Final Examination - Spring 1993
All of the events in this examination grow out of efforts by Clara Client to arrange for the manufacture, installation and dedication of a cemetery headstone for a grave for her husband, Charles Client, who died July 15, 1992. We have represented the Client family for many years and Clara Client has asked us to represent her in dealing with her present legal problems. Since she has difficulties which arise from three independent, though related circumstances, your senior partner has divided the facts told to us by Clara into three parts designated Question I, Question II and Question III. It is, therefore, necessary to read through the entire examination in order to have a clear view of all of the facts presented to us by Clara Client. For example, some of the additional facts you learn in Question II could be of assistance to you in responding to Question I.
Question I
(40 out of 120 total points; Suggested Time: One Hour)
Six months after her husbandŐs funeral and burial, Clara realized that she had not yet purchased the headstone that she would need to provide to the cemetery to mark her husbandŐs grave. She has been told by friends that dedication of the headstone should be done one year after her husbandŐs death.
In July, just after her husbandŐs death, Clara had received in the mail information from three companies in the business of manufacturing stones used in cemeteries. She did not solicit this information. It was apparently the practice of companies of this type to send literature to individuals shortly after the appearance of death notices in the local newspapers. In each case, the literature she received had pictures of a number of headstone designs, a list of materials out of which they could be constructed (various kinds of stone), the amount of writing which could be placed on each stone and the price for each stone. In each case, the literature recited that other designs could be created and estimates provided. Clara was attracted to one companyŐs brochure which had a picture of a headstone that seemed to her to be just exactly what she wanted. The stone was priced at $1000.
Clara remembers that it was on January 15, 1993, that she called the stone company on the telephone and described to them which stone she wanted by describing to them its location in the brochure she had received from them. She told them she would want the stone delivered to the cemetery by July 1, 1993. They responded that they could meet that delivery date. At their request, she immediately wrote out a check for $250 as a deposit and placed it in the mail box in the lobby of the office building where she worked.
Clara felt a great sense of relief at having taken care of this matter, but that relief was short lived. The same afternoon, shortly after she mailed the check, she received a telephone call from the stone company. The caller asked her to look again at the brochure and tell them the code number of the brochure from which she had ordered. She told them it carried the number 0192. They said they were very sorry, but that brochure was out of date. The current brochure was 0193 and the caller said they would send her the new brochure at once. When it arrived the next day, Clara was distressed to discover that the stone that she liked was no longer in the brochure. There was, in the same location in the new brochure, another stone for the same price which she found to be truly ugly and totally unsuitable to mark her husbandŐs grave.
Clara called the company immediately and told them that she wanted the stone she had identified from brochure 0192. They said that they could still make that stone, but that it would have to be specially manufactured and the price would be $1500. Furthermore, delivery of the stone at the time that Clara wanted it would not be possible. The company estimated that it could not be delivered until August 1 at the earliest and they would not guarantee delivery until August 15.
Please analyze ClaraŐs legal relationship with the stone company. State the arguments that can be made for Clara in support of her argument that if the stone company refuses to deliver the stone she wants on July 1 they will be in breach. State the arguments that the stone company will make in support of its position that it does not have a legal obligation to deliver the stone she wants. The sale of stone monuments such as those involved in this dispute has been declared by the highest court of this state to be a sale of goods within Article 2 of the Uniform Commercial Code. Therefore the Uniform Commercial Code must be applied if it contains provisions dealing with the legal issues you are discussing. The court will apply the common law for the resolution of issues as to which the Code is silent.
Question II
(40 out of 120 total points; Suggested Time: One Hour )
Clara has also asked us to review her legal relationship with the cemetery. When, shortly after his death in July, 1992, she arranged for the burial of her husband in the cemetery, she also arranged for the installation and dedication of the headstone during the summer of 1993. The cemetery was to provide a foundation for the stone, was to set the stone in its proper location, and was to provide a tent and seating for the dedication ceremony. When the cemetery said they needed to put an exact date in the contract, she had said July 15, pointing out that she couldnŐt state precisely when it really could take place since it depended both upon the availability of the stone and the availability of her husbandŐs relatives who would wish to come to the dedication ceremony. The agent of the cemetery company told her not to be concerned about the date, that they could be flexible about the scheduling of the installation and dedication. The cemetery required Clara to pay immediately the $1000 fee. She gave them a check for $1000.
She called the cemetery after hearing that the stone she wanted would probably not be available until August 1 or even August 15 and therefore the dedication would not take place on July 15. She stated that she wished to set a later date for the installation and dedication. They told her they would be pleased to make this new arrangement with her for an additional $500. They said that this represented a reduction in the price as a special accommodation since ordinarily they would charge $1000 for their commitment to install a stone. Clara told them that, in all fairness, they should simply apply the $1000 she had already given them to the cost of the installation and dedication in August.
They told her that she had better have her lawyers look at the contract because she was not right in her view about what the contract obligated them to do. They asserted that they were ready willing and able to perform their obligations under the contract on July 15 and that they were, therefore, entitled to keep the $1000. Clara has brought to us the contract she signed with the company that operates the cemetery. Relevant provisions are set out below (the contract uses the word ŇfamilyÓ to designate persons seeking cemetery services and ŇcemeteryÓ to designate the company which owns and manages the cemetery). The form is printed. The words in italics were handwritten on the form.
PROVIDED THAT:
1. The headstone will conform with cemetery regulations as to size and material.
2. Family will make the headstone available not later than ten days before July 15.
3. If the headstone is not available by the time stated in the preceding section, the cemetery reserves the right to consider the contract as materially breached by the family.
Please analyze ClaraŐs relationship with the cemetery company and state the arguments that we can make to achieve her goal of having the installation of the stone and dedication ceremony occur in late August without further payments; consider the arguments of the cemetery company that Clara is not entitled to the return of the $1000 she has paid and therefore is not entitled to have the $1000 applied toward the cost of a later installation and dedication ceremony.
Question III
(40 out of 120 total points; Suggested Time: One Hour )
Clara is a person who acts quickly once decisions are made. Therefore immediately after her first telephone conversation with the stone company (and before they called her back to tell her the brochure from which she ordered was out of date), Clara had called up the Morpheus Arms, a hotel near the cemetery, to arrange for four rooms for her husbandŐs relatives who she anticipated would come from out-of-town for the dedication ceremony. Based upon her conversation with the stone company, she had reserved rooms for July 15. They explained that the reservation, if guaranteed, could not be cancelled and that the room rate was $100 per night per room. She gave them a credit card number to guarantee the availability of the rooms. They in turn gave her reservation numbers for each of the four reservations. She called her deceased husbandŐs first cousin Martha and told her about the arrangements she had made for the dedication ceremony and gave her one of the reservation numbers to obtain one of the guaranteed rooms. Martha immediately called the hotel and identified herself as the holder of the reservation for one of the rooms.
When Clara learned later that same day that the dedication could not take place in July because of the unavailability of the headstone, she immediately called the hotel to notify them of the change in plans. They responded that the reservations could not be cancelled and they intended to charge her credit card account immediately for $400 ($100 per room). She objected, of course, but they were quite insistent.
Yesterday Clara Client read in the newspaper that the Morpheus Arms had been dynamited by a dissatisfied guest at the hotel and that the damage was expected to close the hotel until at least October 1.
Martha has told Clara that since July 15 is the anniversary of CharlesŐ death, she wants to come visit Clara. When she called the Morpheus Arms hotel to confirm her reservation, she was told that the hotel was closed. She has learned that the only other hotel room in the area with a vacant room would charge her $200 for the room. She asked Clara to speak with our law firm about this problem.
Please analyze ClaraŐs and MarthaŐs legal rights and liabilities in their relationships with the Morpheus Arms hotel. Please consider the arguments of attorneys for the Morpheus Arms hotel in response to these arguments.
(a) Clara wants her $400 back. While denying all liability, the hotel argues, in the alternative, that Clara can not demand the return of more than $300 in view of demands made on them by Martha.
(b) Martha feels that the Morpheus Arms hotel has breached its obligation to her and that they should pay her $200, the cost of the only substitute hotel room available.