Chapter 16 The Writing Requirement and Electronic Records Review the following hypothetical and ans ...
Chapter 16 The Writing Requirement and Electronic Records Review the following hypothetical and answer the question below by typing your response in the space provided. On January 2, Wabash Construction Company, a general contractor, executed a written contract with Anderson Brick, Inc., a subcontractor. The contract relates to a major “strip mall” building project in Morgantown , and Wabash faces a deadline of October 31 in its contract with The Mackie Consortium, L.L.C., the owners of the new mall. In the agreement between Wabash and Anderson , the parties stipulate that “time is of the essence” in terms of performance of the bricklaying work, and that the deadline for Anderson ’s completion of the bricklaying work is July 15. There is also a “liquidated damages” clause in the contract between Wabash and Anderson , indicating that if the work is not completed by July 15, Anderson will pay $2,000 in damages for every day the bricklaying is not completed beyond July 15. Anderson does not complete the bricklaying work by July 15. In fact, the project is not finished until August 30, and Wabash now claims liquidated damages from Anderson in the amount of $92,000 (representing 46 days beyond the July 15 deadline, multiplied by $2,000 per day.) Anderson refuses to pay the $92,000, and Wabash sues. At trial, Anderson’s attorney seeks to introduce the following evidence: 1) the testimony of Henry Anderson, Anderson’s owner, who is willing to testify under oath that at the time of the signing of the contract, Wabash’s general manager, Fred Stein, said “Pay no attention to the July 15 deadline in the contract; if you need more time, all you have to do is ask;” and 2) a crumpled index card, purportedly in Fred Stein’s handwriting, indicating “no ‘hard and fast’ deadline on Anderson brick work.” 1. Should the trial court judge admit the foregoing evidence? Explain your answer. Chapter 16 (Third Party Rights) Instructions: Review the questions below and type your responses into a MICROSOFT WORD DOCUMENT. Remember to individually number each response. Upload the document into Blackboard. NOTE: Please do not upload documents in any other format as Blackboard will not recognize them. Facts : Ralph calls Pendrake's Pest Control and schedules an appointment on Friday to have his home and yard treated for termites. However, on Thursday, Pendrake realizes that he has overbooked his appointments for Friday and simply doesn't have time to treat Ralph's home. Instead, he calls a competing pest control service, Mandrake's Termite Control, and delegates the job to them. On Friday, Mandrake arrives at the house and begins treating it for termites. Ralph walks outside and demands to know why Pendrake isn't there doing the work. Mandrake shrugs and says, "he gave the job to us" and completes his work. 1. When Pendrake sends the termite treatment bill, Ralph refuses to pay on the grounds that he signed an agreement with Pendrake - not Mandrake. Further, Ralph argues, if Pendrake wanted to give the job to someone else, "you should have asked for my permission!" If Pendrake sues Ralph for breach of contract, what is the likely result? Explain your response. 2. Suppose Mandrake used an inferior grade pesticide and, as a result, killed nearly all of the decorative landscaping (flowers, shrubbery, etc.) around Ralph's house. If Ralph sues Pendrake for the damages, what is the likely result? Explain.
