Spring Term 2001 Examination

Spring 2001

Question 1

(40 of 120 points; Suggested Time: One Hour)

Our client Susan Homeowner recently completed construction of a house. She then decided to hire a landscape contractor to provide the needed landscaping of her property. Susan was an apartment dweller before the construction of this house and knows very little about gardening. After some research on landscaping, she decided that she wanted a garden which would be completely green (no flowers or flowering trees or bushes) and would be evergreen (that is, the trees would not lose their leaves in the wintertime). She made numerous telephone calls to landscape contractors listed in the telephone book. One company, Dig and Plant (D&P), seemed particularly responsive to her description of her plans and she invited its representative to meet her at the new house for detailed discussions. At that meeting, the D&P representative pressed her over and over again about the issue of the kind of plantings that she wanted, making the point that a garden which didn’t change throughout the seasons would not, in the long run, be acceptable to her. They managed quite quickly to agree on a price of $10,000 for the landscaping. They agreed to meet again the next day to continue their discussion of the choice of plantings. The representative of D&P stated that he would provide pictures of what D&P would plant. When the representative arrived the next day, his portfolio of proposed plantings contained pictures of a number of flowering bushes and trees. When she protested, the D&P representative responded - “You said no flowers and there are no flowers in our design, just flowering bushes and trees.” Susan said, quite angrily, “No flowers, just leaves - do it my way or forget about it.” There was no further discussion and the representative from D&P left.

Much to Susan Homeowner’s surprise, gardeners employed by D&P showed up at her new house the next day with two trucks full of trees and bushes. The trees and bushes looked quite healthy. Susan was pleased to see they were all covered with green leaves. The gardeners worked for several days on the planting. After their work was completed, the head gardener handed her a sheet of paper, asking her to sign, and asking her for a check. Susan signed, but protested that she had not been told that payment was required immediately. The gardeners left and two days later Susan received in the mail an identical sheet of paper with “Payment Due” stamped at the bottom just under the total price of $10,000.

Susan paid the bill and breathed a sigh of relief that she had managed to complete this phase of the job of getting her house and grounds to be as she wanted them to be. Unfortunately, her relief was short-lived. At her housewarming party, one of her guests who happened to teach botany at a nearby college, commented favorably on her garden. She was delighted, until he said, “and I love the look of bare tree limbs against the winter snow.” Susan protested that all of the plantings were evergreen. He laughed and said, “no, these trees are all deciduous.” He then explained that that word meant that they would drop their leaves in the Fall and grow new ones the next Spring. Susan was devastated by this information. When she showed the paper she received from the gardeners to the professor of botany, he pointed out to her that the trees listed were all oak and maple and that these were, in fact, deciduous trees.

Even worse, after a careful reading of the paper left (and sent) by D&P, the professor pointed out something else that bothered him. He said that the paper stated that the sole guaranty was that the trees and bushes were not defective when planted. He said that the first year of growth for new plantings was the critical year and he would certainly have preferred a provision which contained a guaranty of health through the first year of life. This was particularly important for deciduous trees and bushes since it was not always easy to tell by casual observation during the winter whether they were alive or not.

Susan has turned to us for advice. She has several questions for us:

(1) can she do anything about the fact that the trees and bushes are not, in fact, evergreen?;

(2) what if trees or bushes should fail to live through their first winter - would she have any recourse against D&P?;

(3) can she pull all of the plantings out of the ground and return them to D&P? They have only been in the ground for two weeks and the professor assures her they could easily be uprooted and returned to D&P without harming them and at modest cost;

(4) what arguments should she expect D&P to make in response to the arguments we present on Susan’s behalf?

Question 2

(40 of 120 points; Suggested Time: 1Hour)

Our client Alan Brand (AB) has started a new business in which he will be selling auxiliary prefabricated buildings, primarily to homeowners. AB will be selling storage buildings, gazebos and dog houses. The problem presented to us by AB concerns a purchase of dog houses which he made from Frank’s Ideal Dog Opus (FIDO). On Friday, March 23, 2001 our client called FIDO to discuss the purchase of some dog houses that were listed in the FIDO catalog. In the catalog, the description stated that the dog houses were constructed of “naturally weather resistant wood.” In the conversation, FIDO, in response to one of our client’s questions, stated that they were constructed of cedar. On Monday, March 26, 2001 AB sent a purchase order to FIDO. AB’s purchase order called for FIDO to supply 8 foot by 10 foot dog houses. The purchase order contained a reference to the part number and contained the description that it had copied from FIDO’s catalog. AB’s purchase order form contained a merger clause and also a provision saying that modifications could only be made in writing. The purchase order was for 100 dog houses and specified that 10 dog houses should be delivered each month by the fifth day of the month for 10 months. The total price for the 100 dog houses was stated to be $50,000. Payment was to be made 15 days after delivery. Although there was a provision at the bottom of the purchase order form for FIDO’s signature, the form was never sent back to AB by FIDO. But on Monday, April 2, 2001 FIDO delivered 10 dog houses to AB. AB inspected the dog houses and his inspection raised doubts in his mind about the wood out of which the dog houses were constructed. He asked a friend who was a skilled cabinet maker to come and look at the dog houses. His friend (correctly) told him that the dog houses were made of redwood and not cedar. His friend assured him that redwood was a fine material for these dog houses and that the dog houses were well designed and well made. He said that if there was any difference in cost of manufacture between cedar and redwood dog houses, the redwood dog houses probably cost more to build. His friend speculated that sometimes cedar was less available at lumber suppliers and that this might explain why FIDO had used redwood for these 10 dog houses.

At first our client AB was pleased with this information, but it became clear to him after discussing the matter with several of his customers that some potential buyers might reject dog houses made of redwood on the ground that overharvesting of redwood was thought by persons concerned with preservation of forests to threaten extinction of this great natural asset.

Our client called FIDO to discuss this problem and FIDO agreed that if AB would accept this first shipment that the next shipment would be all cedar. On this basis, our client accepted and paid for the first shipment. However on April 9 another 10 dog houses arrived. Five of the dog houses were made of cedar, but five others were made of redwood.

Please advise our client AB about his rights and liabilities. As you set out the arguments you would make on behalf of our client AB, please include the responses you would anticipate receiving from the attorney representing FIDO.

Question 3

(40 of 120 points; Suggested Time: 1 Hour)

We represent Modern Media (MM), a producer of movies for exhibition in movie theaters and for sale to television networks. We are having a controversy with Ronald Regal, an actor who was hired to play the leading role in a film that is scheduled for production beginning this June. Our client’s contract with Ronald Regal was not drafted by our office. Regal is in such great demand that he was able to persuade our client to hire him on a contract prepared by Regal’s agent. The relevant portion of the contract follows:

The undersigned agrees to accept the leading male role in the film “Green Sleeves” which will be filmed between February and May 2001 on the following conditions:

1. Modern Media will consult with the undersigned about the selection of the director;

2. Modern Media agrees that the undersigned will, at the conclusion of filming, be entitled to retain all costumes made for him for the film;

3. Modern Media agrees that food on the movie set will be prepared by the restaurant chosen by the undersigned;

4. Modern Media agrees that all filming will be concluded by 2 pm each day;

5. Modern Media agrees that only persons agreed to by the undersigned will be permitted on the set while the undersigned is working on the set.