American Contract Law for a Global Age, 2017a

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TOWN OF FAIRFIELD v. D’ADDARIO Supreme Court of Connecticut 149 Conn. 358, 179 A.2d 826 (1961) BALDWIN, C.J. The town of Fairfield brought this action against F. Francis D’Addario, doing business as The D’Addario Construction Company, to recover $5,750, with interest and attorneys’ fees, expended by the town in the settlement of an action for personal injuries brought against it by Edmund Kant. The material findings of the trial court can be stated in summary as follows: On February 10, 1951, the town entered into a contract with D’Addario to construct a sewerage system. The contract provided that D’Addario would indemnify the town against loss or damage arising out of any cause connected with the contract, save the town harmless from all claims and liability for any loss, damage or injury sustained by any person by reason of, or in any way arising out of, the contract, and defend any suit brought against the town by reason of, or connected with, the work or materials furnished. 5 On May 11, 1953, Edmund Kant brought an action against the town to recover for personal injuries allegedly suffered by him on March 21, 1953, because of a defective highway in an area where D’Addario had been working. Kant alleged that the roadway was broken and uneven and contained a deep hole and depression, and also that a manhole cover was elevated above the road surface. A police investigation of the alleged occurrence was completed and a report made to the town counsel on or about May 14, 1953. This report called attention to D’Addario’s operations on the highway and stated that the manhole referred to in Kant’s complaint had been constructed by D’Addario. On June 2, 1953, the town counsel entered an appearance in court in Kant’s action. The town failed to give D’Addario any notice of Kant’s claim or of his suit until June 22, 1956, when the town requested that D’Addario assume the defense of Kant’s action and hold the town harmless from all liability therefor. On several occasions thereafter, up to February 8, 1957, this request was repeated, but D’Addario refused. On February 8, 1957, the town stipulated with Kant that in his action a judgment of $5750 would be entered in his favor. 5 [By the court:] “The Contractor shall pay and make good all losses or damages arising out of any cause connected with the Contract and shall indemnify and save harmless the Municipality from any and all claims and any and all liability or responsibility of every nature and kind for any loss, damage or injury which any person or persons may sustain or suffer by reason of or in anywise arising out of the Contract and shall defend every suit of any nature which may be brought against the Municipality or any of its officers or agents, by reason of, or connected with the work or materials furnished under the Contract and shall pay all costs and expenses of every kind, character, and nature whatsoever, accruing upon or arising out of the Contract.” ______________________________________________________________________________ 394 CHAPTER VI: TERMS AND INTERPRETATION
On these facts, the court concluded that the Kant action arose out of the contract between the town and D’Addario, that D’Addario was prejudiced by reason of the fact that the town did not notify him of the Kant action until three years had elapsed, and that the notice given then was not given within a reasonable time. Judgment was rendered for D’Addario, and the town has appealed. The crucial questions in the case are (1) whether the town was required, under the terms of the indemnity provision, to give any notice of Kant’s action to D’Addario, and (2) whether, if it was, the notice given was timely. The agreement contains no specific language requiring the town to give D’Addario notice of any action brought against it which it might claim arose out of the contract. But the parties could not have contemplated otherwise than that such notice would be given. The construction of the sewerage system was a broad undertaking necessitating the disturbance of highways for which the town was responsible. If the town was to have the full measure of protection which the indemnity provision afforded and D’Addario was to have the opportunity of effectively discharging his part of the obligation, notice to him was indispensable. “Conditions upon which the right to require performance of a contract obligation depends may often be implied where not to do so would defeat the clear intention of the parties and the object of the contract.” Rifkin v. Safenovitz, 415, 40 A.2d 188 (Conn. 1944). The circumstances under which the contract was made, as well as all the other provisions of the contract, are determinative factors in ascertaining intent. Avco Manufacturing. Corp. v. Connelly, 140 A.2d 479 (Conn. 1958). The indemnity provision of this contract contemplated that suits might be brought against the town for highway defects which it could claim were caused by D’Addario. The town would have peculiar knowledge of these suits and therefore was obligated to notify D’Addario of them. It can be fairly implied that the giving of reasonable notice was a condition precedent to D’Addario’s duty to defend and indemnify. 3 SAMUEL WILLISTON, THE LAW OF CONTRACTS § 887B (rev. ed. 1936). Furthermore, when a party to a contract assumes an express obligation to do certain things—in this case, to defend and indemnify the plaintiff—the law implies a corresponding obligation on the other party to allow him all reasonable opportunity to perform. Rockwell v. New Departure Manufacturing Co., 128 A. 302 (Conn. 1926). The cooperation required may be, as in the instant case, the giving of timely notice. 3A ARTHUR L. CORBIN, CORBIN ON CONTRACTS 386 (1950); 3 WILLISTON, supra, § 887B. Kant sued the town on May 11, 1953. The town did not inform D’Addario of the suit until June 22, 1956. He was entitled to employ his own counsel to investigate the facts and prepare his defense. He was not, as the town claims, required to accept a report, made to it three years before, of an investigation by its police department. An independent investigation by D’Addario three years after the occurrence would have been of little, if any, use in the defense against Kant’s claims as to either liability or ______________________________________________________________________________ UNIT 19: CONDITIONS 395
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Notices This is the first edition o
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About CALI eLangdell Press The Cent
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Unit 19: Conditions ...............
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hired Corleone family thugs 4 or an
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described herein, and agrees to fre
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6. MARY BETH WHITEHEAD, Surrogate,
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Surrogate and WILLIAM STERN, Natura
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10. Consider paragraph 5. Should th
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The two court opinions that follow
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Venue Venue is a concept of place
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Their first child, Ryan, was born o
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Subsequent to entering into the sur
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The sixth and final argument sugges
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It is argued by amicus that the $ 1
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no stated public policy on surrogac
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IN RE BABY M Supreme Court of New J
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adoption; the sole purpose of the c
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The surrogacy contract violates the
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Problems Donald Donor is a single,
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An Introduction to CONTRACT FORMATI
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particular obligation? In Europe, i
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The evidence is undisputed that pla
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After some negotiation a price of $
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The answer of A.H. Zehmer admitted
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no, that is beer and liquor talking
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on the Zehmers as well as on himsel
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offer and of the reward and its sub
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your professor. You will come acros
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car title you’re holding there. I
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In the modern world, the question o
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pair of sunglasses. The drumroll th
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This letter was apparently sent onw
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Because these cases generally invol
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teenager’s schoolmates gape in ad
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Review Question 3. Note how Judge W
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cash in ten days,” it must be dee
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“Before a contract can be complet
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for the purpose of doing the work a
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accidentally being bound to unwante
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Here, we have a counter-offer. The
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parties.” Metropolitan Sports Fac
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court. See Minn. R. Civ. App. P. 10
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Thus, it clearly appears that the d
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with distribution. The parties ulti
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all essential terms. See, e.g., Sit
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Enclosed, we beg to hand you contra
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to call for an acceptance particula
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than identify himself, Dealer says,
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offer.” More often, they nod, sha
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The next attack will be my end, I a
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from all the facts and circumstance
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Notice to the agent, within the sco
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2. Written approval by United State
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contrary in the offer, the acceptan
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HOBBS v. MASSASOIT WHIP CO. Supreme
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stranger may impose a duty upon ano
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contract in this case come into exi
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An Introduction to CONSIDERATION Th
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and you are free to change your min
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Ridge Runner that she lacked the pr
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We conclude that the territory enco
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He further answered, that it was gi
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This action was brought upon an all
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consideration does in fact benefit
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Review Question 5. The promisors in
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The distinction between such a cond
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Vincent refuses. Fritz eventually s
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enefit was money received, the subs
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they stopped work in a body, and de
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supervise this building. Under the
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The day before trial the plaintiffs
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General rules of law established fo
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For the foregoing reasons we are al
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WEBB v. McGOWIN Court of Appeals of
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100 P. 631 (Kan. 1909); Edson v. Po
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McGowin’s adult child, would that
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efuses, saying, “We had a deal.
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Giles had no right to use it. But t
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BLICESTER: That’s crazy. JUDGE: N
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A. She took the piece of paper and
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According to the undisputed proof,
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We recognize that upon different fa
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was discussed with compensation to
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CONRAD v. FIELDS Court of Appeals o
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her job at Qwest and enroll in law
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Seth Wyman’s estranged son Levi i
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An Introduction to ALTERNATIVE REGI
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consistency. Some provisions have p
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TOUSLEY-BIXLER CONSTRUCTION CO. v.
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of goods within this Article whethe
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differently from other contracts? F
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nine units was delivered and paid f
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think they have struck a deal.” Q
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more sense for contract formation t
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COMMERCIAL CODE § 2-206:12 (3D ED.
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face of which appears the notation,
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Problem 10.3 On June 1, the sales d
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except for personal use. If, howeve
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[T]he plain reading of the statute
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not lubricated in any way. Without
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we also note that Best Bolt’s vic
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(c) are fit for the ordinary purpos
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This purchase order represents the
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provision would cause no “surpris
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FLENDER CORPORATION v. TIPPINS INTE
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well that the reservations each par
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The alternate approach, recognized
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(a) Is Ivy League University a “m
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and ratified a treaty called the Un
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(2) The fact that the parties have
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e. Manufacturer in Texas contracts
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an authorized distributor of Defend
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undisputed that each of these alleg
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Treaty Text Note. Read Articles 18,
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*4 (S.D. Ohio Mar. 26, 2009); see a
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perform a substantial part of his o
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shall be settled by binding arbitra
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An Introduction to CONTRACT DEFENSE
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which extended even to being able t
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Dickerson, 72 Ala. 318 (1882). In t
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loss from the transaction, includin
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this definition. Whether other area
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ORTELERE v. TEACHERS’ RETIREMENT
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medicine, this physician “judged
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The avoidance of duties under an ag
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7. What is my total service credit?
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Review Question 5. In McGovern v. C
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will pay the full listed price of $
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endeavoured to be upheld by Perjury
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Y Contracts that cannot be performe
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you think the consideration doctrin
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NICKELS, J., dissenting. I disagree
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contracts. What is the real purpose
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At the ensuing trial, defendant den
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There may be cases in which it woul
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professional. Things were really ge
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GUENTHER v. AMER-TEX CONSTRUCTION C
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(b) Subsection (a) of this section
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Problem 14.3 Van der Rohe USA, Inc.
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sold, the terms of the sale, the na
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the judgment of a vulnerable party.
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The first issue is whether the labe
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some point or on some occasion it w
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As a matter of law, based on the fa
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or, more particularly, in cases suc
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“deprived Loral of its free will.
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As to mistake, the amended complain
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In Weger v. Rocha, 32 P.2d 417 (Cal
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I had brought back the topaz, and h
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May 5, 1886, plaintiff went out to
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arren cow is substantially a differ
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prior to the sale was Buyer aware t
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Against Public Policy. In many situ
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HANKS v. POWDER RIDGE RESTAURANT CO
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interest adversely, and identified
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illogical, in these circumstances,
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_____________________ Review Questi
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construed against the employer). Th
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acquired by virtue of effort and ex
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_____________________ Review Questi
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Mere inadequacy of consideration wi
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District of Columbia Court of Appea
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In determining reasonableness or fa
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Problems Problem 16.1 The Californi
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position to all of his patients (or
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An Introduction to TERMS AND INTERP
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contract itself. Thus written docum
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consideration of the simultaneous a
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the contract on the basis of which
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Page 354 and 355: understandings or agreements.” 3
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Page 360 and 361: Article 8 UNITED NATIONS CONVENTION
Page 362 and 363: contracts or that parol evidence re
Page 364 and 365: percent (50%) protein, as tested on
Page 366 and 367: get the deal they intended, and the
Page 368 and 369: Cases and Materials W.W.W. ASSOCIAT
Page 370 and 371: do so because of some identified am
Page 372 and 373: The truth is that whatever virtue a
Page 374 and 375: Absent strong public policy conside
Page 376 and 377: FRIGALIMENT IMPORTING CO. v. B.N.S.
Page 378 and 379: persuasive if sustained by the reco
Page 380 and 381: and there is force in defendant’s
Page 382 and 383: RANDOM HOUSE, INC. v. ROSETTA BOOKS
Page 384 and 385: language of the grant was broad, en
Page 386 and 387: F.3d at 1095, would conclude that t
Page 388 and 389: When Hurricane Rubin strikes the lo
Page 390 and 391: the business. The contract was sile
Page 392 and 393: party argues ambiguity), the loan f
Page 394 and 395: accordance with the terms of this c
Page 396 and 397: of the advance payments, or the num
Page 398 and 399: imbibe alcoholic beverages and stil
Page 400 and 401: significant satisfied requirement o
Page 404 and 405: damages. The notice of Kant’s act
Page 406 and 407: who had turned down lucrative offer
Page 408 and 409: were to suggest some express provis
Page 410 and 411: notice of ninety days. The plaintif
Page 412 and 413: Review Question 2. What was Judge C
Page 414 and 415: exercising discretion under the con
Page 416 and 417: NANAKULI PAVING AND ROCK CO. v. SHE
Page 418 and 419: § 490:1-102(2)(b). The drafters of
Page 420 and 421: trade existed in Hawaii in 1969 and
Page 422 and 423: 1978) (unpublished opinion) (holdin
Page 424 and 425: Plaintiff does not contest its stat
Page 426 and 427: product. The concept of “merchant
Page 428 and 429: discovery by defendant of the defec
Page 430 and 431: Unfortunately, Plumber’s work doe
Page 432 and 433: An Introduction to PERFORMANCE AND
Page 434 and 435: ___________________________________
Page 436 and 437: doctrine, so that close-enough perf
Page 438 and 439: the number of joists used in all th
Page 440 and 441: JACOB & YOUNGS, INC. v. KENT Court
Page 442 and 443: transgressor must accept the penalt
Page 444 and 445: was for requiring this kind of pipe
Page 446 and 447: The evidence is undisputed that the
Page 448 and 449: eing a new roof. We are not prepare
Page 450 and 451: This case is simple if the perfect
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yacht remained located at SIYS’ f
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happens by mere operation of law; s
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Problems Problem 21.1 Actor is a ve
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processor for the same price as the
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venue. Under Paradine v. Jane, this
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At trial, the court allowed IH’s
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In order for a supervening event to
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The court interpreted this passage
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economic circumstances sufficiently
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A cancellation order given by her o
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e entitled to judgment. They certai
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performance is excused when unfores
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caused to communications and transp
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Following the closing of the above-
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performance. 407 East 61st Garage,
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Canal, across the Mediterranean thr
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An Introduction to REMEDIES We now
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multiplication and (very rarely) di
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It was also erroneous and misleadin
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and we turn to the question of whet
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testified that the total gas, oil,
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BRANDEIS MACHINERY & SUPPLY CO., LL
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PEEVYHOUSE v. GARLAND COAL & MINING
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explanation as to why a measure of
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work; however, where the contract p
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clear and unambiguous and the parti
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pool contractor to finish the pool
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Nevertheless, the English courts he
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perform the work. As Lee failed to
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UNITED STATES ex rel. COASTAL STEEL
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emanded for those findings. When th
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the substance is that the plaintiff
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the agreement would continue on a m
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Review Question 7. Note the paralle
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product that would be fully functio
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car to the Country Music Museum for
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Restatement (Second) of Contracts s
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Harrahs brings the instant action a
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contest payment for same if constru
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This is in accord with the earlier
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Defendant’s sole defense to this
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particular. Certainly, none of the
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sustained where, from the nature of
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ut will be happy to try to help in
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the full $7,500 price of admission
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Problem 25.2 Mina is a second-year
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other types of specific performance
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imposed as the remedy for breach of
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certainty, then S&M should be compe
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There is simply no requirement in t
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“other proper circumstances” th
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fence plaintiff erected to discoura
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y no means certain, at the time of
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cannot use that method of self-help
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contract price of $533,000) that La
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teacher resigned at the beginning,
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eaching its lease with Perez by the
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An Introduction to CONTRACT NONPART
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fraud, mistake, and illegality. If
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may be the diversity of opinion els
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given him by the will for a particu
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since Lawrence v. Fox in a desire t
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workers’ compensation benefits),
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to divide a lawyer’s loyalty betw
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Review Question 9. Lawyers do many
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Problems Problem 27.1 Hank and Hild
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interested in jumping into such a b
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limitations barred the claims. She
Page 602 and 603:
assigned their claim to recover the
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application to this contract as it
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A breach of contract has been defin
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moved to Arizona and had no further
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It is evident from the express lang
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contracted to assume, and the assig
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March 1 for the conveyance of Purpl
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