Caldwell agreed with Duke/Fluor Daniel (D/FD) to install a power plant cooling system in Aiken, South Carolina. The contract stated that Caldwell would pay liquidated damages of $5,000 per day if the system was late. Marley agreed to ship to Caldwell all of the material and equipment needed to build the cooling system, and to deliver it no later than April 1. Their contract disclaimed either party’s liability for consequential and liquidated damages and required any modification be in writing. Marley delivered its material almost two months late, making Caldwell late in its obligations to build the cooling system. D/FD assessed Caldwell liquidated damages of $135,000. Caldwell attempted to pass this cost, which it called “backcharges,” on to Marley by paying $135,000 less than Marley’s invoice demanded. Marley sent Caldwell a letter, stating “We would like to work with you to resolve this issue. However, before we can agree to these backcharges, we must have [certain specified] documents.” Caldwell supplied the documents plus a change order indicating that Marley accepted the backcharges once it was signed by both Caldwell and Marley. A Marley executive agreed orally to accept the charges, but Marley never signed or returned the change order and later rejected the charges. Caldwell refused to pay the full contract price and Marley sued. You Be the Judge: Is Marley obligated to pay the backcharges? Holding: Marley wins. Excerpts from the court’s opinion: The contract expressly prohibited oral modifications, and there was no written modification. Caldwell’s only hope is that Marley waived the writing requirement. But Marley’s conduct did not amount to a waiver. Yes, there was some evidence that Marley orally agreed to modify. The telephone call is Caldwell’s best evidence. However, when balanced against the contractual requirement of a writing, and Marley’s refusal to execute a written modification, one phone call is not enough to create a waiver. (The court also expressed amazement that Caldwell would agree to a $5,000 per day liquidated damage clause while not taking any steps to protect itself, such as insurance, or a corresponding clause in the contract with Marley.) Required: a. What two issues does this case raise? b. What sections of the UCC does the court look at to resolve these issues? c. Could the parties orally modify the contract? d. Marley indicated some willingness to resolve the dispute. Did its conduct constitute waiver of the modification prohibition?
> When John Blackwell was seriously injured, he and his wife Ki Tae Lee hired Se Ill Choi to help Lee communicate with her husband’s doctors and perform daily chores. Eventually, Choi moved into the Blackwell home and did everything for them from preparing
> Twenty-one seamen entered into a written contract with the Alaska Packer’s Association (APA) to sail from San Francisco to Pyramid Harbor, Alaska, where they would work as fisherman and sailors during the salmon-fishing season. The workers agreed to perf
> Kenny Willis and his neighbors, Rick and Joyce Taylor, were good friends. Rick helped Kenny repair his truck and Kenny cut the Taylors’s yard because they did not own a lawnmower. One day, while the Taylors were out, Kenny began to cut their grass. Joyce
> Consideration does not require counteroffers. Students may equate “bargained-for” with “haggled-over.” A simple example can demonstrate the meaning of “bargained-for” in this context: Curt offers to mow Pedro’s lawn once a week for $50 beginning May 1 an
> Stephen Son was a part owner and operator of two corporations. Because the businesses were corporations, Son was not personally liable for the debts of either one. Jinsoo Kim invested a total of about $170,000 in the companies. Eventually, both of them f
> William Story wanted his nephew to grow up healthy and prosperous. In 1869, he promised the 15-year-old boy $5,000 if the lad would refrain from drinking liquor, using tobacco, swearing and playing cards or billiards for money, until his twenty-first bir
> In 2010, Congress enacted the Patient Protection and Affordable Care Act (the Act), which aimed to increase the number of Americans covered by health insurance and decrease the cost of health care. The Act required most Americans either to maintain healt
> The Delaware Harness Racing Commission (Commission) hired Donald Harmon to be the Presiding Judge of harness racing (charged with enforcing racetrack rules). After years on the job, Harmon was arrested for improperly changing a judging sheet to favor a h
> Douglas Kent was the Consul General of the United States in Vladivostok, Russia. One evening, he drove from his office to a gym and then home. On the way home, he was involved in an accident that left Aleksandr Kashin severely injured. Kashin sued the Un
> From about 8 P.M. until 2 A.M. the next day, Evans and several coworkers scoured the children’s playground at a McDonald’s restaurant. This special cleaning prepared the restaurant for inspection as part of McDonald’s “spring blitz” competition. At McDon
> Staff Sergeant William E. Dreyer was a recruiter for the United States Marine Corps. Driving to work one morning at 6:40 AM, in a government owned car, he struck and killed 12-year-old Justin Zankel. The child’s parents sued the federal government, claim
> The orchestra in Lancaster, Pennsylvania hired musicians to play about four classical music concerts each year. These musicians could choose to play in however many concerts they wished. They then signed a Musician Agreement, which stated that they were
> Alexandre Van Damme was eager to buy a painting by the artist Gerhard Richter. Nahum Gelber was willing to sell his Richter entitled “A.B. Diffus”. Van Damme hired Christophe Van De Weghe to inspect the painting at the Toronto apartment of Gelber’s son.
> File this case under: What parents will do for their children (whether or not they should). Wachovia Bank loaned Daniel Manley $420,000 and, in return, he gave the bank a promissory note in that amount. His father, Thomas, guaranteed payment of the note.
> Adrenetti Collins was a secretary who worked in the PGA office. During a four-month period, she forged 18 PGA checks totaling $22,699.81. To avoid detection, she intercepted two of the bank statements sent by Whitney National Bank and replaced them with
> During the time that Carol Young worked as an assistant to Brian P. Burns, her salary never exceeded $75,000 a year. But during this period, she opened several credit card accounts with Neiman Marcus on which she charged more than $1 in luxury goods. Alt
> MediaEdge wrote a check for $133,026 on its account at Wachovia, payable to CMP Media. Before CMP received the check, someone changed the name of the payee to Sunjin Choi Choi, and deposited the altered check into Choi’s account at Foster Bancshares. Fos
> John and Nancy Augustine hired Hanover Homes to build a house. They took out a construction loan from South Bend Bank. When directed by the Augustines, South Bend would issue a check payable to John, Nancy, and Hanover; John and Nancy would indorse it an
> The MacNabs purchased property from Richard Harrington’s client. The MacNabs came to the closing with an uncertified personal check drawn on their Merrill Lynch cash management account for $150,128.70. When Harrington called Merrill Lynch, an employee to
> Jeff Messing attempted to cash a check for $976 at a Bank of America branch office. The check was made out to Messing and drawn on the Bank of America. A teller asked Messing to provide identification. Messing presented his driver’s license and a major c
> In the mid-1950s, Richard Boeken began smoking Marlboro cigarettes at the age of 10. Countless advertisements, targeted at boys aged 10 to 18, convinced him and his friends that the “Marlboro man” was powerful, healthy and manly. Eventually, Richard chan
> During the Jewish holidays, Fallsview Glatt Kosher Caterers organized programs at Kutcher’s Country Club, where it provided all accommodations, food and entertainment. Fallsview sued Willie Rosenfeld, alleging that he had requested accommodations for 15
> Joseph Britt, a detective, enrolled in a Master’s Degree program at Chestnut Hill College in Pennsylvania. Chestnut Hill promised students credit for life experience. The college promised Britt important credits for his life experience if he enrolled, an
> Roger DeMasse and five others had been hourly employees-at-will at ITT Corporation for many years. ITT issued an employee handbook, which it revised four times over two decades. The first four editions of the handbook stated that within each job classifi
> Mr. W sells fireworks. Under Texas law, retailers may only sell fireworks to the public during the two weeks immediately before the Fourth of July and during two weeks immediately before New Year’s Day. And so, fireworks sellers like Mr. W tend to lease
> Mason was a surgeon/apothecary in the English town of Thetford. Davis wished to apprentice himself to Mason. The two agreed that Davis would work for Mason and learn his profession. They further agreed that if Davis left Mason’s practice, he would not se
> The Washington, D.C. police suspected Antoine Jones of being a drug dealer. Without a valid search warrant, they attached a GPS tracking device to his car. For 28 days, they used the GPS to determine his whereabouts. Based on this evidence, Jones was con
> Driving along the Nebraska State Highway just after midnight, Dennys Rodriguez briefly swerved onto the highway shoulder, which is a violation of Nebraska law. At 12:06 a.m., Officer Morgan Struble pulled Rodriguez over for erratic driving. Struble quest
> Jeffrey Skilling was president and chief operating officer of Enron Corporation, the seventh largest company in America in terms of revenue. At least, that is what everyone thought. Ten months into Skilling’s term of office, Enron filed for bankruptcy pr
> U.S. law provides that “whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined or imprisoned not more than two years, or both.” The Federal Communications Commission (Commission) has been instructed by Co
> “Mrs. F” was a licensed social worker in Maryland. One of her clients, “John Doe,” was convicted of child abuse and sex offenses involving his minor granddaughter. The Board of Social Work Examiners, an administrative agency, learned that Mrs. F. had lik
> Cyberheat, Inc., ran sexually explicit websites for consenting adults. It hired other companies, called affiliates, to drive potential subscribers to its sites. The affiliates were paid a fee for each subscriber they generated. The contract that Cyberhea
> See the chapter opener. Connie Daniell argued that Ford was both (1) negligent because it did not warn her that there was no opening mechanism in the trunk and (2) strictly liable for this design defect. Ford sought summary judgment. Issue: Was Ford n
> Ibrahim Boumelhem, aged four, began playing with a Bic disposable lighter that his parents had purchased. He started a fire that burned his legs and severely burned his six-month-old brother over 85 percent of his body. Ibrahim’s father sued Bic, claimin
> The Alden Leeds company packages, stores, and ships swimming pool chemicals. The firm does most of its work at its facility in Kearns, New Jersey. At any given time, about 21 different hazardous chemicals are present. The day before Easter, a fire of unk
> On a warm California day, there were about 30 personal water craft (jet skis) operating on Coyote Lake. The weather was fair and visibility good. Anthony Nguyen and Rachael Truong went for a ride on Anthony’s Polaris watercraft. Cu Van Nguyen and Chuong
> Cornell professor Joan Jacobs Brumberg attended a university fundraiser catered by Cipriani. During the event, she feasted on fancy appetizers. About 30 minutes later, she felt intense abdominal pain, which did not go away. Weeks later, her doctors remov
> Juana Curry and William Moore, customers of AvMed Insurance, took care to protect their private information. They destroyed mail that contained sensitive data and avoided uploading any such information online. Despite their care, they both became victims
> At the University of Arizona, the Epsilon Epsilon chapter of Delta Tau Delta fraternity gave a welcoming party for new members. The fraternity’s officers knew that the majority of its members were under the legal drinking age, but they permitted everyone
> Helen Palsgraf was waiting on a railroad platform. As a train began to leave the station, a man carrying a package ran to catch it. He jumped aboard but looked unsteady, so a guard on the car reached out to help him as another guard, on the platform, pus
> Biswell operated a pawn shop and had a license to sell "sporting weapons". Treasury agents demanded to inspect Biswell's locked storeroom. The officials claimed that, the Gun Control Act of 1968 gave them the right to search without a warrant. That law
> The Family Smoking Prevention and Tobacco Control Act (FSPTCA) instructed the FDA to issue regulations requiring cigarette packaging to contain graphics depicting the negative consequences of smoking. After holding hearings on its proposed regulation, th
> Christianne Carafano is a film actor under the stage name Chase Masterson. Someone posted a profile of her on the Matchmaker.com Internet dating service. This phony profile stated that Carafano was “looking for a one-night stand” and for a “hard and domi
> Duke Power used a high school completion requirement and an intelligence test in hiring and promotion. The result was that fewer minority applicants qualified for jobs at Duke Power. Griggs sued under Title VII. Issue: Does Title VII proscribe tests that
> When they applied for life insurance from Farm Bureau Life Insurance Company ("Farm Bureau") in 1999 Wyoming resident Gary Pehle and his wife Renna did not know they were infected with the Human Immunodeficiency Virus ("HIV"). Farm Bureau collected the i
> Hardingham was a recovering alcoholic. Defendant United Counseling Service (UCS) gave him a job as an emergency services counselor. Halpin, UCS's executive director, learned that Hardingham was again drinking. Halpin and other UCS employees went to Hardi
> Prosenjit Poddar killed Tatiana Tarasoff. Tatiana's parents claimed that two months earlier Poddar had confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the University of California at Berkeley. They sued the univer
> Victor Hernandez had worked for more than 20 years as a custodian at a public power plant and had received training in health and safety rules from the Occupational Safety and Health Administration (OSHA). He took a second job as night custodian at an el
> Maria Parajon sued Diana Pereda for injuring her in a car accident. During voir dire, Parajon’s lawyer asked potential jurors: “Is there anybody sitting on this panel now that has ever been under the care of a physician for personal injuries, whether you
> Exxon marketed gasoline to retailers in three ways. Franchisees (who owned local gas stations) were required to purchase a minimum number of gallons per month at the dealer tank wagon price (DTW) set by Exxon. Jobbers (distributors who could resell to de
> J. Sanders, Inc. had a contract with the federal government to install the heating system at a federal prison camp. The company negotiated with Superior Boiler Works to purchase three large commercial units. On March 27, Superior sent a proposal to Sande
> Ivan Tepper, the CEO of Delta Star, met with the sales manager at Michael’s, a flooring company. In a verbal agreement, he hired Michael’s to install carpet in the entryway of his office suite, and tile in his personal office and the office of Nash, his
> Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, was the subject of several posts on TheDirty.com, a gossip website run by Nik Richie. Anonymous submissions accused Jones, among other things, of being promiscuous with many football
> ProCD sold SelectPhone, a database containing information from 3,000 telephone directories. It sold the software to consumers for $150; business paid a much higher price. Every box containing the consumer version of SelectPhone was wrapped in plastic shr
> LAN Systems, Inc. (“i.LAN”), helps companies monitor their computer networks. NetScout Service Level Corp., formerly known as NextPoint Networks, Inc. (“NextPoint”), sells sophisticated software that monitors networks. In 1998, i.LAN and NextPoint signed
> Gene and Martha Jannusch owned a food concession business and believed they had agreed to sell it to Lindsey and Louann Naffziger. When the Naffzigers backed out, the Jannuschs sued. The trial court ruled that there had been no meeting of the minds, and
> Christopher Rottner’s computer began malfunctioning – its performance decreased, and the Internet speed was sluggish. Searching for a solution, he found a free trial of PC TuneUp online from AVG. AVG claimed that the software would boost Internet speed,
> Ethel Flanzraich, 78 years old, slipped and fell on property owned by Robin’s Wood and broke her left arm and left leg. Flanzraich sued, claiming Robin’s Wood employee, Anthony Monforte, had negligently painted the stairs on which she fell. Robin’s Wood
> Legends are Forever, Inc. (Legends) trademarked the slogan “Legends are Forever.” When Nike used the slogan in an ad campaign featuring basketball player Kobe Bryant, Legends sued Nike. But, during discovery, Legends repeatedly failed to comply with Nik
> Michael Brooks desperately needed financing for his company, BrooksAmerica, so he agreed to a sale-leaseback agreement with Terminal Marketing Co. Terminal would pay BrooksAmerica $250,000, and in exchange would obtain title to BrooksAmerica's computers
> MSC owned a shopping center and leased space to Tenet for use as an outpatient surgery and general medical practice. According to the lease, Tenet could assign with the consent of the lessor, and said consent would not be unreasonably withheld. MSC sold
> The California Department of Parks and Recreation (DPR) and Delaware North Companies (DNC) entered into a contract giving DNC the right to operate a concession stand at a state park in San Diego for 10 years. Four years into the contract, DNC assigned it
> Miller listed her home for sale. On August 4th, Norman made an offer, specifying that it must be accepted by 5:00 p.m. on August 5th. Miller received the offer, made several changes, signed it, and returned it to Norman. Norman did not respond. On August
> The state of Alaska entered into a contract with Corrections Corporation of America (CCA), a private company, to house Alaska’s inmates. The contract required CCA to abide by the terms of a settlement agreement between the state and its inmates known as
> Juzwiak was a tenured teacher at Hightstown High School in New Jersey. He received three emails from someone who signed himself “Josh,” with the address, “Josh Hartnett “. The teacher did not know anyone of that name. These emails said: 1. Subject line:
> After his wife left him, Anthony Elonis changed his Facebook name to “Tone Dougie” and began posting self-styled rap lyrics containing violent language and imagery about his friends and family. Elonis always posted disclaimers stating that the lyrics wer
> Donna and Alan Smith wanted to raise emus, which are flightless Australian birds that look like ostriches. The creatures reproduce rapidly in almost any terrain and are sold for their meat, which is high in protein and low in fat, and for their oil, leat
> For years, Hai Yun, a Chinese instrument manufacturer, made high-quality drums for Armadillo, which was a major distributor of musical instruments in the United States. Armadillo put great time and effort into developing a new line of drum kits called “D
> Byblos sold off price designer clothing manufactured by an Italian parent company. Morris & Sons was a Chicago retailer that had been selling men’s and women’s clothing for 40 years. Aaron Krichevsky, the president of Morris, contacted Patricia Saracini,
> Edward and Kelly Kiesel bought a trailer from James Lile, the owner of Lile’s Trailer Sales. That same day, the Kiesels used the trailer. The next morning, after an all-night rain, the Kiesels noticed water inside the trailer, near the door. The next tim
> Zion Temple First Pentecostal Church ordered new choir robes from Brighter Day Bookstore, a retailer that sold robes manufactured by Murphy Cap & Gown. When Brighter Day delivered the robes to the Zion Temple, the church members found many faults. They
> Burton is a Vermont-based designer, manufacturer, and seller of snowboards. ViQuest is a manufacturer of injection-molded products based in Shanghai, China. Burton and ViQuest contracted for ViQuest to manufacture Burton’s snowboard bindings. The agreem
> In setting rules for Internet infrastructure, the FCC ruled that broadband ISPs are not common carriers and, therefore, not subject to rules that require equal treatment for all their customers. However, the Commission later became concerned that ISPs mi
> Machado Ford published the following newspaper ad: “Buy a New Ford and Get $3,000 Minimum Trade-In Allowance.” Izadi attempted to purchase a new Ford Ranger valued at $6,595 for $3,595 in cash plus his trade=in (assuming the minimum trade=in allowance).
> James Huff was the chairman of the Kenton County Airport Board, which manages the Cincinnati/Northern Kentucky International Airport (CVG). While at a conference in Italy with his wife Bertha and a colleague named Larry Savage, Huff used his iPhone to ca
> Deborah Ehling, a registered nurse and paramedic who worked at the Monmouth-Ocean Hospital Service Corporation (MONOC) reacted on her Facebook page to a shooting. Her Facebook privacy settings limited access to just “friends.” Management members were not
> Chelsea Chaney was a seventeen-year-old high school student in Fayette County, Georgia. At a county-wide Internet safety seminar, Curtis Cearley, the District’s technology director, presented a PowerPoint slideshow to illustrate the permanent and often-e
> While attempting to pass several cars on a two-lane road, Campbell drove into oncoming traffic. An innocent driver swerved to avoid Campbell and died in a collision with a third driver. The family of the deceased driver and the surviving third driver bot
> Late one night, an anti-abortion protestor named Robert Thomas climbed into a dumpster located behind the Women's Advisory Center, an abortion clinic. He found documents indicating that the plaintiffs were soon to have abortions at the clinic. Thomas gav
> Organon fired John Soldau, then sent him a letter offering to pay him double the normal severance pay, provided Soldau would sign a full release for any claims he might have against the company. Soldau signed the release and deposited it in the nearest p
> The plaintiffs sued Netscape, claiming that its SmartDownload software illegally captured private information about files they downloaded from the Internet. Plaintiffs downloaded the SmartDownload software from a page on Netscape’s web that promoted the
> Bayway Refining and Oxygenated Marketing and Trading A.G. (OMT) were both in the business of buying and selling petroleum products. Bayway agreed to sell OMT 60,000 barrels of gasoline, and OMT faxed a confirmation letter stating that it represented the
> Matthew Gabriel was a student in Professor Pumo’s immunology class. Professor Pumo’s syllabus outlined course requirements and stated that “plagiarism will not be tolerated.” After grading the first assignment, Professor Pumo realized that many papers ha
> David Chase was a television writer-producer with many credits, including a detective series called The Rockford Files. He became interested in a new program, set in New Jersey, about a “mob boss in therapy,” a concept he eventually developed into The So
> When a Tom Cat Bakery delivery van struck Elizabeth Nadel, she suffered significant injuries, Nadel filed suit. Before the trial, Tom Cat’s attorney offered a $100,000 settlement, which Nadel refused. While the jury was deliberating, the bakery’s lawyer
> Eileen Norkunas owned a home in Baltimore, Maryland. The Groves and the Cochrans expressed an interest in buying the house. The two couples drafted a handwritten letter, stating: Letter of Intent We, Rebecca Cochran, Robert Cochran, Hope Grove and Robert
> An offer is an act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms. Sometimes we forget that by making a valid offer, we give that power to the other person. Sometimes corporate officers
> Attorney James Mason represented Nelson Serrano, who was accused of killing four people in Central Florida. But Serrano had an alibi: On the day of the crime, hotel surveillance in Atlanta had captured him on video – both before and after the murders. Th
> Elijah Turley was a steelworker at the Lackawanna company’s plant near buffalo, New York. For over a decade, he was the only African-American in his department. For the last three years of his employment, Lackawanna employees tormented and degraded Turle
> Sharon Yeagle was the Assistant to the Vice President of Students Affairs and Virginia Polytechnic Institute and State University. One of Yeagle’s duties was to help students apply to the Governor’s Fellows Program. The school newspaper published an arti
> Citizens Publishing was a family-owned corporation that published the Ellwood City Ledger and another local newspaper. Bud Dimeo had been the company’s sole photographer for over 35 years. When the needs for daytime photography declined, Citizens began r
> A union representing workers at Truitt Manufacturing Company requested a raise of 10 cents per hour for all members. The company countered with an offer of 2.5 cents, arguing that a larger increase would bankrupt the company. The union demanded to examin
> For 12 years, David Brune taught theater and drama at the Dalton School, an elite private school in New York City. Like other Dalton faculty, he worked on a renewable one-year contract. The school chose Thoroughly Modern Millie as the middle school’s an
> Exide Technologies issued repeated warnings to Robert Peterson for driving forklifts too fast and violating other safety rules. After he was injured in a forklift crash, Exide granted him FMLA leave for 10 days while he recovered. Peterson’s manager fire
> The voters of Washington State passed the Medical Use of Marijuana Act (MUMA) which stated that: Humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a pe
> The Tufte family leased a 260-acre farm from the Travelers Insurance Co. Toward the end of the lease, Travelers mailed the Tuftes an option to renew the lease. The option arrived at the Tuftes’ house on March 30, and gave them until April 14 to accept. O
> The Rosenbergs owned a Dairy Queen in Grand Forks, North Dakota. They agreed in writing to sell the Dairy Queen to Mary Pratt. The contract required her to pay $10,000 down and $52,000 over 15 years, at 10 percent interest. Two years later, Pratt assigne
> Mary Johnson signed a contract with Mayflower to perform repair work on her home for a fee of $25,900. Mayflower arranged for Johnson to pay for this work by borrowing money from Sterling Resources. The note she signed with Sterling had an unconscionably
> Steven Vlohotis was a salesman for NESCOR, a home improvement company. He convinced the Antunas to sign a consumer credit contract with NESCOR to install vinyl siding and windows. The contract provided that the Antunas would pay for the improvements in i
> Creative Ventures, LLC (Creative) borrowed nearly $3 million from defendant Jim Ward & Associates (JWA) to buy property in California. Creative signed promissory notes, payable to JWA. Thereafter, JWA sold this entire loan to 54 individual investors (Inv
