Wednesday, April 15, 2009
Contracts types remember the event because Sir Cosmo Duff Gordon’s quick thinking in getting himself and his wife Lucy (left) into a lifeboat will ultimately lead to the seminal decision in Wood v. Lucy, Lady Duff Gordon.
Tuesday, April 14, 2009
On this date, April 14, 1828, lexicographer Noah Webster publishes the first edition of his American Dictionary of the English Language, a major landmark in the question to get Americans to use straightforward, proper English.
Lawyers immediately decide to ignore the new development.
Friday, March 30, 2007
Fifty years ago reading. THE UNIFORM COMMERCIAL CODE AND CONTRACT LAW: SOME SELECTED PROBLEMS, 105 U. Pa. L. Rev. 836 (1957). This is an interesting and long article on Article 2. If you are wondering about the changes to Article 1 and Article 2 and the adoption of the changes by the states, it is worth remembering that in 1957, six years after Article 2 was approved, only one state, Pennsylvania, had adopted it.
Monday, May 15, 2006
Exactly 120 years ago today, May 15, 1886, at Walkerville (now part of Windsor), Ontario, distiller and cattle breeder Hiram ("Canadian Club") Walker and banker Theodore C. Sherwood struck a deal over a polled Angus cow named Rose. Walker agreed to sell the cow, which he thought barren, for $80. When she turned out to be with calf (and therefore worth as much as $1,000), Walker reneged, leading to the most famous "mutual mistake" case in U.S. history, Sherwood v. Walker. In honor of the day, this lyric, to the tune of Bob Dylan's Just Like a Woman.
JUST LIKE A HEIFER
Now Sherwood needed a cow.
It's not clear if for breeding, or for chow.
He went to Walker's farm,
Thought there would be no harm --
But there he fell under Rose's fatal charm
And he knew --
She's the one.
She moos, just like a heifer (Yes she does)
And she chews grass just like a heifer (Yes she does)
And she woos bulls just like a heifer --
But she's priced just like a side of beef.
Now Sherwood offered to buy.
Old Walker pulled out a jug of rye.
Sherwood thought, "It's her I need!"
Walker thought, "She cannot breed."
The two men haggled and at last agreed
On a price --
For that Rose.
Sherwood went to get his cow,
Walker said, "Ah, now,
I won't let her go!
Eighty bucks? Don't make me laugh!
This cow is now with calf!
And I tell you here,
She's now too dear!
Let me make it clear -- that
I just won't sell.
And Sherwood, you can go to hell!
The contract I will break,
Advantage I will take
Of the doctrine known as ‘mutual mistake,'
And you -- you're just screwed."
Sunday, May 7, 2006
Exactly ten years ago, on this date, May 7, 2006, the Pepsi Cola Company refused to deliver a Harrier jet aircraft to John D. R. Leonard, who had sent in a check for $700,000 for 7 million “Pepsi Points” and demanded the jet. Leonard would subsequently sue, leading to one of the most famous contract law decisions of the last decade, Leonard v. Pepsico.
Pepsi had run a television commercial as part of its “Pepsi Stuff” marketing campaign, showing a schoolboy arriving at school in his own Harrier AV-8B VTOL (Vertical Take Off and Landing) fighter jet, with the tag line, “Harrier Fighter 7,000,000 Pepsi Points.” The Harrier jet was presumably chosen because Arnold Schwarzenegger had flown one to destroy the bad guys in the 1994 hit True Lies. The $700,000 would have been a bargain, since according to the Internet Movie Database, the producers of True Lies had paid the Marine Corps more than $100,000 -- $2,410 an hour -- just to rent Harriers for the film.
The Pepsi Stuff campaign, by the way, extremely effective, being named Promo Magazine in 2002 as one of the “Ageless Wonders” of advertising, right up there with the prizes in Cracker Jack boxes. Leonard's suit probably didn't hurt.
Monday, May 1, 2006
On this date, May 1, 1891, John C. Ricketts signs a $2,000 promissory note in favor of his niece Katie Scothorn. He goes to the Mayer Bros. Clothing Co. in Lincoln, Nebraska. (Left: Contemporary post card image.) A witness describes what happens:
A. Well the old gentleman came in there one morning about 9 o’clock, -- probably a little before or a little after, but early in the morning, -- and he unbuttoned his vest and took out a piece of paper in the shape of a note; that is the way it looked to me; and he says to Miss Scothorn, “I have fixed out something that you have not got to work any more.” He says, “None of my grandchildren work and you don’t have to.”
Q. Where was she?
A. She took the piece of paper and kissed him; and kissed the old gentleman and commenced to cry.
Katie proceeds to quit, and when the old gentleman dies without delivering the cash, executor Andrew D. Ricketts (the old man's son) refuses to pay the note. Katie sues. The decision, Ricketts v. Scothorn -- allowing her to recover in contract for what would then have been considered a failed gift -- is one of the staples of promissory estoppel.
For those interested, a biography of Andrew is here. There is some question about how much $2,000 in 1891 would be worth today. Using the unskilled wage -- probably the best measure given that it was supposed to replace Katie's earnings as a bookkeeper -- that $2,000 would be worth about $220,000.
Thursday, April 20, 2006
Please advise us the lowest price you can make us on our order for ten car loads of Mason green jars, complete, with caps, packed one dozen in case, either delivered here, or f. o. b. cars your place, as you prefer. State terms and cash discount.
Crunden-Martin W. W. Co.
Fairmount's reply, couched as a price quote, will nevertheless be found by the Kentucky Court of Appeals (how did Kentucky get involved in this?) to be an offer. The case of Crunden-Martin Wooden Ware Co. v. Fairmount Glass Works is a casebook staple. The Crunden-Martin facility is a proposed National Historic Site -- you can see lots of pictures here. The "F" in a hexagon (above, right) was the Fairmount trademark. You can click on "continue reading" for the text of the decision.
Friday, April 14, 2006
On this date, April 14, 1891, the New York Court of Appeals decides the famous consideration case of Hamer v. Sidway, a staple of contracts casebooks. It's the one where the uncle promises his namesake nephew $5,000 if the young man will "refrain from drinking, using tobacco, swearing, and playing cards or billiards for money until he became 21 years of age." It doesn't sound like much of a deal today, but using the unskilled wage as a measuring stick that $5,000 in 1869 would be worth about $500,000 today.
The opinion in the case was written by Judge Alton Brooks Parker (left), who would become even more famous in 1904 when he was the Democratic candidate for President of the United States against Theodore Roosevelt.
Thursday, April 13, 2006
Exactly fifty years ago today, on Friday, April 13, 1956, the Great Minneapolis Surplus Store shoots itself in the foot a second time, running the following ad:
2 Brand New Pastel Mink 3-Skin Scarfs
Selling for $89.50
Out they go Saturday ... Each $1.00
1 Black Lapin Stole, Beautiful, worth $139.50 ... $1.00
First Come First Served
When the store refuses to sell the items to Morris Lefkowitz, the result will be Lefkowitz v. Great Minneapolis Surplus Store, Inc., the classic case on whether an advertisement is an "offer" in contract law.
Sunday, April 9, 2006
On this date, April 9, 1965, the U.S. Court of Appeals for the D.C. Circuit hears oral argument in Williams v. Walker-Thomas Furniture Co., the landmark unconscionability case. Judges David Bazelon and Skelly Wright seem amenable to the claims of the indigent plaintiff, but Judge John Danaher (the only one on the panel to have served as a legislator himself) is dubious, noting it's the legislature's job to make such calls.
The 2-1 decision, adopting unconscionability as part of the common law of the District of Columbia, will come down in August.
Friday, April 7, 2006
On this date, April 7, 1954, Joseph A. Lonergan of New York wrote to Albert Scolnick regarding 40 acres of land near Joshua Tree, California. It was only one step in a longer correspondence that would eventually raise the issue whether describing land and stating that your "rock-bottom" price for selling it is $2,500 amounts to an offer to sell. The case, in several casebooks, is Lonergan v. Scolnick.
Thursday, April 6, 2006
Exactly fifty years ago, on Friday, April 6, 1956, the Great Minneapolis Surplus Store runs a newspaper ad for its sale the following day, Saturday.
Saturday 9 A.M. Sharp 3 Brand New Fur Coats Worth to $100.00
First Come First Served $1 Each
One week later, on Friday the 13th, the company will run a second ad,
Saturday 9 A.M. 2 Brand New Pastel Mink 3-Skin Scarfs
Out they go Saturday. Each ... $1.00
1 Black Lapin Stole Beautiful, worth $139.50 ... $1.00
First Come First Served
When the store refuses to sell the goods to Morris Lefkowitz, on the grounds that only women customers could by, he'll sue, leading to Lefkowitz v. Great Minneapolis Surplus Store, Inc., the classic case of advertisement-as-offer.
Wednesday, April 5, 2006
On this date, April 5, 1758, Seth Wyman is born to Ross and Dinah Wyman at the farming community of Shrewsbury, Massachusetts. Capt. Ross Wyman will be one of the Minute Men of Shrewsbury, and will command an artillery detachment company on the march against the British at Lexington, April 19, 1775 (left).
Seth will later marry Mary Brown in 1782, and their son Levi will eventually run away to sea. An exaggerated report of Levi's subsequent alleged death in Hartford will lead to his father's historical fame as the defendant in Mills v. Wyman.
Tuesday, March 28, 2006
On this date, March 28, 1962, James Skelly Wright was confirmed by the U.S. Senate to become a judge of the U.S. Court of Appeals for the D.C. Circuit. Wright, a prominent judge during the civil rights movement in the south, is best known in contract circles for his 1965 decision in Williams v. Walker-Thomas Furniture Co., in which he used the new doctrine of "unconscionability" to strike down a cross-collateralization clause in a consumer purchase.
Thursday, March 9, 2006
On this date, March 8, 1841, Oliver Wendell Holmes was born at Boston, Massachusetts. Holmes had a significant influence on contract law, through is writings in The Common Law and his theory that a contract was not a moral obligation, but merely an option to either perform the promised action or pay damages.
He is best remembered by Americans, however, as having the best mustache of any Supreme Court justice.
Wednesday, February 15, 2006
No intellectual current has had more of an impact on contract theory in the past forty years than the law and economics movement. An important strand in that movement is utilitarian analysis. And utilitarianism, in a way, started on this date, February 15, 1748, when Jeremy Bentham was born at Houndsditch, London, the son and grandson of attorneys. Bentham was a prototype for the modern law professor: he qualified to practice at Lincoln's Inn but never actually practiced, spending his time instead writing about law.
He left his estate to help found University College, London, where his cadaver -- embalmed, dressed, and seated in a chair wearing a big hat -- still greets visitors. (Image: Michael Reeve, GNU License, Wikipedia)
Monday, February 13, 2006
On this date, February 13, 1962, Karl Nickerson Llewellyn, principal architect of the Uniform Commercial Code, died at Chicago. In addition to his work in commercial law, Llewellyn had been the only person to have served as editor-in-chief of the Yale Law Review for three years, and the only American citizen to win the Iron Cross fighting for the Kaiser in World War I.
Sunday, February 12, 2006
On this date, February 12, 1900, Roger John Traynor was born at Park City, Utah. He earned his Ph.D. and J.D. from Cal-Berkeley in 1927, and spent his entire career working for the State of California, as a professor at Boalt Hall, as a state tax official (credited for introducing the vehicle registration fee, the state sales tax, the state income tax, the use tax, the state corporate income tax, and the state fuel tax), and from 1940-70 as a Justice and then Chief Justice (1964-70) of the California Supreme Court. In that latter position he authored such casebook staples as Drennan v. Star Paving and Pacific Gas & Electric Co. v. G. W. Thomas Drayage Co.
Wednesday, February 8, 2006
On this date, February 8, 1991, pitcher Roger Clemens of the Boston Red Sox signs the most lucrative contract in baseball history to that time: $5,380,250 a year for four years. That's more than $600,000 a year more than the previous record, held by Jose Canseco of the Oakland Athletics. Clemens’s record will last only a year, however, before the Chicago Cubs give $7 million a year to second baseman Ryne Sandberg. (Image: Clemens in 2004 as a member of the Houston Astros, by Rick Dikerman, GNU License, from Wikipedia)
Tuesday, February 7, 2006
On this date, February 7, 1478, St. Thomas More, the patron saint of lawyers, was born at Milk Street, London, the son of a lawyer and judge of the King’s Bench. In his most famous work, Utopia, More envisions a nation in which there seems to be no private contracts at all and loans from the state may be called in at any time if someone needs the money more.
This makes us think that C.S. Lewis was probably right when he argued that Utopia is a satire, not a philosophical tract. (Image: Statute in Notre Dame Law School Library)