...Porter v Wertz (Powers) Citation. 22 Ill.53 N.Y.2d 696, 439 N.Y.S.2d 105, 421 N.E.2d 500 (1981) Brief Fact Summary. Plaintiff- Appellant allowed Von Maker (who posed as Wertz) borrow a painting to decide if Von Maker wished to buy the painting. Von Maker eventually sold the painting to a third party who resold the painting to a person in Venezuela, and Plaintiff- Appellant seeks to recover the painting. Synopsis of Rule of Law. Equitable estoppel as a defense against the rightful owner is not available to Defendants unless each element of the defense is proven, specifically, that the rightful owner gave indicia of ownership to another who had the apparent right to sell and that the buyer exercised good faith in the purchase. Facts. Plaintiff- Appellant (Porter) owned a painting by Utrillo named “Chateau de Lion-sur-Mer,” which he loaned to one who was actually named Von Maker but was posing as Wertz. The loan of the painting was made along with a purchase of another painting, which Wertz agreed to pay for in a deposit and a series of notes. When the first note was not honored, Plaintiff- Appellant sought to retrieve the Utrillo from Von Maker (posing as Wertz). Plaintiff- Appellant could not get in touch with Von Maker, but hired an investigator and discovered that he had not been dealing with Wertz, but had been dealing with Von Maker, who had a long history of fraudulent dealings. Thereafter, Plaintiff- Appellant made a contract with Von Maker (represented by counsel)...
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...Week 5 -Six Assessed Questions 1. Facts: An English professor puts a comment on a student’s composition which says, “Can’t you write at all? You are writing at a third grade level and will never be able to graduate from this university!” The student is extremely upset and sues the professor for intentional infliction of emotional distress. Issue: Is the English Professor guilty of intentional inflicting emotional distress on the student? Rule: Emotional Distress is a negative emotional reaction. It could be fear, anger, or anxiety caused by another person. Application: The English Professor did write some very ugly comments on the student's paper, but it would be very hard for the student to prove this caused Emotional Distress in court. Also, Emotional Distress is usually used as a defense, not as a way to sue. Had the student been sexually harassed or something of that nature the student would have a much better case. Also, most states do not even consider Emotional Distress in court. Conclusion: The student would not win. At the most the college may terminated the professor. 2. Facts: Dorothy Yu, an employee of Northwest Pipeline Corporation, was found to have in her possession a confidential personnel document that she was not authorized to possess. She admitted possession and identified Enser, who worked in the records department, as the source of the document. Both Yu and Enser were terminated for violating Northwest's confidentiality policy...
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...Res Judicata RES JUDICATA- the Latin term for "a matter [already] judged", and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal.[1]; and the term is also used to refer to the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties, which is different between the two legal systems. In this latter usage, the term is synonymous with"preclusion". Elements of Res Judicata 1. The former judgment must be final 2. Judgment must be on the merits of the case 3. The former decision is rendered by the court having jurisdiction over the subject. 4. There is similar identity of parties, subject matter and cause of action for both cases. Cause of action - defined as "an act or omission of second party in violation of the legal right or rights of the other, and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right." TEST FOR APPLICATION OF RES JUDICATA In the application of the doctrine of res judicata, if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the Identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts or evidence would sustain both, the two actions...
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...Promissory Estoppel Brian McDonald and Harry Ledman are co-workers at Food mart. They both love model trains and have them as a hobby. While having a casual discussion about the model trains, Brian tells Harry that after he retires he wants to sell his trains and travel. Brian mentions to Harry, “You are the only person I plan to offer my trains to, because I know that you would take care of them.” This statement set the stage for a verbal contract with a pending date of sale, the date of sale being Brian’s retirement. Harry made plans to purchase the train station by saving money, borrowing money and adding on to his home to prepare for the train set. Brian was aware of all the plans that Harry was making. Upon Brian’s retirement he told the train set to his neighbor, James. Harry sued Brian, claiming breach of contract, or in the alternative, for promissory estoppel. Harry’s claims of promissory estoppel are based on the grounds that a promisor (Brian) made a gratuitous promise (to sell his train set) to a promise (Harry). Harry relied on the promise and made purchases to the fact. Brian was aware of all the purchases that Harry was making and he never said anything to Harry to suggest that he had changed his mind. Harry will ask the judge for compensation for all he spent preparing for the train set, the cost of building a 2,000 sq. ft. addition to his home and the loan from aunt Ida the 2,000 square foot room that Harry built for the model train collection and the...
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...Teamwork Unit 6 Criminal Procedure and Constitutional Protections CCL 2134-9 Instructor: Timothy R. Walsh Everest University Group C: Team C Timothy Moseley (Team Leader) Brandi Hendricks Victor Munoz Amanda Mroz 2 July 2009 Decide if Double Jeopardy, and Collateral Estoppel, applies in any of the four situations and explain why or why not. Double jeopardy is defined as “a provision of the Fifth Amendment of the United States Constitution that has been construed to prohibit an individual from being tried twice for the same crime prosecuted by the same sovereign jurisdiction unless the defendant waives the constitutional protection by appealing a conviction or otherwise” (Town, 2004, p. 584). Collateral Estoppel is defined as “where a fact necessary to the prosecution of a second but different case against the defendant has been clearly found in the defendant’s favor at the first trial, the defendant cannot be forced to relitigate the same fact a second time at a second trial involving the same sovereign” (Town, 2004, p. 583). 1) Where defendant fled by vehicle from California into Arizona, and both states tried defendant for drunk driving. “Double Jeopardy applies in this situation. The defendant is being charged with the same crime twice” (Hendricks, 2009). “This would be Double Jeopardy because he has been charged with the same crime twice” (Munoz, 2009). “The defendant broke the law in to different states so I don’t think that is would be a double...
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...Nottingham Law School Academic Division CONTRACT LAW PRACTICE EXAM QUESTION Instructions for students: You are required to prepare an answer to the following question. In order to gain the best opportunity to practice your exam technique, it is required that you produce your answer in no more than 45 minutes. Your answer must be handed in at your Contract Seminar 15 in week commencing 11th January 2016. Please note that if you fail to hand your answer in at this seminar your tutor will not be required to mark or to provide feedback on your work. On 20th November Keith, the owner of conference hall, entered into a contract with Tech Ltd. The contract price was £15,000 under which Tech Ltd agreed to install a new high-tech multimedia projection system. It was agreed that the system had to be installed by 20th December in time for it be used for a large conference on e-learning booked by the national federation of teachers on 22nd December. On 15th December Tech Ltd informed Keith that due to problems in finding special electricians they would not be able to complete the installation until 5th January. Keith reluctantly agreed to pay Tech Ltd an extra £2,000 to allow them to hire additional electricians to ensure that the installation was completed on time and to avoid having to cancel the conference. Tech Ltd hired extra electricians and worked longer hours to complete the installation as agreed on 20th December. Keith also entered into a contract with Office...
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...In Section 190 states that “When an agent, without power, committed acts or conduct obligations to third parties, on behalf of the principal, the principal is bound by the acts or obligations if he is with words or behavior, encourage third party believes that the actions and the bonds are within the jurisdiction of the agency”. This situation makes the third party loss while the agent is not a principal’s agent. Therefore, the principal is stopped (estoppel) from denying the existence of his agent. Besides that, agency by estoppel may not arise if there is only involve actions of one agent. For example, if A tells B in the presence of X that he is X’s agent and X does not deny this statement. X cannot later deny that A is his agent if B sells good to A after believing him to be A’s agent and later sue B for the price. In the case of Cheng Keng Hong vs. Government of the Federation of the Malaya, Raja Azlan Shah J held that “The law with regard to acceptance of a tender is perfectly clear. The unconditional acceptance of a tender by the employer binds both parties, and a contract is thereby formed, the terms of which are ascertainable from the invitation to the tender, the tender, the acceptance and any other relevant...
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...Consideration and Promissory Estoppel The Formation of a Contract 3 Consideration and Promissory Estoppel 1. CONSIDERATION In general, agreements or promises are contractually binding in English law only if supported by consideration. The requirement of consideration means that each party must receive or be promised something in return for giving or promising something. Consideration is, therefore, the legal description of the element of exchange and its practical effect is to ensure that gratuitous promises are not binding whereas bargains are. So if A promises B £1000, B cannot enforce that promise because B has provided no consideration (nothing in exchange) for it. It is traditional to define consideration as a benefit to the promisor or a detriment to the promisee. So in Currie v Misa (1875) LR 10 Ex 153, 162 Lush J stated, ‘A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.’ This definition can be misleading unless one emphasises, in line with the need for an exchange, that the detriment to the promisee must be requested by the promisor. So if A promises B £1000 and B, in reliance on receiving that money, buys a car, that may constitute detrimental reliance by B but B has not thereby provided any consideration for A’s promise. In contrast, if A promises B £1000 in return for B’s car (ie...
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...Brent Binns Stymetra Conley Wilson Neely Dillon v Champion Jogbra Arguments Both parties in the lawsuit provide valid points; however, at different points of the trial, flaws and weaknesses come to light. Attempting to discuss which party makes a better case would be extremely complicated considering there were two separate allegations. To avoid this arduous task, we will discuss both arguments throughout this section, one detailing the alleged breach of contract, as well as the alleged promissory estoppel. First we will breakdown the plaintiff’s argument for breach of contract. As previously discussed, Linda Dillon claimed she was wrongfully discharged under three primary reasons. The employee manual clearly spelled out a set disciplinary procedure as corrective action that must take place before termination. Secondly, Dillon knew of another employee who was terminated using the procedures listed in the manual. Lastly, she used the account of the Human Resources manager stating that champion Jogbra could not simply “get rid” of people and was bound by the procedures set in place. The account of the Human Resources manager and the case of the other employee; however, did not provide, in our opinion, a solid basis of evidence. In many cases such as this, the employer does not need to go far to debase this argument. Champion Jogbra simply argued that this process was used for non-salaried employees. Champion was also able to provide extensive documentation to support this...
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...conveyed a good title to K, the ultimate buyer, and therefore F, the real owner cannot recover the car from K. Transfer Of Title By Estoppels As we have learnt earlier, estoppel arises when a person by his/her words or conduct makes another person believe that certain affairs existed. He/she later on not allowed to deny that such a state of affairs did not exist. Applying this rule to a contract of goods act, where the true owner of the goods by his act or omission leads an innocent buyer to believe that the seller has the authority to sell, later on he may be estoppel from denying the seller’s authority to sell. Section 27 concludes with the remark that the buyer may get a good title if “the owner of the goods is by his conduct precluded from denying the sellers authority to sell.” The basis of estoppel is that it would be unfair or unjust to allow a party to depart from particular state of affairs, which it has permitted another party to believe be true [Central Newbury Car Auction Ltd vs Finance Ltd]. Box 16.3 cites some examples on this count. BOX 16.3 Transfer Of Title By Estoppel Example 1 A selles the goods of B to C in his presence. B does not raise any objection to it. Here C will get a good title. In this case, if B, the real owner subsequently decides to deny A the authority to sell the goods, he (B) may be estoppel from doing so and the sale will be binding on B. Example 2 A, the owner of wagon, allowed one of his employees, B, to have his (B’s)...
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...CITATION Schippers Excavating Inc. and Nederveld Inc. v. Crystal Creek Enterprises, Fifth Third Bank, and Integrity Tree Services of Michigan Inc. Court of Apppeals of Michigan, Mich. App. LEXIS p. 3-6 1136, 2011 FACTS Crystal Creek Enterprises was developing a subdivision in Great Rapids. Fifth Third Bank funded 3 million dollars towards the project. However there were unforeseen expenditures that exceeded the loan amount. Crystal Creek hired Nederveld Inc. to revise the project costs since their original engineer underestimated the total cost of the project. Schippers Excavating Inc. stated that they would stop the project unless Fifth Third Bank provided more funding. Fifth Third Bank acknowledged the extra costs and agreed to provide the necessary funding for updated costs through a fax. The fax contained the following: “On November 2, 2007, Bissett faxed the following letter to Schippers: In reference to the development known as The Landings at Crystal Creek, Fifth Third Bank ("Lender") and Crystal Creek Enterprises, L.L.C. ("Borrower") have a contractual agreement in which Fifth Third provides development financing for the project. Due to recent unforeseen events involving the prior project engineer, the projected development costs have been altered. The Bank recognizes the cost budget for land development at The Landings at Crystal Creek has increased and will provide the necessary financing for the updated costs provided via fax from Schippers Excavating...
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...Definition - Currie v Misa (1875) provides an accepted definition of consideration which is a vital element in a contract. A well-known principle of the law of contract holds that consideration must be sufficient but does not need to be adequate. It means that consideration must be of identifiable value whatever how small it is but cannot be as same valuable as the other party’s one. (Nicola, 2010 P44) However, when the duty arose under a previous contract with the same person, it is an existing duty also an insufficient consideration. Similarly, when the duty arose under the general law of the land or when the duty arose under a previous contract with a third party, it performs as an existing duty. (Nicola, 2010 P45) Is there any sufficient consideration provided by Jack for the promise of£2,000 by Northampton Town FC or is he just carrying out his contracted duty? Jack made a contract with Northampton Town FC to lay new turfs so it is an existing duty for Jack.He is just carrying out his contracted duties to finish the job. In another word, it is an insufficient consideration of him to create a new contract. It was not possible to create two contracts by giving the same person the same consideration twice. E.g. in the case Stilk v Myrick (1809), the captain refused to paid the sailors the wages which he promised in the case of two sailors had deserted. It is a similar example to prove the principle. (Nicola, 2010 P46) Conversely, the case Hartley v Ponsonby (1857) were...
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...Review 2 Argument 2 Table of Contents Table of Authority Statement of Jurisdiction This court has jurisdiction to hear this case under Texas Government Code § 22.220, which authorizes appellate review of all civil cases within its district or county courts. Question Presented In Texas, adoption by estoppel is proven when the adoptive parent agreed to adopt the child and the child conferred benefits on the parent. Kim Griffin agreed to “raise [Elliot Griffin] as one of her own” and acted accordingly. In addition, Elliot spent significant money and time in handling Kim’s estate after she died. Did the trial court err in deciding that there is no genuine issue of fact in this case as a matter of law? Statement of the Case Procedural History: Plaintiff-appellant Elliot Griffin, brought suit against defendants – appellees, Amber Griffin, Lester Griffin, and Steve Griffin, all of whom are Kim Griffin’s natural children, in Harris County District Court, reclaiming a fair share of Kim Griffin’s estate as a child adopted by estoppel. The defendants denied the request and filed a motion for summary judgment, asserting that Elliot was not adopted by estoppel and therefore could not inherit from Kim. The trial court granted the defendants’ motion for summary judgment. The plaintiff appealed this decision to the Fourteenth Court of Appeals of Texas. Facts: Elliot Griffin was Kim Griffin’s nephew. Elliot’s natural mother, Ruby Morrison, gave him to Kim when he was...
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...Introduction The familial relationship between parties Choy (“C”), Maggie (“M”) and Billy (“B”) establish issues to whether there is intent to enter into a legal relationship. Also, C’s promise for an extra $20 000 must be determined as to whether it is fair consideration. When C returns, he pays the $30 000 only. This outcome may lead to inequity, and thus the doctrine of promissory estoppel may apply. To determine whether Billy is entitled to the extra $20 000 and a share of the property, we need to examine whether a legally binding contract exists, whether the subsequent consideration of $20 000 is good consideration, and whether the doctrine of promissory estoppel applies. Is there a contract? For B to be entitled to the extra $20 000 and a share of the property, it must be determined that a legally enforceable contract existed between C and B. To determine whether a contract exists, the following essential elements of a contract can be examined: intention to be legally bound, offer, acceptance, and consideration. For a contract to exist, there also must legal capacity, genuine consent and legality of purpose, however these are not relevant to the case. In order for a contract to exist, there must be evidence that all parties had intended to enter into a legally binding contract. The facts in this case suggests that due to C and B’s relationship as father and son, it is presumed that there is no intention to enter into legal relations . However, this presumption...
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...Name Date Class Lesson 8-1 Types of Consideration LESSON 8-1 OUTLINE I. Consideration A. Act, Forbearance, or Promise B. Trading C. Legal Value D. Adequacy of Consideration E. Nominal Consideration Lesson 8-1 Review Vocabulary Review Define the following vocabulary terms. 1. consideration That which is given or received in a contract. 2. gift The transfer of ownership without receiving anything in return. 3. donor The person giving a gift. 4. donee The person receiving a gift. 5. forbearance A promise to not do something. 6. promisor The person who promises an action or forbearance. 7. promisee The person to whom a promise is made. Concept Review 8. Define consideration. Consideration is what a person demands and generally must receive in order to make his or her promise legally binding. Lesson 8-1 Review (continued) 9. How can legal value be found in the exchange of benefit for a detriment? With legal value, the detriment is the giving up of a legal right. A detriment arises when a person promise forbearance. 10. Under what conditions is there no consideration? There is no consideration if one of the parties does not give an act, forbearance, or promise to the other, if one of the parties does not trade her or his contribution to the transaction, or if what is traded has no legal value. 11. What is adequacy of consideration? The values that different people place on similar...
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