Business Law Chapter 21 Homework Christi 2004 Pet Denied And Unless The

Chapter 21

Performance and Breach of

Sales and Lease Contracts

Case 21.1

352 N.Y.S.2d 784

76 Misc.2d 1080

MAPLE FARMS INC., Plaintiff,

v.

CITY SCHOOL DISTRICT OF the CITY OF ELMIRA, New York, Defendant.

$6.73 cwt. in 1969 to a high of $7.58 cwt. in 1972, or 12%, with fluctuation within a calendar year ranging from 1% To 4.5%. The

plaintiff agreed to supply milk to the defendant for the school year 1973-1974 by agreement of June 15, 1973 at a price of $.0759

per half pint, at which time the mandated price of raw milk was $8.03 cwt.

By November of 1973 the price of raw milk had risen to $9.31 cwt. and by December 1973 to $9.89 cwt., an increase of 23% Over

“s 454. DEFINITION OF IMPOSSIBILITY.

In the Restatement of this Subject impossibility means not only strict impossibility but impracticability because of extreme and

unreasonable difficulty, expense, injury or loss involved.’ Performance has been excused at common law where performance has

become illegal, Boer v. Garcia, 240 N.Y. 9, 147 N.E. 231; Matter of Kramer & Uchitelle, Inc., 288 N.Y. 467, 43 N.E.2d 493; Labaree

“(4) “A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at

an excessive and unreasonable cost.’ (1 Beach on Contr. s 216.) We do not mean to intimate that the defendants could excuse

themselves by showing the existence of conditions which would make the performance of their obligation more expensive than

they had anticipated, or which would entail a loss upon them. But, where the difference in cost is so great as here, and has the

effect, as found, of making performance impracticable, the situation is not different from that of a total absence of earth and gravel.’

CHAPTER 21: PERFORMANCE AND BREACH OF SALES AND LEASE CONTRACTS 361

regulation or order whether or not it later proves to be invalid.’ The Official Comment, Number “3′ to that section points out that the

test of impracticability is to be judged by commercial standards. Official Comment Number “4′ states:

“Increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which alters the

essential nature of the performance. Neither is a rise or a collapse in the market in itself a justification, for that is exactly the type of

to go around Africa to deliver its cargo of wheat. The plaintiff sought to recover the increased expense from the defendant. The

court found that shipping dangers in the Suez Canal area could have been anticipated; that the risk should be allocated to the

plaintiff and that the increased cost was not of such magnitude to say that it was not within the accepted degree of risk. The

doctrine enunciated by Uniform Commercial Code, s 2-615 was explained by the court, 363 F.2d at page 315:

“The doctrine ultimately represents the evershifting line, drawn by courts hopefully responsive to commercial practices and mores,

Russia, poor crops and general market conditions which were unexpected contingencies, then the question of allocation of risk

must be met.

Here they very purpose of the contract was to guard against fluctuation of price of half pints of milk as a basis for the school

budget. Surely had the price of raw milk fallen substantially, the defendant could not be excused from performance. We can

reasonably assume that the plaintiff had to be aware of escalating inflation. It is chargeable with knowledge of the substantial

would be 10.4% Greater than the bid price. The percentage would be 8.7% Without the increased transportation cost. There is no

precise point, though such could conceivably be reached, at which an increase in price of raw goods above the norm would be so

disproportionate to the risk assumed as to amount to “impracticality’ in a commercial sense.

However, we cannot say on these facts that the increase here has reached the point of “impracticality’ in performance of this

contract in light of the risks that we find were assumed by the plaintiff. The plaintiff also seeks a declaratory judgment that the

Case 21.2

Tex.App.-Amarillo,2010.

Romero v. Scoggin-Dickey Chevrolet-Buick, Inc.

Not Reported in S.W.3d, 2010 WL 456910 (Tex.App.-Amarillo)

MEMORANDUM OPINION

Court of Appeals of Texas,

Amarillo,

Panel C.

Jessie R. ROMERO, Appellant

v.

SCOGGIN-DICKEY CHEVROLET-BUICK, INC., Appellee.

No. 07-09-0086-CV.

Background

On December 23, 2006, Romero went to the Scoggin-Dickey dealership in Lubbock, Texas, and sought to purchase a

2006 Silverado pickup from Fred Morales. Romero proposed to purchase the pickup by assigning the dealership the

factory rebates, supplying two trade-in vehicles (a 2003 Mitsubishi Montero SP and a 2002 Chevrolet Silverado

pickup), and paying the cash difference. At the time of the negotiations, Romero did not have the proposed trade-in

vehicles on the lot for inspection by Scoggin-Dickey.

FN2. The value of the Montero was estimated at $8,000 and the value of the 2002 Silverado pickup was

estimated at $7,000. The negotiated value of the trade-in vehicles represented 68.5% of the total purchase

price of the 2006 Silverado pickup and 79.4% of the total purchase price less rebates.

FN3. Romero, a former car dealer with thirty years experience, testified that, at the time the contract order

was executed, he represented to Scoggin-Dickey that the two vehicles were an even trade for the new 2006

$1300. Tom Hayes, owner of Hayes Motor Company, testified the condition of the 2002 pickup was

“extremely rough” and “had been hit hard.” Hayes testified the Montero’s condition was “actually rougher than

the pickup” and had been rolled. He also estimated neither vehicle had any value, commercial, or otherwise.

Following a one-day bench trial, the trial court concluded, as a matter of law, that Scoggin-Dickey had a right to

The trial court filed its judgment ordering Scoggin-Dickey to pay Romero $4,133.52 (his original down payment less

allowable expenses), $330.00 in attorney’s fees and court costs. Romero was ordered to remove the two trade-in

vehicles from Scoggin-Dickey’s lot within thirty days of the judgment. Thereafter, Romero filed this appeal.

Discussion

By a single issue, Romero asserts the trial court erred in its finding that Scoggin-Dickey had a right to inspect and

reject the trade-in vehicles after the contract order had been executed. In support, Romero argues that: (1) Scoggin-

Dickey had no legal right to inspect and/or reject the trade-in vehicles after the contract order was executed; (2) after

inspection, Scoggin-Dickey did not have a right to reject the vehicles tendered; (3) Scoggin-Dickey unconditionally

sold the 2006 Silverado pickup to Romero when the contract order was executed; and (4) Romero’s damages should

be increased to the market value of the 2006 Silverado pickup, $21,888.00.

I. Standard of Review

Motor vehicles are included in the broad definition of “goods” as defined in the Texas version of the Uniform

Commercial Code.FN4

First National Bank of El Campo, TX v. Buss,

143 S.W.3d 915, 920 (Tex.App.-Corpus Christi

2004, pet. denied). And, unless the parties agree otherwise, a buyer has a right to inspect goods identified to a

contract for sale at any reasonable place and time and in any reasonable manner prior to payment or acceptance of

the goods. § 2.513. This is an implied condition in all contracts for sale.

Commissioner of Internal Revenue v. East

FN4. “ ‘Goods’ means all things which are moveable at the time of identification of the contract for sale.” Tex.

FN5. “Goods or conduct including any part of performance are ‘conforming’ or conform to the contract when

they are in accordance with the obligations under the contract.” § 2.106(b).

Further, contrary to Romero’s assertion, execution of the contract order did not constitute a “sale” because there was

no present transfer of ownership of the 2006 Silverado pickup to Romero or a transfer of ownership of the two trade-in

FN6. Although, under Texas law, non-compliance with the Certificate of Title Act does not override a clear

showing of a valid and complete transfer of ownership of a vehicle;

Najarian v. David Taylor Cadillac,

705

S.W.2d 809, 811-12 (Tex.App.-Houston [1st Dist.] 1986, no writ), the facts of this cause do not establish a

valid and complete transfer of the ownership of any vehicle.

Romero and Scoggin-Dickey were both buyers and sellers. Romero was selling his two trade-in vehicles to Scoggin-

Case 21.3

N.J.Super.A.D.,2009.

Houseman v. Dare

405 N.J.Super. 538, 966 A.2d 24

FN1. Houseman also alleged that Dare converted the dog and claimed that money damages were inadequate to redress

the harm she sustained as a consequence of that tort. See

Restatement (Second) of Torts

§ 946 (1979). Because the

rights of ownership and possession Houseman seeks to vindicate are based solely on the alleged oral agreement, there is

FN2. By leave granted, the Animal Legal Defense Fund and Lawyers in Defense of Animals both filed a brief as amicus

curiae. They urge us to adopt a rule that requires consideration of the best interests of the dog.

366 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW

The following facts are not in dispute. Houseman and Dare had a relationship for thirteen years. In 1999 they purchased a

residence, which they owned as joint tenants and made their home. In 2000 they engaged to marry, and in 2003 they purchased a

Dare agreed that she would get the dog and one-half the value of the house. Although she admitted that she would not have

wanted more than one-half the value of their house if she were not taking the dog, she asserted that her primary concern during

her negotiations with Dare was possession of their dog and that she accepted his representations that her share of the equity was

$45,000.

Dare acknowledged that Houseman raised the question of who would get the dog after he broke their engagement. Although he

exceeded $90,000.

At the conclusion of trial, the court found Houseman’s testimony to be “extremely” and “particularly credible.” The court noted that

Houseman testified “without guile,” “was truthful” and answered even the “hard questions ... in a way that would not have been

advantageous to her.” On those grounds, the court accepted her testimony. In contrast, the court concluded that Dare took unfair

advantage of Houseman by giving her only $45,000 for her interest in their residence.

address a breach of an enforceable agreement when money damages are not adequate to protect the expectation interest of the

injured party and an order requiring performance of the contract will not result in inequity to the offending party, reward the

recipient for unfair dealing or conflict with public policy.

See Stehr v. Sawyer,

40

N.J.

352, 357, 192

A.

2d 569 (1963); *543

Fleischer

v. James Drug Stores,

1

N.J.

138, 146, 62

A.

2d 383 1948);

Marioni v. 94 Broadway, Inc.,

374

N.J.Super.

588, 599, 866

A.

2d 208

(App.Div.),

certif. denied,

183

N.J.

591, 874

A

.2d 1109 (2005);

D’Elissa v. D’Amato,

85

N.J. Eq.

466, 467, 97

A.

41 (Ch.1916);

resolve a dispute between joint owners of property that cannot be partitioned or sold without hardship or violation of public policy.

See Newman v. Chase,

70

N.J.

254, 263, 359

A.

2d 474 (1976) (recognizing partition as “an ancient head of equity jurisdiction

[and] an inherent power of the court”);

Swartz v. Becker,

246

N.J.Super.

406, 413, 587

A.

2d 1295 (App.Div.1991) (recognizing the

relevance of hardship to partition);

Michalski v. Michalski,

50

N.J.Super.

454, 467, 142

A.

2d 645 (App.Div.1958) (considering

acrimonious and litigious nature of parties’ relationship in ordering partition rather than enforcing an agreement barring partition);

1926). In a different context, this court has recognized that pets have special “subjective value” to their owners.

Hyland v. Borras,

316

N.J.Super.

22, 25, 719

A.

2d 662 (App.Div.1998) (concluding that the owner of an injured dog was entitled to recover costs of

treatment that exceeded replacement cost);