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Rules of evidence determine what types of evidence is admissible, and the trial court judge applies these rules to the case. Generally, to be admissible, the evidence must be relevant) and not outweighed by countervailing considerations (e.g., the evidence is unfairly prejudicial, confusing, a waste of time, privileged, or, among other reasons, based on hearsay).
Paul, the Plaintiff in a personal injury action, called Wes as a witness to testify that Dan's car, in which Paul had been riding. ran a red light. Wes, however, testified that Dan's car did not run the light.
Paul then called Vic to testify that Dan's car did run the light. The trial judge should rule that Vic's testimony is
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admissible because Vic's testimony was relevant to material issues
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A matter is considered collateral if “the matter itself is not relevant in the litigation to establish a fact of consequence, i.e., not relevant for a purpose other than mere contradiction of the in-court testimony of the witness.” United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir.1993) (quoting 1 McCormick on Evidence § 45 (4th ed. 1992)). Although any demonstrated inconsistency in a witness's statement may impeach a witness's credibility, other concerns (such as wasting time and misleading the jury) become more important when the inconsistency at *409 issue involves a statement relating to a matter that “is not relevant in the litigation to establish a fact of consequence.” Id. (quoting 1 McCormick on Evidence § 45, 169 (4th ed. 1992)).
Paul, the Plaintiff in a personal injury action, called Wes as a witness to testify that Dan's car, in which Paul had been riding. ran a red light. Wes, however, testified that Dan's car did not run the light.
On cross-examination of Vic, Dan's attorney asked if Vic was drunk at the time he witnessed the accident. and Vic responded, "No I have never in my life been drunk." Dan's attorney then sought to prove by Yank that Vic was drunk on New Year's Eve two years before the accident. The trialjudge should rule that Yank's testimony is
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inadmissible because the question of whether Vic has ever been drunk is a collateral matter
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Before a document may be received in evidence, it must meet a number of foundational requirements including: relevancy, authentication, the best evidence rule, and hearsay.” Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993). However, “a statute may eliminate one or more of these obstacles with regard to a particular document.” Id. In the case of business records, § 490.680 allows them to be admitted despite being hearsay if
the custodian or other qualified witness testifies to [the record's] identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence.5 State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982).
Paul, the Plaintiff in a personal injury action, called Wes as a witness to testify that Dan's car, in which Paul had been riding. ran a red light. Wes, however, testified that Dan's car did not run the light.
Dan called Zemo as a witness and asked him if he knew Vic's reputation for veracity in the community where Vic resided. The trialjudge should rule that this question is
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unobjectionable because a foundation for impeachment of Vic.
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By contrast, generic burglary's unlawful-entry element excludes any case in which a person enters premises open to the public, no matter his intent; the generic crime requires breaking and entering or similar unlawful activity. See Brief for United States 38; LaFave § 21.1(a). So everything rests on the Government's *276 third point: that this mismatch does not preclude applying the modified categorical approach, because it results not from a missing element but instead from an element's overbreadth.
nan
Jim watched a liquor store furtively for some time, planning to hold it up. He bought a realistic-looking toy gun for the job. One night, just before the store's closing time, he drove to the store, opened the front door and entered. He reached in his pocket for the toy gun, but then became frightened and began to move back toward the front door. However, the shopkeeper had seen the butt of the gun. Fearing a hold up, the shopkeeper produced a gun from under the counter, pointed it at Jim, and yelled, "Stop!" Jim ran to the door and the toy gun fell from his pocket. The shopkeeper fired. The shot missed Jim, but struck and killed a passerby outside the store. A statute in the jurisdiction defines burglary as "breaking and entering any building or structure with the intent to commit a felony or to steal therein." On a charge of burglary, Jim's best defense would be that
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the liquor store was open to the public
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The res ipsa loquitur doctrine “enables a jury presented only with circumstantial evidence to infer negligence simply from the fact that an event happened.” St. Paul Fire & Marine Ins. Co. v. City of New York, 907 F.2d 299, 302 (2d Cir.1990). The criteria for applying res ipsa loquitur include
“(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”
Morejon v. Rais Construction Company, 7 N.Y.3d 203, 818 N.Y.S.2d 792, 851 N.E.2d 1143, 1147 (2006) (quoting Corcoran v. Banner Super Mkt., 19 N.Y.2d 425, 280 N.Y.S.2d 385, 227 N.E.2d 304 (1967)).
A water pipe burst in the basement of Supermart, a grocery store, flooding the basement and damaging cases of canned goods on the floor. The Plumbing contractor's workmen, in repairing the leak, knocked over several stacks of canned goods in cases, denting the cans. After settling its claims against the landlord for the water leak and against the plumbing contractor for the damage done by his workmen, Supermart put the goods on special sale. Four weeks later Dotty was shopping in Supermart. Several tables in the market were covered with assorted canned foods, all of which were dirty and dented. A sign on each of the tables read: "Damaged Cans-Half Price." Dotty was having Guest for dinner that evening and purchased two dented cans of tuna, packed by Canco, from one of the tables displaying the damaged cans. Before Guest arrived, Dotty prepared a tuna casserole which she and Guest ate. Both became ill and the medical testimony established that the illness was caused by the tuna's being unfit for consumption. The tuna consumed by Dotty and Guest came from the case that was at the top of one of the stacks knocked over by the workmen. The tuna in undamaged cans from the same Canco shipment was fit for consumption.
If Dotty asserts a claim against Canco based on negligence, the doctrine of res ipsa loquitur is
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not applicable, because the case of tuna had been knocked over by the workmen
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The Indiana courts have apparently never squarely addressed the precise issue presented here. But it has long been the rule in Indiana that the duty of care owed by a real-property owner to his social guests requires only that the host refrain from willfully, wantonly or intentionally injuring his social guests. Swanson v. Shroat, 169 Ind.App. 80, 345 N.E.2d 872 (1976); Pierce v. Walters, 152 Ind.App. 321, 283 N.E.2d 560 (1972); Fort Wayne National Bank v. Doctor, 149 Ind.App. 365, 272 N.E.2d 876 (1971).
A water pipe burst in the basement of Supermart, a grocery store, flooding the basement and damaging cases of canned goods on the floor. The Plumbing contractor's workmen, in repairing the leak, knocked over several stacks of canned goods in cases, denting the cans. After settling its claims against the landlord for the water leak and against the plumbing contractor for the damage done by his workmen, Supermart put the goods on special sale. Four weeks later Dotty was shopping in Supermart. Several tables in the market were covered with assorted canned foods, all of which were dirty and dented. A sign on each of the tables read: "Damaged Cans-Half Price." Dotty was having Guest for dinner that evening and purchased two dented cans of tuna, packed by Canco, from one of the tables displaying the damaged cans. Before Guest arrived, Dotty prepared a tuna casserole which she and Guest ate. Both became ill and the medical testimony established that the illness was caused by the tuna's being unfit for consumption. The tuna consumed by Dotty and Guest came from the case that was at the top of one of the stacks knocked over by the workmen. The tuna in undamaged cans from the same Canco shipment was fit for consumption.
If Guest asserts a claim against Dotty, Dotty most likely will
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be held liable only if she were negligent
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To demonstrate strict liability, a plaintiff must show: “(1) that the defendant's product was in a defective condition unreasonably dangerous for its intended use, (2) that the defect existed when the product left the defendant's control, and (3) that the defect was the proximate cause of the injury sustained.” Bilotta v. Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn.1984).
A water pipe burst in the basement of Supermart, a grocery store, flooding the basement and damaging cases of canned goods on the floor. The Plumbing contractor's workmen, in repairing the leak, knocked over several stacks of canned goods in cases, denting the cans. After settling its claims against the landlord for the water leak and against the plumbing contractor for the damage done by his workmen, Supermart put the goods on special sale. Four weeks later Dotty was shopping in Supermart. Several tables in the market were covered with assorted canned foods, all of which were dirty and dented. A sign on each of the tables read: "Damaged Cans-Half Price." Dotty was having Guest for dinner that evening and purchased two dented cans of tuna, packed by Canco, from one of the tables displaying the damaged cans. Before Guest arrived, Dotty prepared a tuna casserole which she and Guest ate. Both became ill and the medical testimony established that the illness was caused by the tuna's being unfit for consumption. The tuna consumed by Dotty and Guest came from the case that was at the top of one of the stacks knocked over by the workmen. The tuna in undamaged cans from the same Canco shipment was fit for consumption.
If Guest asserts a claim against Supermart, the most likely result is that Guest will
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recover on the theory of strict liability in tort
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“[e]xceptions to the rule that contracts are freely assignable are when the contract expressly provides that it is not assignable or when performance of some term of the contract involves an element of personal skill or credit.” Hurst v. West, 49 N.C.App. 598, 272 S.E.2d 378, 382–83 (1980) (citations omitted).
Addle, who has been in the painting and contracting business for ten years and has a fine reputation, contracts to paint Boone's barn. Boone's barn is a standard red barn with loft. The contract has no provision regarding assignment.
If Addle assigns the contract to Coot, who has comparable experience and reputation, which of the following statements is correct?
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Boone is required to accept performance by Coot.
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Under Massachusetts law, claims for breach of contract are generally assignable.7 Raymer v. Bay State Nat'l Bank, 384 Mass. 310, 424 N.E.2d 515, 518 (1981); see also SAPC, Inc. v. Lotus Dev. Corp., 921 F.2d 360 (1st Cir.1990).
Addle, who has been in the painting and contracting business for ten years and has a fine reputation, contracts to paint Boone's barn. Boone's barn is a standard red barn with loft. The contract has no provision regarding assignment.
If Addle assigns the contract to Coot and thereafter Coot does not meet the contract specifications in painting Boone's barn. Boone
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has a cause of action against Addle for damages
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To obtain a conspiracy conviction under § 371, “the Government must prove (1) that an agreement existed between two or more persons to commit a crime; (2) that the defendant knowingly and voluntarily joined or participated in the conspiracy; and (3) a conspirator performed an overt act in furtherance of the agreement.” United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir.2006).
Jackson and Brannick planned to break into a federal government office to steal food stamps. Jackson telephoned Crowley one night and asked whether Crowley wanted to buy some "hot" food stamps. Crowley, who understood that "hot" meant stolen, said: "Sure, bring them right over." Jackson and Brannick then successfully executed their scheme. That same night they delivered the food stamps to Crowley, who bought them for $500. Crowley did not ask when or by whom the stamps were stolen. All three were arrested. Jackson and Brannick entered guilty pleas in federal court to a charge of larceny in connection with the theft. Crowley was brought to trial in the state court on a charge of conspiracy to steal food stamps.
On the evidence stated, Crowley should be found
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not guilty, because, although Crowley knew the stamps were stolen, he neither helped to plan nor participated or assisted in the theft
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“This court first explicitly adopted the Pinkerton principle of vicarious liability for purposes of our state criminal law in State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993). Under the Pinkerton doctrine, which, as of the date of our decision in Walton, was a recognized part of federal criminal conspiracy jurisprudence ... a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.... The rationale for the principle is that, when the conspirator [has] played a necessary part in setting in motion a discrete course of criminal conduct, he should be held responsible, within appropriate limits, for the crimes committed as *159 a natural and probable result of that course of conduct....
Jackson and Brannick planned to break into a federal government office to steal food stamps. Jackson telephoned Crowley one night and asked whether Crowley wanted to buy some "hot" food stamps. Crowley, who understood that "hot" meant stolen, said: "Sure, bring them right over." Jackson and Brannick then successfully executed their scheme. That same night they delivered the food stamps to Crowley, who bought them for $500. Crowley did not ask when or by whom the stamps were stolen. All three were arrested. Jackson and Brannick entered guilty pleas in federal court to a charge of larceny in connection with the theft. Crowley was brought to trial in the state court on a charge of conspiracy to steal food stamps.
If Jackson and Brannick are charged with conspiracy to steal the stamps in the state court, they should, on the evidence stated, be found
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guilty, because they planned and conspired to steal the stamps
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Eliker, supra, also holds that rescission is a proper remedy when the breach of contract is so substantial and fundamental as to defeat the object of the parties in making the agreement. Eliker involved a contract for construction of a house, but the non-performance was such that the house that had been bargained for was uninhabitable for all practical purposes. In **653 Gallner v. Sweep Left, Inc., 203 Neb. 169, 277 N.W.2d 689 (1979), the *497 court said that where contractual promises are mutual and dependent, the failure of one party to perform authorizes the other to rescind the contract.
nan
Owens contracted to sell a tract of land, Overlea, to Painter by general warranty deed. However, at the closing Painter did not carefully examine the deed and accepted a quitclaim deed without covenants of title. Painter later attempted to sell Overlea to Thompson, who refused to perform because Owens had conveyed an easement for a highway across Overlea before Painter bought the property. Painter sued Owens for damages. Which of the following arguments will most likely succeed in Owen's defense?
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Painter's cause of action must be based on the deed and not on the contract.
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The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
(24) [Other Exceptions .] [Transferred to Rule 807.]
Rider, a bus passenger, sued Transit Company for injuries to his back from an accident caused by Transit's negligence. Transit denies that Rider received any injury in the accident.
Rider's counsel seeks to introduce an affidavit he obtained in preparation for trial from Dr. Bond, who has since died. The affidavit avers that Dr. Bond examined Rider two days after the Transit Company accident and found him suffering from a recently incurred back injury. The judge should rule the affidavit
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inadmissible, because it is hearsay, not within any exception
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Admissions by party-opponents are admissible, even if they are not based on personal knowledge. Fed.R.Evid. 801(d)(2); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 665–67 (10th Cir.2006).
Rider, a bus passenger, sued Transit Company for injuries to his back from an accident caused by Transit's negligence. Transit denies that Rider received any injury in the accident.
Transit Company calls Observer to testify that right after the accident, Rider told hin that he had recently suffered a recurrence of an old back injury. The judge should rule Observer's testimony
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admissible as an admission of a party opponent
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1. Unless otherwise agreed and subject to subsection 3, where goods are tendered or delivered or identified to the contract for sale, the buyer has a right before payment or acceptance to inspect them at any reasonable place and time and in any reasonable manner. When the seller is required or authorized to send the goods to the buyer, the inspection may be after their arrival.
2. Expenses of inspection must be borne by the buyer but may be recovered from the seller if the goods do not conform and are rejected.
3. Unless otherwise agreed and subject to the provisions of this Article on C.I.F. contracts (section 554.2321, subsection 3), the buyer is not entitled to inspect the goods before payment of the price when the contract provides
a. for delivery “C.O.D.” or on other like terms; or
b. for payment against documents of title, except where such payment is due only after the goods are to become available for inspection.
4. A place or method of inspection fixed by the parties is presumed to be exclusive but unless otherwise expressly agreed it does not postpone identification or shift the place for delivery or for passing the risk of loss. If compliance becomes impossible, inspection shall be as provided in this section unless the place or method fixed was clearly intended as an indispensable condition failure of which avoids the contract.
Johnston bought 100 bolts of standard blue wool, No. I quality, from McHugh. The sale contract provided that Johnston would make payment prior to inspection. The 100 bolts were shipped, and Johnston paid McHugh. Upon inspection, however, Johnston discovered that the wool was No. 2 quality. Johnston thereupon tendered back the Wool to Mc Hugh and demanded return of his payment. Mc Hugh refused on the ground that there is no difference between No. 1 quality wool and No. 2 quality wool.
Which of the following statements regarding the contract provision for preinspection payment is correct?
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It does not impair a buyer's right of inspection or his remedies.
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How are Compensatory Damages Calculated?
The calculation of compensatory damages depends on the type of contract that was breached and the type of loss that was incurred. Some general guidelines are:
Standard Measure. The standard measure of damages is an amount that would allow the nonbreaching party to buy a substitute for the benefit that would have been received if the contract had been performed. In cases where the cost of the substitute is speculative, the nonbreaching party may recover damages in the amount of the cost incurred in performing that party’s obligations under the contract.
Contracts for the Sale of Goods. The damages are measured by the difference between the contract price and the market price when the seller provides the goods, or when the buyer learns of the breach.
Johnston bought 100 bolts of standard blue wool, No. I quality, from McHugh. The sale contract provided that Johnston would make payment prior to inspection. The 100 bolts were shipped, and Johnston paid McHugh. Upon inspection, however, Johnston discovered that the wool was No. 2 quality. Johnston thereupon tendered back the Wool to Mc Hugh and demanded return of his payment. Mc Hugh refused on the ground that there is no difference between No. 1 quality wool and No. 2 quality wool.
What is Johnston's remedy because the wool was nonconforming?
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Damages measured by the price paid plus the difference between the contract price and the cost of buying substitute goods
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Under this section the seller may resell the goods after any breach by the buyer. Thus, an anticipatory repudiation by the buyer gives rise to any of the seller’s remedies for breach, and to the right of resale.
Johnston bought 100 bolts of standard blue wool, No. I quality, from McHugh. The sale contract provided that Johnston would make payment prior to inspection. The 100 bolts were shipped, and Johnston paid McHugh. Upon inspection, however, Johnston discovered that the wool was No. 2 quality. Johnston thereupon tendered back the Wool to Mc Hugh and demanded return of his payment. Mc Hugh refused on the ground that there is no difference between No. 1 quality wool and No. 2 quality wool.
Can Johnston resell the wool?
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Yes, in a private sale but only after giving Mc Hugh reasonable notice of his intention to resell.
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A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring their interest in the property. Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the fee tail, a form of ownership which required that property be passed down in the same family from generation to generation, which has also been widely abolished
nan
Lord leased a warehouse building and the lot on which it stood to Taylor for a term of ten years. The lease contained a clause prohibiting Taylor from subletting his interest. Can Taylor assign his interest under the lease?
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Yes, because restraints on alier ation of land are strictly construed.
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Nuisance Defenses
There are several defenses available to those accused of creating a nuisance. One important defense is called ‘coming to the nuisance’. It applies when the harmful activity was operating before the plaintiffs acquired the property impacted by the nuisance. If the owners were aware of the nuisance-creating activity at the time they purchased the property, the defendant may invoke the defense of ‘coming to the nuisance’. This defense effectively argues that the plaintiffs knew what they were getting themselves into and assumed the risk of harm. While in the past, ‘coming to the nuisance’ was considered an absolute defense, today it is a factor that the courts will consider in determining whether the plaintiffs may recover for nuisance.[4] An example of this manifested in Foster v. Preston Mill Co.,[5] wherein blasting from a nearby timber farm caused minks to panic and attack each other. As the farm existed before the ranch housing the minks, there was no liability for nuisance.
nan
Diner, a drive-in hamburger and ice cream stand, recently opened for business in the suburban town of Little City. Diner's business hours are from 9:00 a.m. to midnight. It is in an area that for fifteen years has been zoned for small retail businesses, apartment buildings, and one- and two-family residences. The zoning code specifies that "small retail businesses" include "businesses where food and drink are dispensed for consumption on the premises." Diner was the first drive-in in Little City. For seven years Mr. and Mrs. Householder have owned and lived in their single-family residence, which is across the street from Diner. On opening day a brass band played in the parking lot of Diner until midnight, and the noise of cars and the unusual activity as a result of the new business prevented the Householders from getting to sleep until well after midnight, long after their usual time. Diner is heavily patronized during the day and night by high school students. The noise of cars, the lights of the cars, the lights illuminating the parking lot at Diner, and the noise from the loudspeaker of the ordering system prevented the Householders from sleeping before midnight. Paper cups, napkins, and other items from the drive-in are regularly blown into the Householders' front yard by the prevailing wind. The traffic to and from Diner is so heavy on the street in front of their house that the Householders are afraid to allow their small children to play in the front yard. The Householders have asserted a claim against Diner based on private nuisance. The most likely effect of the fact that Householders were in the area before Diner is that it
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is some, but not controlling, evidence
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“Robbery” is the “[f]elonious taking of ... [any] article of value, in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Id. at 1193 (emphasis added) (citations omitted). Finally, the act of “pillaging” is the “forcible taking of private property by an invading or conquering army from the enemy's subjects.” Id. at 1033 (emphasis added).
Jack and Paul planned to hold up a bank. They drove to the bank in Jack's car. Jack entered while Paul remained as lookout in the car. After a few moments, Paul panicked and drove off. Jack looked over the various tellers, approached one and wispered nervously, "Just hand over the cash. Don't look around, don't make a false move-or it's your life." The teller looked at the fidgeting Jack, laughed, flipped him a dollar bill and said, "Go on, beat it." Flustered, Jack grabbed the dollar and left. Soon after leaving the scene, Paul was stopped by the police for speeding. Noting his nervous condition, the police asked Paul if they might search the car. Paul agreed. The search turned up heroin concealed in the lid of the trunk.
Paul's best defense to a charge of robbery would be that
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the teller was not placed in fear by Jack
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The Fourth Amendment provides that “[t]he right of the people ... against unreasonable searches and seizures, shall not be violated ....” U.S. Const. Amend. IV. And it is axiomatic that a warrantless search is “ ‘per se unreasonable’ unless it falls within one of the ‘specifically established and well-delineated exceptions’ to the warrant requirement.” United States v. Simons, 206 F.3d 392, 399-400 (4th Cir. 2000) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). One such exception occurs when there is valid consent to the search. Fernandez v. California, 571 U.S. 292, 298, 134 S.Ct. 1126, 188 L.Ed.2d 25 (2014). Fourth Circuit and Supreme Court precedent make clear that consent to search is valid for Fourth Amendment purposes if it is (1) “knowing and voluntary,”3 and (2) given by one with authority to consent.
Jack and Paul planned to hold up a bank. They drove to the bank in Jack's car. Jack entered while Paul remained as lookout in the car. After a few moments, Paul panicked and drove off. Jack looked over the various tellers, approached one and wispered nervously, "Just hand over the cash. Don't look around, don't make a false move-or it's your life." The teller looked at the fidgeting Jack, laughed, flipped him a dollar bill and said, "Go on, beat it." Flustered, Jack grabbed the dollar and left. Soon after leaving the scene, Paul was stopped by the police for speeding. Noting his nervous condition, the police asked Paul if they might search the car. Paul agreed. The search turned up heroin concealed in the lid of the trunk.
The prosecution's best argument to sustain the validity of the search of Jack's car would be that
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Paul had, under the circumstances, sufficient standing and authority to consent to the search
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The attorney-client privilege protects communications made in confidence by a client and a client's employees to an attorney, acting as an attorney, for the purpose of obtaining legal advice. Sandra T.E. v. South Berwyn School Dist. 100, 600 F.3d 612, 618 (7th Cir.2010). The analysis is “(1) whether ‘legal advice of any kind [was] sought ... from a professional legal adviser in his capacity as such’; and (2) whether the communication was ‘relat[ed] to that purpose’ and ‘made in confidence ... by the client.’ ” Id. (citation omitted). “[T]he attorney-client privilege protects not only the attorney-client relationship in imminent or ongoing litigation but also the broader attorney-client relationship outside the litigation context.” Id. at 621.
nan
Pace sues Def Company for injuries suffered when Pace's car collided with Def Company's truck. Def's general manager prepared a report of the accident at the request of the company's attorney in preparation for the trial, and delivered the report to the attorney. Pace demands that the report be produced. Will production of the report be required?
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No, because it is a privileged communication from client to the attorney.
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In the instant case the husband had been dead for several months at the time the wife joined in the conveyance, and he could not, therefore, have consented to her subsequent execution of the same. When he died on April 1, 1948, he was the absolute owner of the land in question, because of the invalidity of his former deed of conveyance thereof without the signature of his wife, and, therefore, the rights of the complainants in the present case had intervented long prior to her signing and acknowledging the deed. This fact distinguishes Howell v. Hill from the case at bar. Even though the wife of John Brassel may have been willing that the homestead be sold on October 24, 1942, the time at which the contemporaneous assent of the husband and wife must exist is the time when the deed is finally executed by her joinder therein. In other words, the deed is void as to the owner of the homestead who has executed a deed to the same until the other spouse joins therein with the contemporaneous assent of both. Consequently, there can be no joinder by the wife in the execution of a conveyance of the homestead by the husband unless she executes the conveyance during his lifetime, and with his consent.
nan
The following facts concern a tract of land in a state which follows general United States law. Each instrument is in proper form, recorded, marital property rights were waived when necessary, and each person named was adult and competent at the time of the named transaction. 1. In 1940 Oleg, the owner, conveyed his interest in fee simple "to my brothers Bob and Bill, their heirs and assigns as joint tenants with right of survivorship." 2. In 1950 Bob died, devising his interest to his only child, "Charles, for life, and then to Charles's son, Sam, for life, and then to Sam's children, their heirs and assigns." 3. In 1970 Bill died, devising his interest "to my friend, Frank, his heirs and assigns." 4. In 1972 Frank conveyed by quitclaim deed "to Paul, his heirs and assigns whatever right, title and interest I own." Paul has never married. Paul has contracted to convey marketable record title in the land to Patrick. Can Paul do so?
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Yes, without joinder of any other person in the conveyance.
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To state a claim for trespass, a plaintiff must establish “(1) an interference with a possessory interest in his property; (2) through the defendant’s physical act or force against that property; (3) which was executed without [the plaintiff’s] consent.” Mitchell v. Baltimore Sun. Co., 883 A.2d 1008, 1014 (Md. Ct. Spec. App. 2005). The alleged trespasser does not need to cause any actual damage to the property; nominal damages may be recovered for any unauthorized entry. Tyler v. Cedar Island Club, 122 A. 38, 39 (Md. 1923).
Peter was rowing a boat on a mountain lake when a storm suddenly arose. Fearful that the boat might sink, Peter rowed to a boat dock on shore and tied the boat to the dock. The shore property and dock were the private property of Owner. While the boat was tied at the dock, Owner came down and ordered Peter to remove the boat, because the action of the waves was causing the boat to rub against a bumper on the dock. When Peter refused, Owner untied the boat and cast it adrift. The boat sank. Peter was wearing a pair of swimming trunks nothing else. He had a pair of shoes and a parka in the boat, but they were lost when Owner set it adrift. Peter was staying at a cabin one mile from Owner's property. The only land routes back were a short rocky trail that was dangerous during the storm, and a 15-mile road around the lake. The storm continued with heavy rain and hail, and Peter having informed Owner of the location of his cabin, asked Owner to take him back there in Owner's car. Owner said, " You got here by yourself and you'll have to get back home yourself." After one hour the storm stopped, and Peter walked home over the trail.
A necessary element in determining if Peter is liable for a trespass is whether
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Peter had reasonable grounds to believe his boat might be swamped and sink
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A constable who seizes the property of a defendant under an execution, and refuses to permit such defendant to select, and to have appraised for him property to the amount of $300 under the Act of 1849, the defendant demanding, and being entitled to the benefit of the exemption, becomes liable as a trespasser ab initio.
Peter was rowing a boat on a mountain lake when a storm suddenly arose. Fearful that the boat might sink, Peter rowed to a boat dock on shore and tied the boat to the dock. The shore property and dock were the private property of Owner. While the boat was tied at the dock, Owner came down and ordered Peter to remove the boat, because the action of the waves was causing the boat to rub against a bumper on the dock. When Peter refused, Owner untied the boat and cast it adrift. The boat sank. Peter was wearing a pair of swimming trunks nothing else. He had a pair of shoes and a parka in the boat, but they were lost when Owner set it adrift. Peter was staying at a cabin one mile from Owner's property. The only land routes back were a short rocky trail that was dangerous during the storm, and a 15-mile road around the lake. The storm continued with heavy rain and hail, and Peter having informed Owner of the location of his cabin, asked Owner to take him back there in Owner's car. Owner said, " You got here by yourself and you'll have to get back home yourself." After one hour the storm stopped, and Peter walked home over the trail.
If Peter asserts a claim against Owner for loss of the boat, the most likely result is that Owner will
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have no defense under the circumstances
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. Rule 404 makes character evidence inadmissible in most circumstances, but admissible under
several exceptions.
Character is not the same as reputation. "Character" consists of the individual patterns of
behavior and characteristics which make up and distinguish one person from another.
"Reputation" is the general opinion of people in the community as to a person’s character
traits, and is therefore evidence of (and a common way to prove) character. Reputation also
may be independently relevant, as in a defamation case in which a party sues for damage to
reputation.
nan
Park brought an action against Dan for injuries received in an automobile accident, alleging negligence in that Dan was speeding and inattentive. Park calls White to testify that Dan had a reputation in the community of being a reckless driver and was known as "dare-devil Dan." White's testimony is
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inadmissible to show negligence
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The offeror can create in the offeree a power of acceptance that is as limited, or as difficult to exercise, as the offeror pleases and can reserve a power of revocation to be exercised in any way. In order to do this, all that is necessary is that the offeree shall be informed of the limitation, or of the reservation, at any time before the offer is accepted. If the offer is in writing, the limitation, or the reservation should be expressed in the writing itself, so that knowledge of the whole comes to the offeree at the same time. Id. at 221.
Duffer and Slicker, who lived in different suburbs twenty miles apart, were golfing acquaintances at the Interurban Country Club. Both were traveling salesmen-Duffer for a pharmaceutical house and Slicker for a widget manufacturer. Duffer wrote Slicker by United States mail on Friday, October 8: I need a motorcycle for transportation to the country club, and will buy your Sujocki for $1,200 upon your bringing it to my home address above [stated in the letterhead] on or beforenoon, November 12 next. This offer is not subject to countermand. Sincerely, [signed] Duffer Slicker replied by mail the following day: I accept your offer, and promise to deliver the bike as you specified. Sincerely, [signed] Slicker This letter, although properly addressed, was misdirected by the postal service and not received by Duffer until November 10. Duffer had bought another Sujocki bike from Koolcat for $1,050 a few hours before. Koolcat saw Slicker at the Interurban Country Club on November I I and said: " I sold my Sujocki to Duffer yesterday for $1,050. Would you consider selling me yours for $950?" Slicker replied: "I'll let you know in a few days." On November 12, Slicker took his Sujocki to Duffer's residence; he arrived at 11:55 a.m. Duffer was asleep and did not answer Slicker's doorbell rings until 12:15 p.m. Duffer than rejected Slicker's bike on the ground that he had already bought Koolcat's.
In Duffer's letter of October 8, what was the legal effect of the language: "This offer is not subject to countermand"?
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Such language did not affect the offeror's power of revocation of the offer.
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Any act or communication that would cause a reasonable person to believe that an offer has been withdrawn or revoked is sufficient to constitute a withdrawal or revocation of the offer (no specific words or magic words are necessary). See Williston on Contracts § 5:8 (“In general, any statement which clearly indicates or implies unwillingness on the part of the offeror to contract according to the terms of the offer is sufficient, though the offeror does not use the word “revoke” or any similar operative language.”).
Duffer and Slicker, who lived in different suburbs twenty miles apart, were golfing acquaintances at the Interurban Country Club. Both were traveling salesmen-Duffer for a pharmaceutical house and Slicker for a widget manufacturer. Duffer wrote Slicker by United States mail on Friday, October 8: I need a motorcycle for transportation to the country club, and will buy your Sujocki for $1,200 upon your bringing it to my home address above [stated in the letterhead] on or beforenoon, November 12 next. This offer is not subject to countermand. Sincerely, [signed] Duffer Slicker replied by mail the following day: I accept your offer, and promise to deliver the bike as you specified. Sincerely, [signed] Slicker This letter, although properly addressed, was misdirected by the postal service and not received by Duffer until November 10. Duffer had bought another Sujocki bike from Koolcat for $1,050 a few hours before. Koolcat saw Slicker at the Interurban Country Club on November I I and said: " I sold my Sujocki to Duffer yesterday for $1,050. Would you consider selling me yours for $950?" Slicker replied: "I'll let you know in a few days." On November 12, Slicker took his Sujocki to Duffer's residence; he arrived at 11:55 a.m. Duffer was asleep and did not answer Slicker's doorbell rings until 12:15 p.m. Duffer than rejected Slicker's bike on the ground that he had already bought Koolcat's.
In a lawsuit by Slicker against Duffer for breach of contract, what would the court probably decide regarding Slicker's letter of October 9?
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Mailing of the letter by Slicker did not, of itself, prevent a subsequent, effective revocation by Duffer of his offer.
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Termination of the offeree’s power of acceptance can result from any of the following six causes:
expiration or lapse of the offer,
rejection by the offeree,
a counteroffer by the offeree,
a qualified or conditional acceptance by the offeree,
a valid revocation of the offer by the offeror, and
by operation of law.
Duffer and Slicker, who lived in different suburbs twenty miles apart, were golfing acquaintances at the Interurban Country Club. Both were traveling salesmen-Duffer for a pharmaceutical house and Slicker for a widget manufacturer. Duffer wrote Slicker by United States mail on Friday, October 8: I need a motorcycle for transportation to the country club, and will buy your Sujocki for $1,200 upon your bringing it to my home address above [stated in the letterhead] on or beforenoon, November 12 next. This offer is not subject to countermand. Sincerely, [signed] Duffer Slicker replied by mail the following day: I accept your offer, and promise to deliver the bike as you specified. Sincerely, [signed] Slicker This letter, although properly addressed, was misdirected by the postal service and not received by Duffer until November 10. Duffer had bought another Sujocki bike from Koolcat for $1,050 a few hours before. Koolcat saw Slicker at the Interurban Country Club on November I I and said: " I sold my Sujocki to Duffer yesterday for $1,050. Would you consider selling me yours for $950?" Slicker replied: "I'll let you know in a few days." On November 12, Slicker took his Sujocki to Duffer's residence; he arrived at 11:55 a.m. Duffer was asleep and did not answer Slicker's doorbell rings until 12:15 p.m. Duffer than rejected Slicker's bike on the ground that he had already bought Koolcat's.
What is the probable legal effect of Koolcat's conversation with Slicker and report that he (Koolcat) had sold his Sujocki to Duffer on November 10?
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Unless a contract had already been formed between Slicker and Duffer. Koolcat's report to Slicker operated to terminate Slicker's power of accepting Duffer's offer.
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“Hearsay is an out of court, unsworn, oral or written statement by a third person, which is offered for the truth of its content. Hearsay statements are inadmissible unless they fit into one of the recognized exceptions.” State v. Gremillion, 542 So.2d 1074, 1077 (La.1989) (citation omitted). One such exception to the hearsay exclusionary rule applies to unavailable witnesses:
A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
....
(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so;
....
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
....
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
La.Code Evid. art. 804.
nan
In a suit attacking the validity of a deed executed fifteen years ago, Plaintiff alleges mental incompetency of Joe, the grantor, and offers in evidence a properly authenticated affidavit of Harry, Joe's brother. The affidavit, which was executed shortly after the deed, stated that Harry had observed Joe closely over a period of weeks, that Joe had engaged in instances of unusual behavior (which were described), and that Joe's appearance had changed from one of neatness and alertness to one of disorder and absentmindedness. The judge should rule Harry's affidavit
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inadmissible as hearsay, not within any exception
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The Model Penal Code presents a distinct formulation of the insanity defense. Under this test, an individual is not liable for criminal offenses if, when he or she committed the crime or crimes, the individual suffered from a mental disease or defect that resulted in the individual lacking the substantial capacity to appreciate the wrongfulness of his or her actions or to conform his or her actions to requirements under the law.
nan
"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." This quotation is basically a statement of the
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Model Penal Code provision
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A scheme by which an owner of a defined area of land divides it up into a number of separate lots for sale (or lease) and imposes on the purchasers (or lessors) restrictions as to the use and development of the land by means of uniform covenants restricting the use to which the grantees may put the lots, with the express intention that the area as a whole, and each and every lot, will benefit thereby. For example, a scheme that restricts the development of each lot to a single-family residence and requires that all buildings are to be erected and maintained in general conformity with a set of rules that are imposed on all purchasers. A scheme of development establishes a form of 'local law' by which the development and management of the land is controlled for the benefit of all the purchasers and their successors. The essential aim of the scheme is that each purchaser will have the benefit of the same restrictions as those to which he has been subjected (Besch v. Hyman, 221 App Div 455, 223 NYS 233 (1927); Snow v. Van Dam, 291 Mass 477, 197 N.E. 224 (1935); Re Dolphin's Conveyance [1970] Ch 654, 662, [1970] 2 All ER 664; Brunner v Greenslade [1971] Ch 993, 1003, [1970] 3 All ER 836; Texaco Antilles Ltd v Kernochan [1973] AC 609, [1973] 2 All ER 118 (PC)).
In order to be able to enforce the provisions of a scheme of development each purchaser of an area of land (or his successor), as well as the common vendor, must have a right to enforce the restrictions for his own benefit (technically by suing for breach of a negative or restrictive covenant), and by the same token, must accept the burdens imposed on his use of the land. Thus, "reciprocity is the foundation of the idea of a scheme … [and a purchaser] must know both the extent of his burden and the extent of his benefit", Reid v Bickerstaff [1909] 2 Ch 305, 319, [1908-10] All ER Rep 298 (CA) (Re Palmer v Reesor (1914) 6 OWN 622, 624 (Can)) (in the US called the 'doctrine of reciprocal negative easement'). The reciprocal benefits and burdens are referred to as 'equitable servitudes' (as they are rights originating from the English Court of Equity—Tulk v Moxhay (1848) 2 Ph 774, 41 Eng Rep 1143) (Trustees of Columbia College v. Lynch, 70 NY 440 (1877); Allen v. Detroit, 167 Mich 464, 133 N.W. 317, 319 (1911); Weigman v. Kusel, 270 Ill 520, 110 N.E. 884 (1915)).
In common law, as a rule, a scheme of development requires five conditions to be satisfied for there to be the 'mutuality of enforcement', that is an essential element of the scheme: (i) the area to which the scheme applies must be clearly defined (Reid v Bickerstaff, supra; Whitgift Homes Ltd v Stocks [2001] EWCA Civ 1732, [2001] 48 EG 130 (CA)); (ii) any of the parties seeking to enforce the scheme must have derived title to the land from a common vendor (or from a successor in title who is bound in equity to the common vendor); (iii) that prior to selling the land the common vendor must have laid out the area for sale in lots with the intention that the restrictions, drawn up in accordance with a common plan, would be imposed on the use and development of all the plots; (iv) each purchaser must have accepted the restrictions on the understanding that similar restrictions would be imposed on each and every purchaser of any one of the lots; and (v) the restrictions must be intended by the vendor to be, and are, imposed for the benefit of each and every plot (although the restrictions imposed on each plot need not be identical: Elliston v Reacher [1909] 2 Ch 384; Allen v Veranne Builders Ltd [1988] NPC 11; Sanborn v. McLean, 233 Mich 227, 206 N.W. 496, 60 ALR 1212 (1925); Anno: 4 ALR2d 1364, 1369: General Plan of Subdivision—Notice; Cash v. Granite Springs Retreat Ass'n, Inc., 2011 WY 25, 248 P.3d 614 (WYO 2011)). However, a scheme of development is likely to bind any owner of land on the estate where: (i) it is clear that the common vendor's intention was to impose substantially the same restrictions on all the plots in the defined area; (ii) the purchasers acquired their plots on the understanding that the 'laws' of the estate would be binding on them and would benefit the entire estate; and (iii) it was intended that the purchasers would have reciprocal rights to enforce the law against the other owners (Re Wembley Park Estate Co Ltd's Transfer [1968] Ch 491, [1968] 1 All ER 457; Eagling v Gardner [1970] 2 All ER 838; The American Law Institute, Restatement of Property (St. Paul, MN: 1944), § 541; Wichmeyer v. Finch, 231 Ind 282, 107 N.E.2d 661, 665 (1952); Cf. Steinmann v. Silverman, 14 NY.2d 243, 251 NYS.2d 1, 200 N.E.2d 192 (1964) where there was no "common scheme" with respect to the covenants). "The material thing I [Greene M.R.] think is that every purchaser … must know when he buys what are the regulations to which he is subjecting himself, and what are the regulations to which other purchasers on the estate will be called upon to subject themselves", White v Bijou Mansions Ltd [1938] Ch 351, 361, [1938] 1 All ER 546 (CA). A scheme of development may apply in the same way if the land is sold on long-term ground leases.
Oscar, the owner in fee simple, laid out a subdivision of 325 lots on 150 acres of land. He obtained governmental approval (as required by applicable ordinances) and, between 1968 and 1970, he sold 140 of the lots, inserting in each of the 140 deeds the following provision: "The Grantee, for himself and his heirs, assigns and successors, covenants and agrees that the premises conveyed herein shall have erected thereon one single-family dwelling and that no other structure (other than a detached garage normally incident to a single-family dwelling) shall be erected or maintained; and, further, that no use shall ever be made or permitted to be made than occupancy by a single family for residential purposes only." Because of difficulty encountered in selling the remaining lots for single family use, in January, 1971, Oscar advertised the remaining lots with prom inent emphasis: " These lots are not subject to any restrictions and purchasers will find them adaptable to a wide range of uses."
Payne had purchased one of the 140 lots and brought suit against Oscar to establish that the remaining 185 lots, as well as the 140 sold previously, can be used only for residential purposes by single families. Assuming that procedural requirements have been met to permit adjudication of the issue Payne has tendered, which of the following is the most appropriate comment?
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The outcome turns on whether a common development scheme had been established for the entire subdivision.
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We have acknowledged, but never expressly adopted, the common scheme of development doctrine, also known as the doctrine of implied equitable servitudes or implied restrictive covenants. See Thompson v. Pendleton, 1997 ME 127, ¶ 11 n. 2, 697 A.2d 56; 3 W Partners v. Bridges, 651 A.2d 387, 389 (Me.1994); Olson v. Albert, 523 A.2d 585, 588 (Me.1987) (per curiam); Chase v. Burrell, 474 A.2d 180, 181–82 (Me.1984). The doctrine applies when
(1) a common owner subdivides property into a number of lots for sale; (2) the common owner has a “general scheme of development” for the property as a whole, in which the use of the property will be restricted; (3) the vast majority of subdivided lots contain restrictive covenants which reflect the general scheme; (4) the property against which application of an implied covenant is sought is part of the general scheme of development; and (5) the purchaser of the lot in question has notice, actual or constructive, of the restriction.
Thompson, 1997 ME 127, ¶ 11 n. 2, 697 A.2d 56 (quoting Chase, 474 A.2d at 181). “The common grantor may establish a general scheme by conveying the majority of his subdivided lots subject to a restriction that reflects the general scheme.” 3 W Partners, 651 A.2d at 389. Whether a lot is part of a common scheme of development is a factual finding that we review for clear error. See Chase, 474 A.2d at 181–82. A finding is clearly erroneous only when it lacks any competent support in the record. Id.
Oscar, the owner in fee simple, laid out a subdivision of 325 lots on 150 acres of land. He obtained governmental approval (as required by applicable ordinances) and, between 1968 and 1970, he sold 140 of the lots, inserting in each of the 140 deeds the following provision: "The Grantee, for himself and his heirs, assigns and successors, covenants and agrees that the premises conveyed herein shall have erected thereon one single-family dwelling and that no other structure (other than a detached garage normally incident to a single-family dwelling) shall be erected or maintained; and, further, that no use shall ever be made or permitted to be made than occupancy by a single family for residential purposes only." Because of difficulty encountered in selling the remaining lots for single family use, in January, 1971, Oscar advertised the remaining lots with prom inent emphasis: " These lots are not subject to any restrictions and purchasers will find them adaptable to a wide range of uses."
Suppose that Oscar sold 50 lots during 1971 without inserting in the deeds any provisions relating to structures or uses. Doyle purchased one of the 50 lots and proposes to erect a service station and to conduct a retail business for the sale of gasoline, etc. Pringle purchased a lot from Boyer. Boyer had purchased from Oscar in 1968 and the deed had the provision that is quoted in the fact situation. Pringle brings suit to prevent Doyle from erecting the service station and from conducting a retail business. In the litigation between Pringle and Doyle, which of the following constitutes the best defense for Doyle?
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The facts do not establish a common building or development scheme forte entire subdivision.
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Battery is an intentional, unconsented-to, injurious or otherwise offensive physical contact with the victim (a completed assault, so to speak): “Although the word ‘assault’ is sometimes used loosely to include a battery, and the whole expression ‘assault and battery’ to mean battery, it is more accurate to distinguish between the two separate crimes, assault and battery, on the basis of the existence or non-existence of physical injury or offensive touching.” Wayne R. LaFave, 2 Substantive Criminal Law § 16.1 (2d ed., Westlaw database updated Sept. 2014) (footnotes omitted).
nan
Adam and Bailey. brothers, operated an illicit still. They customarily sold to anyone unless they suspected the person of being a revenue agent or an informant. One day when Adam was at the still alone, he was approached by Mitchell, who asked to buy a gallon of liquor. Mitchell was in fact a revenue officer. After Adam had sold him the liquor, Mitchell revealed his identity. Adam grabbed one of the rifles that the brothers kept handy in case of trouble with the law, and shot and wounded Mitchell. Other officers, hiding nearby, overpowered and arrested Adam. Shortly thereafter, Bailey came on the scene. The officers in hiding had been waiting for him. One of them approached him and asked to buy liquor. Bailey was suspicious and refused to sell. The officers nevertheless arrested him. Adam and Bailey were charged with conspiracy to violate revenue laws, illegal selling of liquor, and battery of the officer. On the charge of battery, which statement concerning Adam and Bailey is true?
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Both are guilty.
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While hearsay is generally inadmissible as evidence, a number of exclusions and exceptions allow statements that meet the definition of hearsay to be presented in court.
Expert witnesses frequently rely on the work of other experts to inform their opinions. The relied-upon professionals may not be present in court; in some instances, they may no longer even be alive. To what extent is an expert witness’s basis for an opinion admissible, and to what extent is it hearsay?
While various state courts differ as to the details of this question, some general guidelines can help attorneys begin to explore questions of hearsay in expert witness testimony.
Understanding Hearsay in the Expert Witness Context
Federal Rule of Evidence 703 allows an expert witness to “base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”
Rule 703 goes on to explain that if the facts or data are the type that experts in the same field would reasonably rely on to form similar opinions, the facts or data do not have to be admissible in order for the witness’s opinion to be admissible. However, inadmissible facts or data may be disclosed to the jury “only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”
Rule 703 raises several issues worth considering when evaluating expert witness testimony for hearsay.
nan
The bus in which Pat was riding was struck from the rear by a taxi. He sued Cab Company for a claimed neck injury. Cab Company claimed the impact was too slight to have caused the claimed injury and introduced testimony that all passengers had refused medical attention at the time of the accident. Pat called a doctor from City Hospital to testify that three persons (otherwise proved to have been on the bus) were admitted to the hospital for treatment of severe neck pain within a week after the accident. The trial judge should rule the doctor's testimony
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admissible if other testimony establishes causal connection between the other passengers' pain and the accident
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the Rule Against Perpetuities. The Rule is violated when there is a possibility of vesting beyond the perpetuity period. Melcher v. Camp, supra, 435 P.2d at page 115.
nan
Odum owned Brightacre (a tract of land) in fee simple. He conveyed it "to Pike, his heirs and assigns; but if Farley shall be living thirty years from the date of this deed, then to Farley, his heirs and assigns." The limitation "to Farley, his heirs and assigns" is
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valid, because the interest will vest, if at all, within a life in being
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A contract is aleatory when, because of its nature or according to the parties' intent, the performance of either party's obligation, or the extent of the performance, depends on an uncertain event.
Neff and Owens owned adjoining residences in Smithville. In 1971, they hired a contractor to lay sidewalks in front of both of their homes. Each man was to pay the contractor for that part of the work attributable to his property. After he had paid the bill which the contractor had submitted to him, Neff became convinced that the contractor had erred and had charged him for labor and materials which were used for part of the sidewalk in front of Owens' property. Neff thereupon asked Owens to reimburse him for the amount which he assumed he had erroneously paid the contractor. After a lengthy discussion, and although he was still convinced that he owed Neff nothing, Owens finally said: "I want to avoid trouble, and so if you agree not to sue for reimbursement, I'll employ a caretaker for a three-year term to keep our sidewalks free of ice and snow." Neff orally assented. Although he could have hired the man for three years, Owens hired Parsons in October, 1971, to keep the snow and ice off the sidewalks for the winter, November 1971-March 1972. During the early fall of 1972, Owens decided to go to Florida for the winter. He told his nephew, Morse, that he could live in Owens' house for the winter provided Morse would hire someone to keep the snow and ice off the walks in front of both Neff's and Owens' properties, and suggested that Morse could hire Parsons for that task at relatively little cost. Morse moved into Owens' home in October, 1972, but moved out November, 1972, prior to any icing or snowfall. He did not employ anyone to remove snow and ice in front of either property. Owens did not know that Morse had moved out of his home until he returned to Smithville in the spring. During the winter Neff had kept his own walks clean. No one cleaned the snow and ice from the walks in front of Owens' property.
Assume that the contractor had made no error and that Neff had paid only for labor and materials for the walk in front of his own property. Was Owens' promise to hire a caretaker supported by consideration?
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Yes.
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“A third party may recover on a contract made between other parties only if the parties intended to secure some benefit to that third party, and only if the contracting parties entered into the contract directly for the third party's benefit.” MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999) (internal citations omitted). “To demonstrate that it is a third-party beneficiary to a contract, a party must prove that it is either a donee or creditor beneficiary of the contract, and not someone who is benefitted only incidentally by performance of the contract.” United Neurology, P.A. v. Hartford Lloyd's Ins. Co., 101 F.Supp.3d 584, 592 (S.D.Tex.2015). The Supreme Court of Texas defines what constitutes a “donee beneficiary” and a “creditor beneficiary”:
One is a donee beneficiary if the performance promised will, when rendered, come to [it] as a pure donation. If on the other hand, that performance will come to [it] in satisfaction of a legal duty owed to [it] by the promise, [it] is a creditor beneficiary ... this duty may be an “indebtedness, contractual obligation or other legally enforceable commitment” owed to the third party.
MCI Telecomms., 995 S.W.2d at 651 (internal citations omitted).
Neff and Owens owned adjoining residences in Smithville. In 1971, they hired a contractor to lay sidewalks in front of both of their homes. Each man was to pay the contractor for that part of the work attributable to his property. After he had paid the bill which the contractor had submitted to him, Neff became convinced that the contractor had erred and had charged him for labor and materials which were used for part of the sidewalk in front of Owens' property. Neff thereupon asked Owens to reimburse him for the amount which he assumed he had erroneously paid the contractor. After a lengthy discussion, and although he was still convinced that he owed Neff nothing, Owens finally said: "I want to avoid trouble, and so if you agree not to sue for reimbursement, I'll employ a caretaker for a three-year term to keep our sidewalks free of ice and snow." Neff orally assented. Although he could have hired the man for three years, Owens hired Parsons in October, 1971, to keep the snow and ice off the sidewalks for the winter, November 1971-March 1972. During the early fall of 1972, Owens decided to go to Florida for the winter. He told his nephew, Morse, that he could live in Owens' house for the winter provided Morse would hire someone to keep the snow and ice off the walks in front of both Neff's and Owens' properties, and suggested that Morse could hire Parsons for that task at relatively little cost. Morse moved into Owens' home in October, 1972, but moved out November, 1972, prior to any icing or snowfall. He did not employ anyone to remove snow and ice in front of either property. Owens did not know that Morse had moved out of his home until he returned to Smithville in the spring. During the winter Neff had kept his own walks clean. No one cleaned the snow and ice from the walks in front of Owens' property.
Assuming there is an enforceable contract between Owens and Morse, does Neff have an action against Morse?
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Yes, because Neff is a creditor thirdparty beneficiary of the contract.
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To find the defendant guilty of involuntary manslaughter you must be convinced beyond a reasonable doubt (that) the act or acts charged were the proximate cause of the death under such circumstances as to constitute involuntary manslaughter.
By the proximate cause of the death is meant that which, in natural and continued sequence, or chain of events, unbroken by an efficient intervening cause, aids in producing the death, and without which it would not have occurred.
nan
Defendant was driving his automobile at a legal speed in a residential zone. A child darted out in front of him and was run over and killed before Defendant could prevent it. Defendant's driver's license had expired three months previously; Defendant had neglected to check when it was due to expire. Driving without a valid license is a misdemeanor in the jurisdiction. On a charge of manslaughter, Defendant should be found
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not guilty because the offense was not the proximate cause of the death
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There are a number of defenses to a public disclosure claim. Below, you'll find explanations of some of the most common defenses:
Legitimate public interest
Whether the public has a legitimate interest in the facts-at-issue is a question that depends on the context of the case, and one in which there is no particular formula for the courts to follow. Whether this defense can be effectively asserted will depend largely on whether the person involved has made him or herself - in a temporary newsworthy capacity or a more permanent celebrity capacity - something of a public figure. In such cases, details of their private lives are more likely to be considered items of legitimate public interest. The passage of time may lessen the public interest in a given fact (the newsworthiness of it), which may weaken this defense.
Consent
Consent is a total defense. If the plaintiff has consented in some way to the disclosure, whether through a release form or through accepting an interview, then he or she cannot pursue a claim for public disclosure of private fact.
Public Record
Matters of public record, such as birth date, military service records, and others, are exempted. The defendant may claim this defense by showing that the disclosed fact was actually a matter of public record. However, it should be noted that, unlike defamation actions, truth is no defense to a claim for public disclosure of private facts. This means that a defendant cannot refute a claim by showing that the disclosed fact was actually true or accurate.
nan
Pauline, an unmarried female, was prominent in the women's liberation movement. She recently gave birth to a baby and publicly announced that she had no intention of marrying the father or disclosing his identity. The local newspaper, Journal, decided to do a series of articles on Pauline, entitled "The Perils of Pauline." The first article about Pauline discussed her parents. The article correctly stated that Mary, her mother, had died recently and Frank, her father, is still living. The article referred to the fact that at the time of Pauline's birth there were rumors that she had been born six months after the marriage of Mary and Frank, that Frank was not in fact her father, and that a person identified as Albert, who had played minor roles in two motion pictures, was her real father. Albert has lived in retirement for the last ten years. If Pauline asserts a claim based on invasion of privacy againstJournal for the statements in the first article about her birth and it is established that the statements are true, the most likely result is that Pauline will
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not prevail, because of her announcement concerning the birth of her own child
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“Typically, a remainder interest occurs when a possessory interest in property (often a life estate) is given to one person, with a subsequent taking of the estate in another person.” In re Townley Bypass Unified Credit Tr., 252 S.W.3d 715, 717 (Tex. App.—Texarkana 2008, pet. denied). “If a remainder interest is in an ascertainable person, and no condition precedent exists other than the termination of prior estates, then it is a vested remainder.” Id. “Texas courts will not construe a remainder as contingent when it can reasonably be taken as vested.” McGill v. Johnson, 799 S.W.2d 673, 675 (Tex. 1990). “[A] remainder is vested when there is a person in being at the creation of the interest who would have a right to immediate possession upon termination of the intermediate estate.” Townley, 252 S.W.3d at 717 (citing Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888, 891 (1948)). A vested remainder may be transferred. See id. at 718.
nan
Homer conveyed his home to his wife, Wanda, for life, remainder to his daughter, Dixie. There was a $20,000 mortgage on the home, requiring monthly payments covering interest to date Plus a portion of the principal. Which of the following statements about the monthly payment is correct?
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Wanda must pay the portion of the monthly payment which represents interest.
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Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. 1602. And interrogation includes not only “express questioning,” but also “any words or actions ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Absent any exception to the Miranda requirement, the police's failure to administer the warnings before a defendant is subjected to custodial interrogation requires the exclusion of his statements from evidence. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).
nan
The police, answering a complaint about noise, arrived at Sam's apartment and found Sam's wife dead on the living room floor. One of the officers turned to Sam and said, "What happened?" Sam replied, "She was a bitch and I took care of her." At Sam's trial his statement should be ruled
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admissible because the statement was made at the scene, was essentially volunteered, and was not a product of a custodial interrogation
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Rule 701 requires that lay witness opinion testimony be “rationally based on the perception of the witness.” See F.R.E. 701(a). Rule 901(b)(2) governs lay witness opinion testimony as it relates to handwriting identification. To be admissible, such testimony must be “based upon familiarity not acquired for purposes of the litigation.” Thus, nonexpert handwriting identification opinion testimony is admissible under Rule 901(b)(2) only if it satisfies Rule 701's requirements for lay witness opinion testimony. If either Rule's requirements are not met, the testimony is inadmissible.
The Eleventh Circuit held that establishing a proper foundation under Rules 701 and 901(b)(2) requires “detailed information” about the witness's relationship with the person whose handwriting is in question. It also requires the witness to identify “with particularity” the material relied on to establish familiarity with the person's handwriting.
The Eleventh Circuit agreed with the district court that the plaintiff's affidavit did not provide a foundation for her asserted familiarity with the insured's handwriting. Missing from the affidavit was detailed information regarding the correspondence or documents on which her claimed familiarity was based. Also absent was detailed information about her relationship with the insured. Without this, her testimony was inadmissible.
nan
John Smith has denied his purported signature on a letter which has become critical in a breach of contract suit between Smith and Miller. At trial, Miller's counsel calls Alice, a teacher, who testifies that she taught John Smith mathematics in school ten years earlier, knows his signature, and proposes to testify that the signature to the letter is that of John Smith. Smith's counsel objects. The trialjudge should
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overrule the objection on the ground that a layman may identify handwriting if he has seen the person in question write, and has an opinion concerning the writing in question
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There are three questions: (1) As to the plaintiff's due care; (2) as to the negligence of the motorman of the car; and (3) as to the defendant's negligence. To questions put to them by the presiding judge after they had returned their verdict the jury answered that the plaintiff and motorman were in the exercise of due care, and that the defendant *261 was negligent. We think that the case was rightly submitted to the jury and we discover no error in regard to the instructions that were given or refused.
1. As to the plaintiff's due care. The plaintiff was where he had a right to be and was engaged in the performance of his duty, and whether he should have seen and guarded against the danger of a collision and have exercised more supervision over the motorman, and whether, taking all of the circumstances into account, he was in the exercise of due care was plainly for the jury.
2. As to the negligence of the motorman. We assume in the defendant's favor that if the motorman's negligence caused or contributed to the collision the plaintiff cannot recover. Yarnold v. Bowers, 186 Mass. 396, 71 N. E. 799; Allyn v. B. & M. R. R., 105 Mass. 77. The instructions on this point were, to say the least, sufficiently favorable to the defendant. We do not see how it could have been ruled as matter of law that the motorman was negligent. The question of due care or negligence is ordinarily one for the jury. When the facts are undisputed it becomes one of law. In this case it was for the jury to determine what the facts were and then decide whether they showed that the motorman was or was not negligent. Whether he should have discovered the plight of the automobile before he did and whether he exercised proper care in the way in which he operated the car after he did discover it were clearly questions for the jury.
3. As to the defendant's negligence. There was testimony which, if believed, tended to show that the accident was due to failure on the defendant's part to use the emergency brake, in other words to what might be found to be negligence in the manner in which he operated the car. It was for the jury to give such weight as they saw fit to his testimony and explanation in relation thereto. It was also for them to say whether he exercised due care in turning into Leyford Terrace as he did and whether if he did not such want of due care on his part contributed to the accident. The question of defendant's negligence like that of the plaintiff's and motorman's due care was for the jury. It could not be ruled as matter of law that there was no evidence of negligence on his part.
Susie Blake, a working woman, always brought her lunch to eat in the office. One Saturday afternoon she went to Roger's Market, a local self-service grocery, and bought a can of corned beef. The can had printed on its label "A Product of West Beef Company." The company was a reputable supplier of beef products. On Sunday evening, Susie prepared a sandwich for lunch for the next day, using the can of corned beef she had bought on Saturday. When Susie bit into her sandwich at lunch time the next day, a large sliver of bone concealed in the corned beef slice pierced between her teeth, broke one off, and came to rest deep in the roof of her mouth. This accident caused her to suffer severe pain and to incur medical expenses of $700. Susie brought two claims for damages: one against Roger's Market and the other against West Beef Company. The claims were tried together. At the trial, Susie proved all of the above facts leading up to her injury as well as the elements of her damage. West Beef Company, one of the defendants, proved that it had not processed and packed the corned beef, but that such had been done by its regular and independent supplier, Meat Packers, Inc. West Beef Company further proved that it had never obtained from Meat Packers, Inc. defective meat products, and that it had no way of knowing that the can contained any dangerous material. Roger's Market, the other defendant, proved that it had no way of knowing the content of the can was likely to cause harm, and that it had sold the products of West Beef Company for a number of yearshwithout ever having been told by a customer that the products were defective. Both defendants agreed by stipulation in open court that Meat Packers, Inc. had been guilty of negligence in packing the corned beef containing the sliver of bone.
If Susie's claim against Roger's Market is based on a negligence theory, Susie will
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not recover, because there was no evidence that the defendant failed to exercise due care in selling her the corned beef
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In order to prove his product-liability claim Markel had to show that (1) the DTG wheels on his ATV were in a defective condition unreasonably dangerous for their intended use, (2) the defect existed when the wheels left DTG's control, and (3) the defect proximately caused Markel's injuries. Bilotta, 346 N.W.2d at 623 n.3. Expert testimony is necessary to get a product-liability claim past summary judgment when the product at issue and any of its relevant inner workings are beyond the ken of a lay jury. See Atwater Creamery Co. v. W. Nat'l Mut. Ins. Co., 366 N.W.2d 271, 279 (Minn. 1985); see also Wagner v. Hesston Corp., 450 F.3d 756, 761 & n.9 (8th Cir. 2006) (applying Minnesota law to affirm grant of summary judgment in product-liability case where there was no admissible expert testimony regarding design defect in hay baler).
Susie Blake, a working woman, always brought her lunch to eat in the office. One Saturday afternoon she went to Roger's Market, a local self-service grocery, and bought a can of corned beef. The can had printed on its label "A Product of West Beef Company." The company was a reputable supplier of beef products. On Sunday evening, Susie prepared a sandwich for lunch for the next day, using the can of corned beef she had bought on Saturday. When Susie bit into her sandwich at lunch time the next day, a large sliver of bone concealed in the corned beef slice pierced between her teeth, broke one off, and came to rest deep in the roof of her mouth. This accident caused her to suffer severe pain and to incur medical expenses of $700. Susie brought two claims for damages: one against Roger's Market and the other against West Beef Company. The claims were tried together. At the trial, Susie proved all of the above facts leading up to her injury as well as the elements of her damage. West Beef Company, one of the defendants, proved that it had not processed and packed the corned beef, but that such had been done by its regular and independent supplier, Meat Packers, Inc. West Beef Company further proved that it had never obtained from Meat Packers, Inc. defective meat products, and that it had no way of knowing that the can contained any dangerous material. Roger's Market, the other defendant, proved that it had no way of knowing the content of the can was likely to cause harm, and that it had sold the products of West Beef Company for a number of yearshwithout ever having been told by a customer that the products were defective. Both defendants agreed by stipulation in open court that Meat Packers, Inc. had been guilty of negligence in packing the corned beef containing the sliver of bone.
If Susie's claim against West Beef Company is based on the theory of strict liability in tort, Susie will
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recover, because the can contained a sliver of bone when the defendant sold it
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
nan
A newly-enacted state criminal statute provides, in its entirety, "No person shall utter to another person in a public place any annoying, disturbing or unwelcome language." Smith followed an elderly woman for three blocks down a public street, yelling in her ear offensive four-letter words. The woman repeatedly asked Smith to leave her alone, but he refused. In the subsequent prosecution of Smith, the first under this statute, Smith
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cannot be convicted, because, though his speech here may be punished by the state, the state may not do so under this statute
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To prove AWIKWA, the government must prove, beyond a reasonable doubt, that the defendant (1) committed an assault16 on the victim, and (2) did so with the specific intent to kill, (3) while armed with a dangerous weapon. Riddick v. United States, 806 A.2d 631, 639 (D.C.2002).
nan
In which of the following situations is Defendant's claim of intoxication most likely to result in his being found not guilty?
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Defendant is charged with assault with intent to kill Watts as a result of his wounding Watts by shooting him. Defendant claims he was so drunk he did not realize anyone else was around when he fired the gun.
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As mentioned above, chain of title is the complete ownership history of the property and should always reflect continuous, unbroken ownership. There are other documents that prove current ownership, like a deed or a title, but it’s the chain of title that becomes important should your rights to own the property ever be called into question.
In real estate terms, a deed is the written document which transfers title (ownership) or an interest in property to another person. A title is a bundle of rights in a piece of property in which a party may own either a legal interest or equitable interest. “Bundle of rights” is the term for the set of legal privileges that is generally afforded to a real estate buyer and covers all the things they can and can't do with the property as its owner.
In terms of chain of title, all of these documents work together. For example, a mistake in the recording of the deed could lead to huge problems with the chain of title because in most cases the person who has a properly recorded deed will prevail over one who claims the property without one.
Owen held in fee simple Farmdale, a large tract of vacant land. The state wherein Farmdale is situated has a statute which provides, in substance, that unless the conveyance is recorded, every deed orother conveyance of an interest in land is void as to a subsequent purchaser who pays value without notice of such conveyance. The following transactions occurred in the order given. First: Owen conveyed Farmdale, for a fair price, to Allred by general warranty deed. Allred did not immediately record. Second: Owen executed a mortgage to secure repayment of a loan concurrently made to Owen by Leon. Leon had no notice of the prior conveyance to Allred and promptly duly recorded the mortgage. Third: Owen, by general warranty deed, gratuitously conveyed to Niece, who promptly duly recorded this deed. Fourth: Allred duly recorded his deed from Owen. Fifth: Niece, by general warranty deed, conveyed Farmdale to Barrett. Barrett had no actual notice of any of the prior transactions, paid full value, and promptly duly recorded the deed.
Asserting that his title was held free of any claim by Barrett, Allred instituted suit against Barrett to quiet title to Farmdale. If Barrett prevails, it will be because
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Allred's prior recorded deed is deemed to be outside Barrett's chain of title
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The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted.
Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10–2267, 10–2272, 10–2275, 10–2279, 10–2289, p. 8 (La. 10/25/11), 79 So.3d 246, 256–57.
Owen held in fee simple Farmdale, a large tract of vacant land. The state wherein Farmdale is situated has a statute which provides, in substance, that unless the conveyance is recorded, every deed orother conveyance of an interest in land is void as to a subsequent purchaser who pays value without notice of such conveyance. The following transactions occurred in the order given. First: Owen conveyed Farmdale, for a fair price, to Allred by general warranty deed. Allred did not immediately record. Second: Owen executed a mortgage to secure repayment of a loan concurrently made to Owen by Leon. Leon had no notice of the prior conveyance to Allred and promptly duly recorded the mortgage. Third: Owen, by general warranty deed, gratuitously conveyed to Niece, who promptly duly recorded this deed. Fourth: Allred duly recorded his deed from Owen. Fifth: Niece, by general warranty deed, conveyed Farmdale to Barrett. Barrett had no actual notice of any of the prior transactions, paid full value, and promptly duly recorded the deed.
Asserting that his title was held free of any claim by Leon, Allred instituted suit against Leon to quiet title to Farmdale. Judgment should be for
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Leon, because he advanced money without notice of Allred's rights
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“A bona fide purchaser for value is one who without notice of another's claim of right to, or equity in, the property prior to his acquisition of title, has paid the vendor a valuable consideration.” *661 Glaser v. Holdorf, 56 Wash.2d 204, 209, 352 P.2d 212 (1960). Where a purchaser has notice of facts sufficient to put an ordinarily prudent person on inquiry, the purchaser is on notice of all defects in title or equitable rights of others that the inquiry would have uncovered. Miebach v. Colasurdo, 102 Wash.2d 170, 175–76, 685 P.2d 1074 (1984).
Owen held in fee simple Farmdale, a large tract of vacant land. The state wherein Farmdale is situated has a statute which provides, in substance, that unless the conveyance is recorded, every deed orother conveyance of an interest in land is void as to a subsequent purchaser who pays value without notice of such conveyance. The following transactions occurred in the order given. First: Owen conveyed Farmdale, for a fair price, to Allred by general warranty deed. Allred did not immediately record. Second: Owen executed a mortgage to secure repayment of a loan concurrently made to Owen by Leon. Leon had no notice of the prior conveyance to Allred and promptly duly recorded the mortgage. Third: Owen, by general warranty deed, gratuitously conveyed to Niece, who promptly duly recorded this deed. Fourth: Allred duly recorded his deed from Owen. Fifth: Niece, by general warranty deed, conveyed Farmdale to Barrett. Barrett had no actual notice of any of the prior transactions, paid full value, and promptly duly recorded the deed.
Assume for this question only that Niece had not conveyed to Barrett. After Allred recorded his deed from Owen. Allred, asserting that Allred's title was held free of any claim by Niece, instituted suit against Niece to recover title to Farmdale. Judgment should be for
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Allred, because Niece was not a bona fide purchaser who paid value
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Under the “common scheme doctrine,” which provides that
[w]here the owner of land divides it into lots in pursuance of a general plan for the development of an exclusively residential area and conveys the several lots to different grantees by deeds containing identical or substantially similar covenants restricting the use of the lots to residential purposes, an action in the nature of a suit in equity may be maintained by an owner of one such lot against the owner or owners of any other lot to compel compliance with the restriction.
Syl. Pt. 1, Jubb v. Letterle, 185 W. Va. 239, 406 S.E.2d 465 (1991) (citing Syl. Pt. 1, Wallace v. St. Clair, 147 W.Va. 377, 127 S.E.2d 742 (1962)).
On May I Ohner telegraphed Byer, "Will sell you any or all of the lots in Grove subdivision at $5,000 each. Details follow in letter." The letter contained all the necessary details concerning terms of payment, insurance, mortgages, etc., and provided, "This offer remains open until June I." On May 2, after he had received the telegram but before he had received the letter, Byer telegraphed Ohner, " Accept your offer with respect to lot 101." Both parties knew that there were fifty lots in the Grove subdivision and that they were numbered 101 through 150.
For this question only, assume that Ohner and Byer were bound by a contract for the sale of lot 101 for $5,000, that on May 3 Ohner telephoned Byer that because he had just discovered that a shopping center was going to be erected adjacent to the Grove subdivision, he would "have to have $6,000 for each of the lots including lot 101," that Byer thereupon agreed to pay him $6,000 for lot 101, and that on May 6 Byer telegraphed, "Accept your offer with respect to the rest of the lots." Assuming that two contracts were formed and that there is no controlling statute, Byer will most likely be required to pay
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only $5,000 for lot 101, but $6,000 for the remaining forty-nine lots
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An offer vests in the offeree the power to conclude a bargain, that is, the power of acceptance. Much of the law of offer and acceptance concerns the question: What kinds of events terminate that power? One such event is lapse of the offer. Another is revocation. Normally an offeror may revoke the offer at any time before acceptance. However, often an offeror will promise to hold the offer open for a given period of time. If the offeree gives consideration for such a promise the promise is referred to as an option and is enforceable. If the offeree does not give consideration for such a promise the offer is referred to as a firm offer and normally is revocable unless relied upon. This rule is unjustified. If an offeror promises to hold an offer she does so to further her own interests. Failure to enforce such promises is therefore against the interests of offerors as a class.
On May I Ohner telegraphed Byer, "Will sell you any or all of the lots in Grove subdivision at $5,000 each. Details follow in letter." The letter contained all the necessary details concerning terms of payment, insurance, mortgages, etc., and provided, "This offer remains open until June I." On May 2, after he had received the telegram but before he had received the letter, Byer telegraphed Ohner, " Accept your offer with respect to lot 101." Both parties knew that there were fifty lots in the Grove subdivision and that they were numbered 101 through 150.
For this question only, assume that on May 5 Ohner telephoned Byer that he had sold lots 102 through 150 to someone else on May 4 and that Byer thereafter telegraphed Ohner. "Will take the rest of the lots." Assume further that there is no controlling statute. In an action by Byer against Ohner for breach of contract. Byer probably will
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not succeed, because Byer's power of acceptance was terminated by an effective revocation
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Seller's breach of the implied covenant of good faith may excuse the condition. In every listing contract or other employment agreement with the broker, there is an implied covenant of good faith and fair dealing that the principal will not act in bad faith to deprive the broker of the benefits of the agreement.1
On May I Ohner telegraphed Byer, "Will sell you any or all of the lots in Grove subdivision at $5,000 each. Details follow in letter." The letter contained all the necessary details concerning terms of payment, insurance, mortgages, etc., and provided, "This offer remains open until June I." On May 2, after he had received the telegram but before he had received the letter, Byer telegraphed Ohner, " Accept your offer with respect to lot 101." Both parties knew that there were fifty lots in the Grove subdivision and that they were numbered 101 through 150.
For this question only, assume that on May 6 Byer telegraphed Ohner. "Will take the rest of the lots' dand that on May 8 Ohner discovered that he did not have good title to the remaining lots. Which of the following would provide the best legal support to Ohner's contention that he was not liable for breach of contract as to the remaining forty-nine lots?
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Termination of the offer by Byer's having first contracted to buy lot 101
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“A private nuisance exists when an activity substantially and unreasonably interferes with the use and enjoyment of another's property.” Dunlop v. Daigle, 122 N.H. 295, 298, 444 A.2d 519 (1982). To constitute a nuisance, the defendants' activities must cause harm that exceeds the customary interferences with land that a land user suffers in an organized society, and be an appreciable and tangible interference with a property interest. Id. “In determining whether an act interfering with the use and enjoyment is so unreasonable and substantial as to amount to a nuisance and warrant an injunction, a court must balance the gravity of the harm to *781 the plaintiff against the utility of the defendant's conduct, both to himself and to the community.” Treisman v. Kamen, 126 N.H. 372, 375, 493 A.2d 466 (1985) (quotation omitted). It is the plaintiffs' burden to prove the existence of a nuisance by a preponderance of the evidence. Dunlop, 122 N.H. at 295, 444 A.2d 519.
nan
Philip was a 10-year-old boy. Macco was a company that sold new and used machinery. Macco stored discarded machinery, pending sale for scrap, on a large vacant area it owned. This area was unfenced and was one-quarter mile from the housing development where Philip lived. Macco knew that children frequently played in the area and on the machinery. Philip's parents had directed him not to play on the machinery because it was dangerous. One day Philip was playing on a press in Macco's storage area. The press had several wheels, each geared to the other. Philip climbed on the largest wheel, which was about five feet in diameter. Philip's weight caused the wheel to rotate, his foot was caught between two wheels that were set into motion, and he was severely injured. A claim for relief was asserted by Philip through a duly appointed guardian. Macco denied liability and pleaded Philip's contributory fault as a defense. In determining whether Macco breached a duty to Philip, which of the following is the most significant'?
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Whether Macco could have eliminated the risk of harm without unduly interfering with Macco's normal operations
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Where a person, by his negligence, creates a situation that calls for rescue, he is subject to two duties – a primary duty to the imperiled victim, and a secondary duty to the rescuer. The rationale behind this is simple: although the wrongdoer might owe no duty of care to the rescuer in the first place, the wrongdoer’s negligence has created a dangerous situation which invites the rescue and the wrongdoer ought, as a reasonable man, to have foreseen the likelihood of intervention by a rescuer.
Si was in the act of siphoning gasoline from Neighbor's car in Neighbor's garage and without his consent when the gasoline exploded and a fire followed. Rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving Si's life and Neighbor's car and garage. In doing so, Rescuer was badly burned.
If Rescuer asserts a claim against Si for personal injuries, Rescuer will
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prevail, because Si was at fault in causing the fire
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An injury that occurs during a rescue effort should be attributed to the party that exposed the person who required assistance to the danger.1 One who is injured while rescuing another can recover to the same extent as the person being rescued.
Si was in the act of siphoning gasoline from Neighbor's car in Neighbor's garage and without his consent when the gasoline exploded and a fire followed. Rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving Si's life and Neighbor's car and garage. In doing so, Rescuer was badly burned.
If Rescuer asserts a claim against Neighbor personal injuries, Rescuer will
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not prevail, because Neighbor was not at fault
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Robbery” is the “[f]elonious taking of ... [any] article of value, in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Id. at 1193 (emphasis added) (citations omitted). Finally, the act of “pillaging” is the “forcible taking of private property by an invading or conquering army from the enemy's subjects.”
nan
Defendant was tried for robbery. Victim Worth were the only witnesses called to.t tify. Victim testified that Defend; threatened her with a knife, grabbed her pur and ran off with it. Worth testified that hes Defendant grab Victim's purse and run av with it but that he neither saw a knife nor he any threats. On this evidence the jury co properly return a verdict of guilty of
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either robbery or larceny
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This brings us to the principal issue. The authority of the President to settle claims of American nationals through executive agreements is clear. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, ––––, 156 L.Ed.2d 376, 2003 WL 21433477, at *11 (U.S. June 23, 2003); id. at ––––, at *23 (Ginsburg, J., dissenting). There is no doubt that laws passed after the President enters into an executive agreement may abrogate the agreement. The question here is whether legislation enacted while the case was pending abrogated the Algiers Accords.
nan
Congressional legislation authorizing marriages and divorces as a matter of federal law on prescribed terms and conditions could most easily be upheld if it
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applied only to marriages and divorces in the District of Columbia
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“Legal cause is established if an injury was foreseeable as the type of harm that a reasonable person would expect to see as a likely result of his or her conduct. [Citation.] Although the foreseeability of an injury will establish legal cause, the extent of the injury or the exact way in which it occurs need not be foreseeable.” Hooper v. County of Cook, 366 Ill.App.3d 1, 7, 303 Ill.Dec. 476, 851 N.E.2d 663, 669 (2006).
In City of State Y, Maple Street is a local public thoroughfare, designated as a one-way street for northbound traffic. Pine Street is a public thoroughfare, designated is a One-way street for eastbound traffic. Maple and Pine Streets intersect at right angles. The intersection is controlled by traffic lights. There are two sets of lights, one at the northeast corner and one at the northwest corner, for traffic on Maple Street. There are two sets of lights, one at the northeast corner and one at the southeast corner, for traffic on Pine Street. Trucker was making a delivery to a market on the east side of Maple Street, just north of its intersection with Pine Street. There being insufficient space for his truck and enclosed trailer, he parked it with the rear of the trailer extending entirely across the crosswalk on the north side of the intersection. The height of the trailer was such that it entirely obscured the traffic light on the northeast corner from the vie" of traffic moving east on Pine Street. Unknown to Trucker, the traffic light at the southeast corner was not functioning, because a collision seventy-two hours earlier had knocked down the pole from which the light was suspended. Visitor, on his first trip to City, w as driving east on Pine Street. Not seeing any traffic light or pole, he entered the intersection at a time when the light was red for eastbound traffic and green for northbound traffic. Driver, proceeding north on Maple Street and seeing the green light, entered the intersection without looking for any cross traffic and struck Visitor's car. Driver received personal injuries, and Visitor's car was damaged severely as a result of the impact. Statutes of State Y make it a misdemeanor (1) to park a motor vehicle so that any part projects into a crosswalk and (2) to enter an intersection contrary to a traffic signal.
If Driver asserts a claim against Trucker and establishes that Trucker was negligent, the likely result is that Trucker',s negligence is
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both an actual and a legal cause of Driver's injuries
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What is a "Failure to Repair" Lawsuit?
Failure to repair lawsuits involves situation where a person has disregarded their duty to repair or fix dangerous conditions, resulting in injury to another person. These types of lawsuits often involve premises liability issues, where the owner of land or property has failed to repair issues with the property.
However, failure to repair can apply to many different situations, including:
Landlords who have a duty to make repairs for tenants
Operators of business ensuring that the premises are safe for patrons
Operators of rental services (for instance, car rentals, go-kart venues, commercial vehicles, etc.)
A failure to repair dangerous conditions or broken items can result in a variety of different injuries, including:
Slip and fall related injuries
Injuries due to burns, fires, explosions, etc.
Injuries from falling objects
Injuries relating to chemical or toxic exposure
Accidents and collisions in vehicles
Various other injures
Failure to repair dangerous conditions can also result in property damage (for instance, if an object falls on someone’s personal belongings).
In City of State Y, Maple Street is a local public thoroughfare, designated as a one-way street for northbound traffic. Pine Street is a public thoroughfare, designated is a One-way street for eastbound traffic. Maple and Pine Streets intersect at right angles. The intersection is controlled by traffic lights. There are two sets of lights, one at the northeast corner and one at the northwest corner, for traffic on Maple Street. There are two sets of lights, one at the northeast corner and one at the southeast corner, for traffic on Pine Street. Trucker was making a delivery to a market on the east side of Maple Street, just north of its intersection with Pine Street. There being insufficient space for his truck and enclosed trailer, he parked it with the rear of the trailer extending entirely across the crosswalk on the north side of the intersection. The height of the trailer was such that it entirely obscured the traffic light on the northeast corner from the vie" of traffic moving east on Pine Street. Unknown to Trucker, the traffic light at the southeast corner was not functioning, because a collision seventy-two hours earlier had knocked down the pole from which the light was suspended. Visitor, on his first trip to City, w as driving east on Pine Street. Not seeing any traffic light or pole, he entered the intersection at a time when the light was red for eastbound traffic and green for northbound traffic. Driver, proceeding north on Maple Street and seeing the green light, entered the intersection without looking for any cross traffic and struck Visitor's car. Driver received personal injuries, and Visitor's car was damaged severely as a result of the impact. Statutes of State Y make it a misdemeanor (1) to park a motor vehicle so that any part projects into a crosswalk and (2) to enter an intersection contrary to a traffic signal.
If Driver asserts a claim against City, the theory on which he has the best chance of prevailing is that City
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was negligent in not replacing the broken pole within seventy-two hours
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This court has long held that to invoke the Uniform Declaratory Judgments Act, chapter 7.24 RCW (UDJA), a plaintiff must establish:
“(1) ... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.”
Id. quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 (1973).
Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statute.
Which of the following potential plaintiffs is most likely to be able to obtain a judicial determination of the validity of this federal statute?
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Contractors who have been awarded contracts by the state of Atlantic for specified highway construction projects, which contracts are contingent on payment to the state of the federal highway construction funds to which it would otherwise be entitled.
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The Spending Clause of the Constitution of the United States empowers Congress “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const., art. I, § 8, cl. 1. “The Clause provides Congress broad discretion to tax and spend for the ‘general Welfare,’ including by funding particular state or private programs or activities.” Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205, ––––, 133 S.Ct. 2321, 2327–28, 186 L.Ed.2d 398 (2013). Incident to this power, Congress may “impose limits on the use of such funds to ensure they are used in the manner Congress intends.” Id. at –––, 133 S.Ct. at 2328.
Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statute.
The strongest argument that can be made in support of the constitutionality of this federal statute is that
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Congress could reasonably believe that the 55 mile-an-hour speed limit will assure that the federal money spent on highways results in greater benefit than harm to the public
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The Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Art. I, § 8, cl. 1. Incident to this power, Congress may attach conditions on the receipt of **2796 federal funds, and has repeatedly employed the power “to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” Fullilove v. Klutznick, 448 U.S. 448, 474, 100 S.Ct. 2758, 2772, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.).
Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statute.
The federal statute relating to disbursement of highway funds conditioned on the 55 mile-an-hour speed limit is probably
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constitutional on the basis of both the spending power and the commerce power
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To establish probable cause, police officers must be able to point to objective circumstances leading them to believe that a suspect committed a crime. A police officer can't establish probable cause by saying only something like, "I just had a hunch that the defendant was a burglar." Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that the facts establish probable cause. But if a judge examines that same information and disagrees, then probable cause does not exist (or did not exist, if the question is being decided after an arrest). Note that probable cause may have existed at the time of an arrest even if the defendant didn't actually do anything wrong. Put differently, an arrest is valid as long as it is based on probable cause, even if the arrested person is innocent.
nan
Detective received informal from Informant, who had given reliable information many times in the past, that Harry was a narcotics dealer. Specifically, Informant said that, two months before, he had visited Harry's apartment with Bill and that on that occasion he saw Harry sell Bill some heroin. Detective knew that Informant, Harry, and Bill were friends. Thereafter, Detective put all this information into affidavit form, appeared before a magistrate, and secured a search warrant for Harry's apartment. The search turned up a supply of heroin. Harry's motion to suppress introduction of the heroin into evidence will most probably be
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granted, because the information supplied to Detective concerned an occurrence too remote in time to justify a finding of probable cause at the time of the search
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only persons whose privacy or property interests are violated may object to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not alone establish such interests
nan
Defendant sold heroin to Morgan. Morgan was later stopped by police for speeding. The police searched Morgan's car and found the heroin concealed under the rear seat. Defendant is charged with illegally selling heroin. Defendant's motion to prevent introduction of the heroin into evidence will most probably be
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denied, because Defendant has no standing to object to the search
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Despite the forgoing, the phrase “while acting in a fiduciary capacity” in section § 523(a)(4) does not qualify the terms “embezzlement” or “larceny.” In re Littleton, 942 F.2d 551, 555 (9th Cir.1991). Therefore, the elements of embezzlement or larceny must be satisfied, to find sufficient grounds for nondischargeability under § 523(a)(4). “Under federal law, embezzlement in the context of nondischargeability requires three elements: ‘(1) property rightfully in the possession of a nonowner; (2) nonowner's appropriation of the property to a use other than which [it] was entrusted; and (3) circumstances indicating fraud.’ ” Id. (citations omitted). Larceny is the fraudulent and wrongful taking and carrying away the property of another with intent to convert such property to the taker's use without the consent of the owner. Lucero v. Montes, 177 B.R. 325, 331 (Bankr.C.D.Cal.1994).
nan
Defendant visited a fellow college student, James, in James's dormitory room. They drank some beer. James produced a box containing marijuana cigarettes and asked if Defendant wanted one. Defendant, afraid of being caught, declined and urged James to get rid of the marijuana. James refused. Shortly thereafter, both went out to get more beer, leaving the door to James's room standing open. Making an excuse about having dropped his pen, Defendant went back into James's room. Still apprehensive about their being caught with the marijuana cigarettes, he took the cigarettes and flushed them down the toilet. He was sure James was too drunk to notice that the cigarettes were missing. Defendant is charged with larceny and burglary (defined in the jurisdiction as breaking and entering the dwelling of another with intent to commit any felony or theft). He should be found guilty of
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larceny only
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Rule of convenience:
Doctrine that specifies the class, as designated in a class gift, closes when a class member is entitled to a distribution of his share of the gift.
Trease owned Hilltop in fee simple. By his will, he devised as follows: "Hilltop to such of my grandchildren who shall reach the age of_21; and by this provision I intend to include all grandchildren whenever born." At the time of his death, Trease had three children and two grandchildren.
Courts hold such a devise valid under the common-law Rule Against Perpetuities. What is the best explanation of that determination?
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All of Trease's children would be measuring lives.
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An inter vivos transfer is a transfer of property made during a person's lifetime. It can be contrasted with a testamentary transfer, which is a transfer made in a will after death.
Trease owned Hilltop in fee simple. By his will, he devised as follows: "Hilltop to such of my grandchildren who shall reach the age of_21; and by this provision I intend to include all grandchildren whenever born." At the time of his death, Trease had three children and two grandchildren.
Which of the following additions to or changes in the facts of the preceding question would produce a violation of the common-law Rule Against Perpetuities?
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The instrument was an inter vivos conveyance rather than a will.
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“A person is a donee beneficiary if the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed nor asserted to be due from the promisee to the beneficiary.” Id. “A person is a creditor beneficiary if the performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary.” Id. “Finally, if the person is neither a donee beneficiary nor a creditor beneficiary, he is an incidental beneficiary.”
Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlementtwith Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "'nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at S1,000, from Doctor, but failed to inform Doctor of First's promise. After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract. stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent.
In an action by Doctor against Victim to recover $1,000, Doctor's best theory ofrecovery is that Doctor
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has a claim based upon an implied-in-fact contract with Victim
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Thus, in order to successfully assert a claim for detrimental reliance, a plaintiff must establish: “(1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one's detriment because of the reliance.” **11 Luther v. IOM Co. LLC, 13–353, pp. 10–11 (La.10/15/13), 130 So.3d 817, 825.
Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlementtwith Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "'nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at S1,000, from Doctor, but failed to inform Doctor of First's promise. After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract. stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent.
In an action by Doctor against First upon First's employment contract with Victim, First is likely to argue in defense that
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Doctor has not materially changed his position in reliance upon First's employment contract
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Implied consent, compared to express consent (where consent is directly and clearly given with explicit words), is the agreement given by a person’s action (even just a gesture) or inaction, or can be inferred from certain circumstances by any reasonable person. The person who gives consent can withdraw the consent anytime and should have the capacity to make valid consent. The actor who gets the consent is bound by the consent and cannot exceed its scope.
Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlementtwith Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "'nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at S1,000, from Doctor, but failed to inform Doctor of First's promise. After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract. stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent.
In an action by Doctor against First upon First's employment contract with Victim, if First attempted to use Victim's release as a defense, Doctor is likely to argue that
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the release was ineffective, because Doctor had impliedly assented to the Victim-First contract
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What Is a Donee Beneficiary?
A donee beneficiary receives the benefit of a contract between two other parties as a gift from one of the parties to the contract. While donee beneficiaries stand to benefit from the fulfillment of a contract, they are not technically party to the contract.
Who Is a Donee Beneficiary?
The donee beneficiary’s relationship to the parties in the contract distinguishes them from other types of third-party beneficiaries. Namely, a donee beneficiary’s claim to benefit from the contract amounts to a gift from one of the contractual parties. Donee beneficiaries are also allowed to include their promised property or estate into their own estate, as in the case of a 5 by 5 Power in Trust.
As with other situations involving third-party beneficiaries, donee beneficiaries have the legal right to demand benefits promised to them once their rights to the contract have vested. This makes them separate from creditor beneficiaries, who can only file suits once they have been made aware of the contracts or intended benefits. However, donee beneficiaries can only claim legal rights after the contract has been executed, per specified criteria.
Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlementtwith Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "'nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at S1,000, from Doctor, but failed to inform Doctor of First's promise. After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract. stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent.
In an action by Doctor against Second, Second is most likely to argue on these facts that
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there is insufficient evidence to support a finding that Doctor was either a creditor or donee beneficiary of Second's promise to First
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A statement is against penal interest when it is so far contrary to the declarant's penal interest that “a reasonable person in the declarant's position would not have made the statement [without] believing it to be true.” See Torres, 1998–NMSC–052, ¶ 14, 126 N.M. 477, 971 P.2d 1267 (internal quotation marks omitted).
Peters sued Davis for $100,000 for injuries received in a traffic accident. Davis charges Peters with contributory negligence and alleges that Peters failed to have his lights on at a time when it was dark enough to require them.
Davis calls Bystander to testify that Passenger, who was riding in Peters' automobile and who also was injured, confided to him at the scene of the accident that "we should have had our lights on." Bystander's testimony is
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inadmissible, because it is hearsay, not within any exception
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Under the Federal Rules of Evidence, a present sense impression is defined as a statement that describes an event while it was occurring or immediately thereafter. A statement that qualifies as a present sense impression is admissible as an exception to the hearsay rule.
Peters sued Davis for $100,000 for injuries received in a traffic accident. Davis charges Peters with contributory negligence and alleges that Peters failed to have his lights on at a time when it was dark enough to require them.
Davis offers to have Bystander testify that he was talking to Witness when he heard the crash and heard Witness, now deceased, exclaim, "That car doesn't have any lights on." Bystander's testimony is
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admissible as a statement of present sense impression
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A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services. Tex.R. Evid. 503(b); Austin v. State, 934 S.W.2d 672, 673 (Tex.Crim.App.1996). Therefore, application of the attorney-client privilege depends on whether the communication sought to be protected is “confidential.” *445 Austin, 934 S.W.2d at 674. A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client. Id. The client bears the burden of establishing the existence of the privilege. Id.
Owner and his employee, Driver, consult Attorney about a motor vehicle collision resulting in a suit by Litigant against Owner and Driver as joint defendants. Attorney calls Irving, his investigator, into the conference to make notes of what is said, and those present discuss the facts of the collision and Owner's insurance. Owner thereafter files a cross-claim against Driver for indemnity for any damages obtained by Litigant.
Litigant calls Driver to testify in Litigant's case in chief to admissions made by Owner in the conference. On objection by Owner, the court should rule that Driver's testimony is
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inadmissible because of the attorneyclient privilege
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The attorney-client privilege arises
“ ‘(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.’ ”
State ex rel. Lanham v. DeWine
Owner and his employee, Driver, consult Attorney about a motor vehicle collision resulting in a suit by Litigant against Owner and Driver as joint defendants. Attorney calls Irving, his investigator, into the conference to make notes of what is said, and those present discuss the facts of the collision and Owner's insurance. Owner thereafter files a cross-claim against Driver for indemnity for any damages obtained by Litigant.
Driver calls Irving in his defense against the cross-claim. He seeks to have Irving testify to admissions made by Owner in the conference. On objection by Owner, the court should rule Irving's testimony
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admissible, because the attorney-client privilege does not apply, in suits between those conferring with him, tojoint consultations with an attorney
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“In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). “Heat of passion” is “any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection.” 236 Kan. at 796, 696 P.2d 381; see also State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 (2012) (“The hallmark of heat of passion is taking action upon impulse without reflection.”).
Read the summaries of the decisions in the four cases (A- D) below. Then decide which is most applicable as a precedent to each of the cases in the questions that follow, and indicate each choice by marking the corresponding space on the answer sheet.
Policeman undertook to arrest Fan for throwing a pop bottle, and hitting a baseball umpire. Fan was innocent and indignantly objected to being arrested. Since Policeman had no warrant, the arrest was illegal. Fan, forcibly resisting Policeman, finally succeeded in seizing Policeman's revolver and shot him dead.
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Defendant saw his wife and Ares go into the woods under circumstances that made him suspect adultery. While following them after they came out of the woods, Defendant was told by Brent that Brent had seen them commit adultery the day before. Defendant got a rifle and shot Ares dead. Defendant's conviction of murder was reversed as the evidence showed guilt only of manslaughter.
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Second-degree murder is defined as “the unlawful killing of a human being with malice, but without premeditation and deliberation.” Id. “A defendant is entitled to have a lesser-included offense submitted to the jury only when there is evidence to support that lesser-included offense.” Id. Our Supreme Court has stated that the test for determining whether an instruction on second-degree murder is required is as follows:
“The determinative factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.”
State v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 66–67 (1998) (quoting State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds, 317 N.C. 193, 344 S.E.2d 775 (1986)).
Read the summaries of the decisions in the four cases (A- D) below. Then decide which is most applicable as a precedent to each of the cases in the questions that follow, and indicate each choice by marking the corresponding space on the answer sheet.
Policeman, having a warrant for Defendant's arrest for a felonious assault, went to his home to arrest him. Defendant, however, resisted and during the ensuing struggle stabbed Policeman fatally with a butcher knife.
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Defendant hit a fellow worker on the head with an iron crowbar, crushing his skull. Although Defendant testified he did not intend to kill, his conviction of murder was affirmed.
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State laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with these overriding national policies in an area constitutionally entrusted to the Federal Government.
A recently enacted state law forbids aliens from owning more than 100 acres of land within the state and directs the state attorney general to bring an action of ejectment whenever an alien owns such land. Zane, a resident alien, located and purchased 200 acres of land in the state after passage of that law. He brings an action in federal court to enjoin the state attorney general from enforcing the statute against him. The defendant moves to dismiss the complaint.
The strongest argument for Zane is that
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the state statute violates the equal protection clause of the Fourteenth Amendment
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A few key things to remember about subject matter jurisdiction:
The constitution allows federal courts to hear cases only where there’s a federal question involved (known as federal question jurisdiction) or where there are parties from different states involved in an amount in controversy that exceeds $75,000 (know as diversity jurisdiction).
BUT: claims that lack federal question or diversity jurisdiction can still be tried in federal court, if they are tied to a claim that does satisfy one of the two through supplemental jurisdiction.
A claim started in state court that could have been tried in federal can be moved there through removal jurisdiction.
A recently enacted state law forbids aliens from owning more than 100 acres of land within the state and directs the state attorney general to bring an action of ejectment whenever an alien owns such land. Zane, a resident alien, located and purchased 200 acres of land in the state after passage of that law. He brings an action in federal court to enjoin the state attorney general from enforcing the statute against him. The defendant moves to dismiss the complaint.
The federal court should
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hear the action, because a federal question is presented
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Unless required by law, contracts need not be in writing to be enforceable. Bill Walker & Assocs., Inc. v. Parrish, 770 S.W.2d 764, 771 (Tenn.Ct.App.1989). While oral contracts are enforceable, persons seeking to enforce them must demonstrate (1) that the parties mutually assented to the terms of the contract and (2) that these terms are sufficiently definite to be enforceable. Davidson v. Holtzman, 47 S.W.3d 445, 453 (Tenn.Ct.App.2000); Castelli v. Lien, 910 S.W.2d 420, 426–27 (Tenn.Ct.App.1995). The mutual assent need not be manifested in writing. It may be manifested, in whole or in part, by the parties' spoken words or by their actions or inactions. Cole–McIntyre–Norfleet Co. v. Holloway, 141 Tenn. 679, 685, 214 S.W. 817, 818 (1919); Restatement (Second) of Contracts § 19(1) (1979).
On March I, Green and Brown orally agreed that Brown would erect a boathouse on Green's lot and dig a channel from the boathouse, across Clark's lot, to a lake. Clark had already orally agreed with Green to permit the digging of the channel across Clark's lot. Brown agreed to begin work on the boathouse on March 15, and to complete all the work before June 1. The total price of $10,000 was to be paid by Green in three installments: $2,500 on March 15; $2,500 when the boathouse was completed; $5,000 when Brown finished the digging of the channel.
Assume that Green tendered the $2,500 on March 15, and that Brown refused to accept it or to perform. In an action by Green against Brown for breach of contract, which of the following can Brown successfully use as a defense? I. The Clark-Green agreement permitting the digging of the channel across Clark's lot was not in writing. II. The Green-Brown agreement was not in writing.
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Neither I nor II
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When one party repudiates a contract, the innocent party may treat the repudiation as a breach or continue to perform under the contract and await the time of the agreed-upon performance. Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 211 (Tex.1999).
On March I, Green and Brown orally agreed that Brown would erect a boathouse on Green's lot and dig a channel from the boathouse, across Clark's lot, to a lake. Clark had already orally agreed with Green to permit the digging of the channel across Clark's lot. Brown agreed to begin work on the boathouse on March 15, and to complete all the work before June 1. The total price of $10,000 was to be paid by Green in three installments: $2,500 on March 15; $2,500 when the boathouse was completed; $5,000 when Brown finished the digging of the channel.
Assume that Green paid the $2,500 on March 15 and that Brown completed the boathouse according to specifications, but that Green then refused to pay the second installment and repudiated the contract. Assume further that the absence of a writing is not raised as a defense. Which of the following is (are) correct? I. Brown has a cause of action against Green and his damages will be $2,500 II. Brown can refuse to dig the channel and not be liable for breach of contract
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II only
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Any kind of contract may be considered broken ("breached") once one party unconditionally refuses to perform under the contract as promised, regardless of when performance is supposed to take place. This unconditional refusal is known as a "repudiation" of a contract.
Once one party to a contract indicates--either through words or actions--that it's not going to perform its contract obligations, the other party can immediately claim a breach of contract (failure to perform under the contract) and seek remedies such as payment. This is sometimes called an anticipatory breach of contract. Read on to learn more about the concepts of repudiation and anticipatory breach of contract.
When Does Repudiation Occur?
Courts usually recognize three types of repudiation when it comes to contract law:
A positive and unconditional refusal is made to the other party ("express repudiation"). The other party must tell you, in essence, "I'm not going through with the deal." It's not enough to make a qualified or ambiguous refusal. (For example, "Unless this drought breaks, I won't be able to deliver the apples.") The repudiation must be clear, straightforward, and directed at the other party. (For example, "I will not be delivering the apples as promised.")
An action makes it impossible for the other party to perform. When it comes to repudiation, actions speak as loudly as words. For example, let's say a couple was supposed to repay two loans from the profits of their business. Instead, the couple ran the business into the ground, incurring lots of other debts and making it impossible to pay back their original loans. Their reckless, voluntary actions counted as a repudiation of the original loan agreements.
The property that is the subject of the deal is transferred to someone else. If the contract is for the sale of property, repudiation occurs when one party transfers (or makes a deal to transfer) the property to a third party. For example, if you've contracted to buy a house and you learn that the other party has subsequently sold it to his brother, your sales contract has been repudiated (even if you never heard a word about it from the other party)
On March I, Green and Brown orally agreed that Brown would erect a boathouse on Green's lot and dig a channel from the boathouse, across Clark's lot, to a lake. Clark had already orally agreed with Green to permit the digging of the channel across Clark's lot. Brown agreed to begin work on the boathouse on March 15, and to complete all the work before June 1. The total price of $10,000 was to be paid by Green in three installments: $2,500 on March 15; $2,500 when the boathouse was completed; $5,000 when Brown finished the digging of the channel.
Assume that Green paid the $2,500 on March 15, that Brown completed the boathouse, that Green paid the second installment of $2,500, and that Brown completed the digging of the channel but not until July 1. Assume further that the absence of a writing is not raised as a defense. Which of the following is (are) correct? I. Green has a cause of action against Brown for breach of contract. II. Green is excused from paying the $5,000.
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I only
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a. Common law action of trespass for battery. Except in one particular, the conditions stated in this Section as necessary to make the actor liable are the same as those necessary to make a defendant liable under strict common law pleading in an action of trespass for battery. Under the rule stated in this Section, the actor's liability includes liability for offensive contacts which are intentionally caused, irrespective of whether they result directly or indirectly from the other's conduct, while the common law action of trespass for battery required the offensive contact to result directly from the actor's conduct.
b. In order that one may be liable under the rule stated in this Section, he must have done an act as that word is defined in § 2. Therefore, if a third person takes hold of the defendant's hand and with it slaps another's face, the only act is that of the third person. The defendant's hand is used merely as an instrument by which the third person accomplishes his purpose and, therefore, the third person rather than the defendant is liable for the offensive contact caused by the use of the latter's hand.
c. Meaning of “contact with another's person.” In order to make the actor liable under the rule stated in this Section, it is not necessary that he should bring any part of his own body in contact with another's person. It is enough that he intentionally cause his clothing or anything held or attached to him to come into such contact. So too, he is liable under the rule stated in this Section if he throws a substance, such as water, upon the other or if he sets a dog upon him. It is not necessary that the contact with the other's person be directly caused by some act of the actor. All that is necessary is that the actor intend to cause the other, directly or indirectly, to come in contact with a foreign substance in a manner which the other will reasonably regard as offensive. Thus, if the actor daubs with filth a towel which he expects another to use in wiping his face with the expectation that the other will smear his face with it and the other does so, the actor is liable as fully as though he had directly thrown the filth in the other's face or had otherwise smeared his face with it. So too, if the actor at a dignified social function, and for the purpose of making another appear ridiculous, pulls from under him a chair upon which he is about to sit, the actor is liable to the other under the rule stated in this Section.
nan
Customer. aged twenty, went into Store at approximately 6:45 p.m. to look at some suits that were on sale. The clerks were busy, and one of them told him that he should wait on himself. Customer selected three suits from a rack and went into the dressing room to try them on. Signs posted on the walls of Store state that closing time is 9:00 p.m.; however, because of a special awards banquet for employees, Store was closed at 7:00 p.m. on this day. The employees, in a hurry to get to the banquet. did not check the dressing rooms or turn off the lights before leaving. When Customer emerged from the dressing room a few minutes after 7:00 p.m., he was alone and locked in. Customer tried the front door, but it was secured on the outside by a bar and padlock, so he went to the rear door. Customer grabbed the door knob and vigorously shook the door. It did not open, but the activity setoff a mechanism that had been installed because of several recent thefts committed by persons who had hidden in the store until after closing time. The mechanism sprayed a chemical mist in Customer's face, causing him to become temporarily blind. The mechanism also activated an alarm carried by Store's employee, Watchman, who was just coming to work. Watchman unlocked the front door, ran into the store. and grabbed Customer. Customer, who was still unable to see, struck out at this person and hit a metal rack, injuring his hand. Watchman then identified himself, and Customer did the same. After assuring himself that Customer was telling the truth, Watchman allowed him to leave. if Customer is to prevail on a claim against Store based on battery from the use of the chemical spray. Customer must establish that
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the Pray mist was an offensive or harmful contact
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An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court, 35 Cal. 2d 109, 113-114 (Cal. 1950). An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract. The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above. Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations. No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.
Tortfeasor tortiously injured Victim in an auto accident. While Victim was consequently hospitalized in Hospital. Tortfeasor's liability insurer, Insurer, settled with Victim for S5,000. Victim gave Insurer a signed release and received a signed memorandum wherein Insurer promised to pay Victim $5,000 by check within thirty days. When Victim left Hospital two days later, Hospital demanded payment of his $4,00() stated bill. Victim thereupon gave Hospital his own negotiable promissory note for $4,000, payable to Hospital's order in thirty days, and also, as securitv. assigned to Hospital the Insurer settlement memorandum. Hospital promptly assigned for value the settlement memorandum and negotiated the note to Holder, who took the note as a holder in due course. Subsequently Victim misrepresented to Insurer that he had lost the settlement memorandum and needed another. Insurer issued another memorandum identical to the first, and Victim assigned it the ABC Furniture to secure a $5,000 credit sale contract. ABC immediately notified Insurer of this assignment. Later it was discovered that Hospital had mistakenly overbilled Victim by an amount of $1,000 and that Tortfeasor was an irresponsible minor.
If Victim starts an action against Insurer forty days after the insurance settlement agreement, can Victim recover?
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No because he has made at least one effective assignment of his claim against Insurer. and Insurer has notice thereof
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To prevail on a breach of contract claim in Massachusetts a plaintiff must
demonstrate that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result.
Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 46 N.E.3d 24, 39 (2016). If one of the parties to a contract assigns his contractual rights and obligations to a third party, that individual may enforce the contract. HRPT Advisors, Inc. v. MacDonald, Levine, Jenkins & Co., P.C., 43 Mass.App.Ct. 613, 686 N.E.2d 203, 209 (1997). If a party to a contract assigns the rights to a contract more than once, the first assignment will prevail over the second. Aetna Cas. & Sur. Co. v. Harvard Trust Co., 344 Mass. 160, 181 N.E.2d 673, 679 (1962) (“In Massachusetts, a prior assignee will take in preference to a later assignee ....”). Third party beneficiaries may also enforce contractual obligations if they can “show that they were intended beneficiaries of the contract ....” Spinner v. Nutt, 417 Mass. 549, 631 N.E.2d 542, 546 (1994).
Tortfeasor tortiously injured Victim in an auto accident. While Victim was consequently hospitalized in Hospital. Tortfeasor's liability insurer, Insurer, settled with Victim for S5,000. Victim gave Insurer a signed release and received a signed memorandum wherein Insurer promised to pay Victim $5,000 by check within thirty days. When Victim left Hospital two days later, Hospital demanded payment of his $4,00() stated bill. Victim thereupon gave Hospital his own negotiable promissory note for $4,000, payable to Hospital's order in thirty days, and also, as securitv. assigned to Hospital the Insurer settlement memorandum. Hospital promptly assigned for value the settlement memorandum and negotiated the note to Holder, who took the note as a holder in due course. Subsequently Victim misrepresented to Insurer that he had lost the settlement memorandum and needed another. Insurer issued another memorandum identical to the first, and Victim assigned it the ABC Furniture to secure a $5,000 credit sale contract. ABC immediately notified Insurer of this assignment. Later it was discovered that Hospital had mistakenly overbilled Victim by an amount of $1,000 and that Tortfeasor was an irresponsible minor.
In view of Tortfeasor's age and irresponsibility when Insurer issued his liability policy, can Holder and ABC Furniture recover on their assignments?
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Either Holder or ABC Funiture, depending on priority, can recover as assignee (or subassignee) of Victim's claim because the latter arose from Insurer's settlement agreement, the latter agreement not being vitiated by Tortfeasor's minority and irresponsibility when he obtained the policy.
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Under the void-for-vagueness doctrine, a statute is unconstitutionally vague so as to violate due process if it: “(1) does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or (2) fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the statute.” United States v. Lim, 444 F.3d 910, 915 (7th Cir.2006); Stephenson, 557 F.3d at 455–56. Such challenges are analyzed as-applied unless First Amendment interests are threatened, which is not the case here. Id. The defendants contend that even if the statute does not contain a purity requirement, there was no evidence in the record to show that the cocaine base was crack as opposed to freebase and therefore any such determination is arbitrary.
nan
The city of Newtown adopted an ordinance providing that street demonstrations involving more than 15 persons may not be held in commercial areas during "rush" hours. "Exceptions" may be made to the prohibition "upon 24-hour advance application to and approval by the police department." The ordinance also imposes sanctions on any person "who shall, without provocation, use to or of another, and in his presence, opprobrious words or abusive language tending to cause a breach of the peace." The ordinance has not yet had either judicial or administrative interpretation. Which of the following is the strongest argument for the unconstitutionality of both parts of the ordinance on their face?
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Laws regulating, by their terms, expressive conduct or speech may not be overbroad or unduly vague.
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To constitute a valid waiver of Fourth Amendment rights, a consent must be the intelligent relinquishment of a known right or privilege. Id. (quoting United States v. Payne, 429 F.2d 169 (9th Cir.1970)). Such a waiver cannot be conclusively presumed from a verbal expression of assent unless the court determines, from the totality of the circumstances, that the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld. Id. Knowledge of the right to refuse a search is one factor which indicates voluntariness. Id.
Crocker v. State, 989 N.E.2d 812, 820 (Ind. Ct. App. 2013)
While Defendant was in jail on a procuring charge, his landlord called the police because rent had not been paid and because he detected a disagreeable odor coming from Defendant's apartment into the hallways. The police officer who responded to the call knew that Defendant was in jail. He recognized the stench coming from Defendant's apartment as that of decomposing flesh and, without waiting to obtain a warrant and using the landlord's passkey, entered the apartment with the landlord's consent. The lease to these premises gave the landlord a right of entry, at any reasonable hour, for the purpose of making repairs. The police officer found a large trunk in the bedroom which seemed to be the source of the odor. Upon breaking it open, he found the remains of Rosette, Defendant's former mistress.
The landlord's consent to the police officer's search of Defendant's apartment is
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not a waiver of Defendant's Fourth Amendment rights because the landlord had neither actual nor apparent authority to permit the entry
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The standing inquiry consists of three elements: (1) the plaintiff must have personally suffered a “concrete and particularized ... actual or imminent” injury, (2) that is fairly traceable to the challenged actions of the defendant, and (3) there is a substantial likelihood the requested relief will remedy the alleged injury. Meyers v. JDC/Firethorne, Ltd., No. 17-0105, ––– S.W.3d ––––, ––––, 2018 WL 2749769, at *5 (Tex. June 8, 2018). Each party must establish standing to bring each of its claims, meaning courts assess standing “claim by claim.” Heckman, 369 S.W.3d at 150.
Lindig v. Pleasant Hill Rocky Cmty. Club, No. 03-17-00388-CV, 2018 WL 3447719, at *2 (Tex. App. July 18, 2018)
While Defendant was in jail on a procuring charge, his landlord called the police because rent had not been paid and because he detected a disagreeable odor coming from Defendant's apartment into the hallways. The police officer who responded to the call knew that Defendant was in jail. He recognized the stench coming from Defendant's apartment as that of decomposing flesh and, without waiting to obtain a warrant and using the landlord's passkey, entered the apartment with the landlord's consent. The lease to these premises gave the landlord a right of entry, at any reasonable hour, for the purpose of making repairs. The police officer found a large trunk in the bedroom which seemed to be the source of the odor. Upon breaking it open, he found the remains of Rosette, Defendant's former mistress.
If Defendant undertakes to challenge the search of his apartment, he has
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standing because he still has a sufficient interest in the apartment even while in jail
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In some jurisdictions, where the manner of distribution depends on the character of the property as real or personal, the proceeds of judicial sales of real property retain the character of real estate for purposes of distribution. However, even though the character of the property and of the sale would ordinarily require that the proceeds be converted to personalty, the doctrine of equitable conversion may not apply if the judgment or decree ordering the sale expressly provides that the property is to be sold as a realty.
Where the courts consider that the proceeds of a judicial sale of real property are to be treated as personalty for purposes of distribution, the conversion of the land from realty to personalty does not occur when the decree of sale is made, but the equitable conversion of the realty into personalty dates from the judicial confirmation of the sale.
Seller and Buyer execute an agreement for the sale of real property on September 1, 1971. The jurisdiction in which the property is located recognizes the principle of equitable conversion and has no statute pertinent to this problem.
Assume for this question only that Seller dies before closing and his will leaves his personal property to Perry and his real property to Rose. There being no breach of the agreement by either party, which of the following is correct'?
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Perry is entitled to the proceeds of the sale when it closes.
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To establish a claim for conversion, a plaintiff must prove that (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899 (Tex.App.–Austin 1997, writ denied).
Seller and Buyer execute an agreement for the sale of real property on September 1, 1971. The jurisdiction in which the property is located recognizes the principle of equitable conversion and has no statute pertinent to this problem.
Assume for this question only that Buyer dies before closing, there being no breach of the agreement by either party. Which of the following is appropriate in most jurisdictions?
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Buyer's heir may specifically enforce the agreement.
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In calculating the amount of the Bell & Howell claim, the court must determine what damages are available for breach of contract under Illinois law. “In any breach of contract case, the proper measure of damages is the amount that will place the non-breaching party in as satisfactory a position as it would have been had the contract been fully performed.” Med + Plus Neck and Back Pain Center, S.C. v. Noffsinger, 311 Ill.App.3d 853, 244 Ill.Dec. 712, 726 N.E.2d 687, 691 (2000). “The purpose of damages is to put the non-breaching party into the position he or she would have been in had the contract been performed, but not in a better position.” Walker v. Ridgeview Construction Co., Inc., 316 Ill.App.3d 592, 249 Ill.Dec. 746, 736 N.E.2d 1184, 1187 (2000).
Farquart had made a legally binding promise to furnish his son Junior and the latter's fiancee a house on their wedding day, planned for June 10, 1972. Pursuant to that promise, Farquart telephoned his old contractor-friend Sawtooth on May 1, 1971, and made the following oral agreementeach making full and accurate written notes thereof: Sawtooth was to cut 30 trees into fireplace logs from a specified portion of a certain one-acre plot owned by Farquart, and Farquart was to pay therefor S20 per tree. Sawtooth agreed further to build a house ,n the plot conforming to the specifications of Plan OP5 published by Builders, Inc. for a construction price of Sl8,000. Farquart agreed to make payments of $2,000 on the first of every month for nine months beginning August I, 1971, upon monthly presentation of a certificate by Builders. Inc. that the specifications of Plan OP5 were being met. Sawtooth delivered the cut logs to Farquart in July 1971, when he also began building the house. Farquart made three S2.,000 payments forthe work done in July, August, and September 1971, without requiring a certificate. Sawtooth worked through October, but no work was done from November 1, 1971. to the end of February 1972. because of bad weather: and Farquart made no payments during that period. Sawtooth did not object. On March 1, 1972, Sawtooth demanded payment of $2,000 but Farquart refused on the grounds that no construction work had been done for four months and Builders had issued no certificate. Sawtooth thereupon abandoned work and repudiated the agreement.
Assuming that Sawtooth committed a total breach on March 1. 1972, what would be the probable measure of Far-quart's damages in an action against Sawtooth for breach of contract?
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What it would cost to get the house completed by another contractor, minus installments not yet paid to Sawtooth
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A party injured by a breach of contract may recover consequential damages. Consequential damages may be awarded when the non-breaching party's loss flows naturally and probably from the breach and was contemplated by the parties when the contract was made. The party seeking damages must prove by a preponderance of the evidence that the breach was the cause in fact of its loss. This generally limits consequential damages to reasonably foreseeable economic losses.
Farquart had made a legally binding promise to furnish his son Junior and the latter's fiancee a house on their wedding day, planned for June 10, 1972. Pursuant to that promise, Farquart telephoned his old contractor-friend Sawtooth on May 1, 1971, and made the following oral agreementeach making full and accurate written notes thereof: Sawtooth was to cut 30 trees into fireplace logs from a specified portion of a certain one-acre plot owned by Farquart, and Farquart was to pay therefor S20 per tree. Sawtooth agreed further to build a house ,n the plot conforming to the specifications of Plan OP5 published by Builders, Inc. for a construction price of Sl8,000. Farquart agreed to make payments of $2,000 on the first of every month for nine months beginning August I, 1971, upon monthly presentation of a certificate by Builders. Inc. that the specifications of Plan OP5 were being met. Sawtooth delivered the cut logs to Farquart in July 1971, when he also began building the house. Farquart made three S2.,000 payments forthe work done in July, August, and September 1971, without requiring a certificate. Sawtooth worked through October, but no work was done from November 1, 1971. to the end of February 1972. because of bad weather: and Farquart made no payments during that period. Sawtooth did not object. On March 1, 1972, Sawtooth demanded payment of $2,000 but Farquart refused on the grounds that no construction work had been done for four months and Builders had issued no certificate. Sawtooth thereupon abandoned work and repudiated the agreement.
Assuming that Sawtooth committed a total breach on March 1, 1972, and assuming further that he was aware when the agreement was made of the purpose for which Farquart wanted the completed house, which of the following, if true, would best support Farquart's claim for consequential damages on account of delay beyond June 10, 1972, in getting the house finished'?
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Farquart was put to additional expense in providing Junior and his bride, married on June 10, 1972, with temporary housing.
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An implied waiver may also arise where the party against whom waiver is asserted pursues a course of action or acts in such a way that demonstrates his intention to waive a right or is inconsistent with any intention other than waiving the right. Hahn v. County of Kane, 2013 IL App (2d) 120660, ¶ 11, 372 Ill.Dec. 66, 991 N.E.2d 373. However, “we must point out that ‘equitable estoppel’ and ‘waiver’ are two distinct concepts, though they have similarities and are sometimes used interchangeably. A waiver is a voluntary relinquishment of a known right, claim or privilege [citation], whereas an equitable estoppel may arise even though there was no intention on the part of the party estopped to relinquish any existing right.” Vaughn v. Speaker, 126 Ill.2d 150, 161, 127 Ill.Dec. 803, 533 N.E.2d 885 (1988). Accordingly, we will confine our discussion to whether Plaintiff has proved by clear and unequivocal evidence that Defendant misrepresented or concealed material facts.
Farquart had made a legally binding promise to furnish his son Junior and the latter's fiancee a house on their wedding day, planned for June 10, 1972. Pursuant to that promise, Farquart telephoned his old contractor-friend Sawtooth on May 1, 1971, and made the following oral agreementeach making full and accurate written notes thereof: Sawtooth was to cut 30 trees into fireplace logs from a specified portion of a certain one-acre plot owned by Farquart, and Farquart was to pay therefor S20 per tree. Sawtooth agreed further to build a house ,n the plot conforming to the specifications of Plan OP5 published by Builders, Inc. for a construction price of Sl8,000. Farquart agreed to make payments of $2,000 on the first of every month for nine months beginning August I, 1971, upon monthly presentation of a certificate by Builders. Inc. that the specifications of Plan OP5 were being met. Sawtooth delivered the cut logs to Farquart in July 1971, when he also began building the house. Farquart made three S2.,000 payments forthe work done in July, August, and September 1971, without requiring a certificate. Sawtooth worked through October, but no work was done from November 1, 1971. to the end of February 1972. because of bad weather: and Farquart made no payments during that period. Sawtooth did not object. On March 1, 1972, Sawtooth demanded payment of $2,000 but Farquart refused on the grounds that no construction work had been done for four months and Builders had issued no certificate. Sawtooth thereupon abandoned work and repudiated the agreement.
What was the probable legal effect of the following? I. Sawtooth's failure to object to Farquart's making no payments on November 1, December I , January 1, and February I II. Farquart's making payments in August through October without requiring a certificate from Builders.
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Waiver of delay in payment as to I and revocable waiver as to II
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An activity is inherently dangerous if the “danger inheres in the performance of the work,” such that “in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.”
nan
Construction Company contracted to build a laundry for Wash Company on the latter's vacant lot in a residential area. As a part of its work, Construction Company dug a trench from the partially completed laundry to the edge of a public sidewalk: waterlines were to be installed in the trench. Because of the contour of the land, the trench was dug to a depth ranging from 7 to 9 feet. Construction Company did not place any barriers around the trench and permitted it to lie open for almost a week while waiting for the delivery of water pipes. This was known to Wash Company, but it raised no objection. During the time the trench was open, a series of heavy rains fell, causing 5 feet of surface water to gather in the bottom of the trench. While this condition existed, 5-year-old Tommy, who was playing on the vacant lot with friends, stumbled and fell into the trench. Robert, an adult passerby, saw this and immediately lowered himself into the trench to rescue Tommy. However, his doing so caused the rain-soaked walls of the trench to collapse, killing both him and Tommy. In a claim for wrongful death by Tommy's administrator against Construction Company, the most likely result is that the plaintiff will
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recover, because the defendant left the open trench unprotected
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Kansas courts discussed assumption of risk as early as 1898. See Greef Bros. v. Brown, 7 Kan.App. 394, 51 P. 926 (1898). But in those early cases it was viewed as a “species of contributory negligence.” Greef Bros., 7 Kan.App. at 398, 51 P. 926 (discussing relationship between assumption of risk and contributory negligence). Contributory negligence is defined as “conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is the legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff's harm.” Guerra, 204 Kan. at 313, 461 P.2d 737. Over time, however, this court recognized distinctions between the two doctrines, with contributory negligence seen as arising from tort law, while assumption *306 of risk arose from an implied contract. Guerra, 204 Kan. at 313, 461 P.2d 737.
nan
Doctor, a licensed physician, resided in her own home. The street in front of the home had a gradual slope. Doctor's garage was on the street level, with a driveway entrance from the street. At two in the morning Doctor received an emergency call. She dressed and went to the garage to get her car and found a car parked in front of her driveway. That car was occupied by Parker, who, while intoxicated, had driven to that place and now was in a drunken stupor in the front seat. Unable to rouse Parker, Doctor pushed him into the passenger's side of the front seat and got in on the driver's side. Doctor released the brake and coasted the car down the street, planning to pull into a parking space that was open. When Doctor attempted to stop the car, the brakes failed to work, and the car crashed into the wall of Owner's home, damaging Owner's home and Parker's car and injuring Doctor and Parker. Subsequent examination of the car disclosed that the brake linings were badly worn. A state statute prohibits the operation of a motor vehicle unless the brakes are capable of stopping the vehicle within specified distances at specified speeds. The brakes on Parker's car were incapable of stopping the vehicle within the limits required by the statute. Another state statute makes it a criminal offense to be intoxicated while driving a motor vehicle. If Parker asserts a claim against Doctor for his injuries, Parker will probably
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not recover, because his brakes were defective
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‘Encouragement,’ for the purpose of determining accomplice liability, is the equivalent of conduct that by any means countenances or approves the criminal actions of others.” Id.
Bill and Chuck hated Vic and agreed to start a fight with Vic and, if the opportunity arose, to kill him. Bill and Chuck met Vic in the street outside a bar and began to push him around. Ray, Sam, and Tom. who also hated Vic, stopped to watch. Ray threw Bill a knife. Sam told Bill, ''Kill him." Tom. who made no move and said nothing, hoped that Bill would kill Vic with the knife. Chuck held Vic while Bill stabbed and killed him.
On a charge of murdering Vic, Sam is
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guilty. because. with the intent to have Bill kill Vic. he shouted encouragement to Bill
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While mere presence at a crime scene, considered alone or in combination with a refusal to interfere, is insufficient to support a conviction, the broad concept of ‘aiding and abetting’ plainly encompasses acts that could be construed as ‘encouragement’ or its derivation. Mere encouragement is enough. Encouragement *442 is the equivalent of conduct that by any means countenances or approves the criminal actions of another. ‘Countenances or approves' includes encouraging or exciting [a criminal act] by words, gestures, looks, or signs. In fact, associating with those that committed the crime before, during, or after its occurrence, acting as part of a show of force in the commission of the crime, attempting flight from the crime scene, or failing to assist the victim or seek medical help are all factors which may be considered. (Internal quotations and citations omitted).
Bill and Chuck hated Vic and agreed to start a fight with Vic and, if the opportunity arose, to kill him. Bill and Chuck met Vic in the street outside a bar and began to push him around. Ray, Sam, and Tom. who also hated Vic, stopped to watch. Ray threw Bill a knife. Sam told Bill, ''Kill him." Tom. who made no move and said nothing, hoped that Bill would kill Vic with the knife. Chuck held Vic while Bill stabbed and killed him.
On a charge of murdering Vic, Tom is
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not guilty, because mere presence, coupled with silent approval and intent, is not sufficient
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People’s sincere religious beliefs may occasionally conflict with the law. Usually, it’s the religious beliefs that must yield, as the law rarely accepts them as a defense to criminal charges. If a government has decided that certain activity is illegal, then it’s usually no excuse to say, “I did it because of my religious beliefs.”
nan
Leonard A as the high priest of a small cult of Satan worshippers living in NewArcadia. Asa part of the practice of their religious beliefs, a cat w.as required to be sacrificed to the glory of Satan after a live dissection of the animal in w which it endured frightful pain. In the course of such a religious sacrifice. Leonard was arrested on the complaint of the local Humane Society and charged under a statute punishing cruelty to animals. On appeal, a conviction of Leonard probably will be
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sustained on the grounds that sincere religious belief is not an adequate defense on these facts
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Since the power to appropriate belongs to Congress, see Richmond; Cincinnati Soap, 301 U.S. at 321, 57 S.Ct. 764, Congress must make the decision whether to allow or deny a federal instrumentality appropriated funds. Congress may impose the restriction that the instrumentality be entirely self-supporting, without any appropriated funds, in which case it is a NAFI. See, e.g., Core Concepts of Florida, Inc. v. United States, 327 F.3d 1331 (Fed.Cir.2003) (Federal Prison Industries is a NAFI); Furash & Co. v. United States, 252 F.3d 1336 (Fed.Cir.2001) (Federal Housing Finance Board is a NAFI). Or, Congress may direct an entity to be self sufficient, but leave open the possibility that appropriations may be applied. See, e.g., L'Enfant Plaza, 668 F.2d at 1212 (financial self-sufficiency does not establish NAFI where historically appropriations were received and are allowed under the statute for the future); Slattery v. United States, 53 Fed.Cl. 258 (Fed.Cl.2002) (FDIC Bank Insurance Fund is not a NAFI because Congress expressed willingness to appropriate funds, although it never has). Whether an agency or agency fund is a NAFI is determined by looking at the entirety of its financial wellspring, not by parsing its revenue stream to determine which moneys came from the Treasury and which from customer payments. Indeed, an entity is not treated as a NAFI even if all of its money flows from its own activities, and even if appropriated funds have never been used, so long as “under the agency's authorizing legislation Congress could appropriate *410 funds if necessary.”
nan
An appropriations act passed by Congress over the President's veto directs that one billion dollars ''shall be spent by the federal government for the development of a new military weapons system, which is available only from the Arms Corporation. On the order of the President. the Secretary of Defense refuses to authorize a contract for purchase of the weapons system. The Arms Corporation sues the Secretary of Defense alleging an unlawful withholding of these federal funds. The strongest constitutional argument for the Arms Corporation is that
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Congress' power to appropriate funds includes the power to require that the funds will be spent as directed
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