Miller

As if sensing what lay ahead,
The counterofferor said,
You snooze, you lose!"
That's enough to excuse
Her for selling to Segal instead.

[Jeremy Telman]

Limerick of the Week

I know I'm a bit ahead of schedule, but I will be traveling on Monday and unable to post.

The best scenarios out there for explaining the doctrine of restitution are provided, IMHO, by Seinfeld and The Incredibles.  In a late Seinfeld episode, the Elaine character, suffering from back pain, offers to give anything to anyone who could relieve her of the pain.  Kramer grabs Elain's head, and as she objects, proceeds to twist it until her neck cracks.  Elaine feels immediate relief and thanks Kramer, at which point he demands payment for his services.  In my book, he was an officious intermeddler who deserved no payment for his services.  In any case, Elaine's pain soon returned with a vengeance.  But Elaine didn't ask my advice.  I believe the dispute was settled by Newman.

The Incredibles provides two illustrations of the doctrine.  In the first, Mr. Incredible saves the life of a suicide, but in so doing causes some bodily harm to the man.  The would-be suicide then files suit for damages, and the improbable success of this suit is then the vehicle for the film's premise -- a world in which plaintiffs' attorneys destroy the entire culture of the superheroes.  But if Mr. Incredible were simply in the habit of demanding payment for his good deeds, he would have a slam dunk defense, just as a doctor who causes some injuries in reviving an unconscious patient could not be sued for assault. Inded, rather than being sued, Mr. Incredible would likely succeed on a restitution claim.

In the second, Edna Mode, having prepared a new supersuit for Mr. Incredible, prepares matching clothing for the rest of the family.   Mr. Incredible's wife, Helen (aka Elastigirl), at first expresses shock and outrage that Edna would make such a presumption, but then, for reasons that need not concern us here, ends up using Edna's supersuits.  This may well illustrate ratification, but it can also be a basis for a good discussion of restitution. 

Alas, I have yet to find a casebook that includes discussions of these scenarios, perhaps because Newman does not publish his opinions and it is not clear whether Helen paid Edna for the supersuits or if Edna needed to bring suit to collect.  So, I am left teaching the Pelo case, which is not nearly as entertaining. 

Credit Bureau Enterprises, Inc. v. Pelo

Does the doctrine of restitution
Provide a fair resolution?
It keeps doctors secure
When consent is obscure
And thus prevents self-execution.

[Jeremy Telman]

Limerick of the Week

As Frank Snyder put it in the early days of this Blog:

[On] December 2, 1980, the Missouri Court of Appeals decided Katz v. Danny Dare, Inc.,  610 S.W.2d 121 (Mo. Ct. App.1980), a popular casebook follow-up to Feinberg v. Pfeiffer Co. in the promissory estoppel part of the course.  In the case, the president of the company wanted to get his brother-in-law to resign instead of having to fire him (thus ticking off his sister) so he promised him a pension.  After the man retired, the company reneged on the promise, claiming that there was no consideration for the promise because the employee would have been fired anyway.  The court's holding -- that there was no consideration but that there was reliance -- is just off base enough to make for great class discussion.

And also off-base enough to inspire a Limerick:

Katz v. Danny Dare

Shopmaker could have fired Katz.
Instead, they held family chats.
Now a pension is due,
Though Katz' work days aren't through.
Estoppel here seems a bit bats.

[Jeremy Telman]

Limerick of the Week

In order for my students to appreciate this week's Limerick, I first have to instruct them in the patois of New York pick-up basketball.  You see, those of us who frequent the hard-scrabble asphalt courts of the City have developed our own expressions.  For example, sometimes a call in a game can be simultaneously fair and charitable.  For example, a player may travel or double-dribble, but only because -- oh, I don't know -- perhaps the sun was in his eyes, or he got scared when a bigger player came up to guard him.  In such a case, the traveling player might call out that he was fouled and the other players might agree that allowing the foul would be both fair and charitable, or to use the vernacular "fairitable." 

I swear, the word is used all the time in pick-up basketball games.  If you don't believe me, just try using it.  When someone calls a foul on you, just look him in the eye and say, "Okay, that's fairitable."  You will get no argument.

It is for that reason, and not (heavens forfend) because I was desparate for a rhyme, that the word, "fairitable" appears in this Limerick.

Allegheny College v. National Chautauqua County Bank

Although her estate was inheritable,
Ms. Johnston chose to be chartible.
A bargain was struck;
Her heir's out of luck:
To the College Cardozo was fairitable.

[Jeremy Telman]

Limerick of the Week

Last week's Limerick explored the difficulty of writing a metrical poem that includes the word "consideration."  This week, we begin an investigation into the difficulties of finding a rhyme for "estoppel."

Ted Koppel might do, but how to work him into a poem?  I'm stumped.  Todd van Poppel, perhaps?  Dated, I think.  Well, you can see the bind I'm in.

Ricketts v. Scothorn

Such was the start of estoppel:
Said Grandpa to Katie, "Poppop'll
Set you up nice."
She took his advice,
And quit her old job in the shop-pel.

[Jeremy Telman]

Limerick of the Week

The casebook that I use does not include a case that addresses the peppercorn theory of consideration, so I supplement the book with Fischer v. Union Trust Co.  In that case, one of the brothers of the incompetent Bertha Fischer gave her a dollar, which she then passed on to her father, William Fischer, Sr., as purported consideration for a deed on certain property.  William Sr. descirbed the deed as "a nice Christmas present." 

I love this case, with its sweet (and remarkably precise!) details of a deal that had occurred nine years earlier.  But I can see why casebook editors would want to steer clear.  There is a disucssion of "three classes of consideration," which students find completely opaque.  It's also an uncomfortable vehicle for teaching peppercorn theory, as the opinion conclusorily states that Bertha "paid no valuable consideration" for the promised conveyance.  That's silly.  The 1895 dollar pictured above is now worth $750!

But what really bothers me is that it is very hard to work the word "consideration" into a Limerick.

Consideration provision is tough:
One dollar isn't enough.
Has this court grown weary
Of peppercorn theory
Or is the transaction a bluff?

[Jeremy Telman}

Limerick of the Week

Park 100 Investors v. Kartes

The Karteses signed the "lease papers,"
A guaranty hidden in vapors.
The court found this coarse
And would not enforce
A contract procured through such capers.

[Jeremy Telman]

Limerick of the Week

There was a lot of talk about tobacco barns and Buffaloe v. Hart last week on the Contracts Profs Listserve.  I think we established to our satisfaction that students should come away from their first year in law school secure in the knowledge that tobacoo barns (pictured) are moveable. 

And while we are on the topic of useful knowledge, here is a Limerick memorializing the case:

Acceptance of "goods" was the start
Of Buffaloe's barn deal with Hart.
A torn check was the end,
Evincing a trend
To bind through Llewellyn's black art.

[Jeremy Telman]

Add: Pickfords

Our friend Andrew Tettenborn (Exeter) mentions that during the 19th century Pickfords was a major part of British culture, as witness this scene from Gilbert & Sullivan's Iolanthe (1890):

[Enter Lord Mountararat and Lord Tolloller from Westminster Hall.]
     Celia: