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An ordinance of City makes it unlawful to park a motor vehicle on a City street within 10 feet of a fire hydrant. At 1:55 p.m., Parker, realizing that he must be in Bank before it closed at 2:00 p.m., and finding no other space available, parked his automobile in front of a fire hydrant on a City street. Parker then hurried into the bank, leaving his aged neighbor, Ned, as a passenger in the rear seat of the car. About five minutes later, and while Parker was still in Bank, Driver was driving down the street. Driver swerved to avoid what he mistakenly thought was a hole in the street and sideswiped Parker's car. Parker's car was turned over on top of the hydrant, breaking the hydrant and causing a small flood of water. Parker's car was severely damaged and Ned was badly injured. There is no applicable guest statute.". If Parker asserts a claim against Driver for damage to Parker's automobile, the most likely result is that Parker will

0A

train 200

An ordinance of City makes it unlawful to park a motor vehicle on a City street within 10 feet of a fire hydrant. At 1:55 p.m., Parker, realizing that he must be in Bank before it closed at 2:00 p.m., and finding no other space available, parked his automobile in front of a fire hydrant on a City street. Parker then hurried into the bank, leaving his aged neighbor, Ned, as a passenger in the rear seat of the car. About five minutes later, and while Parker was still in Bank, Driver was driving down the street. Driver swerved to avoid what he mistakenly thought was a hole in the street and sideswiped Parker's car. Parker's car was turned over on top of the hydrant, breaking the hydrant and causing a small flood of water. Parker's car was severely damaged and Ned was badly injured. There is no applicable guest statute."If City asserts a claim against Driver for the damage to the fire hydrant and Driver was negligent in swerving his car, his negligence is

0A

train 201

John Smith has denied his purported signature on a letter which has become critical in a breach of contract suit between Smith and Miller. At trial, Miller's counsel calls Alice, a teacher, who testifies that she taught John Smith mathematics in school 10 years earlier, knows his signature, and proposes to testify that the signature to the letter is that of John Smith. Smith's counsel objects. The trial judge should

3D

train 202

Paula sued for injuries she sustained in a fall in a hotel hallway connecting the lobby of the hotel with a restaurant located in the hotel building. The hallway floor was covered with vinyl tile. The defendants were Horne, owner of the hotel building, and Lee, lessee of the restaurant. The evidence was that the hallway floor had been waxed approximately an hour before Paula slipped on it, and although the wax had dried, there appeared to be excessive dried wax caked on several of the tiles. Horne's defense was that the hallway was a part of the premises leased to Lee over which he retained no control, and Lee denied negligence and alleged contributory negligence."Lee offered to prove by Marks, the restaurant manager, that in the week immediately preceding Paula's fall at least 1,000 people had used the hallway in going to and from the restaurant, and Marks had neither seen anyone fall nor received reports that anyone had fallen. The trial judge should rule this evidence

3D

train 203

Paula sued for injuries she sustained in a fall in a hotel hallway connecting the lobby of the hotel with a restaurant located in the hotel building. The hallway floor was covered with vinyl tile. The defendants were Horne, owner of the hotel building, and Lee, lessee of the restaurant. The evidence was that the hallway floor had been waxed approximately an hour before Paula slipped on it, and although the wax had dried, there appeared to be excessive dried wax caked on several of the tiles. Horne's defense was that the hallway was a part of the premises leased to Lee over which he retained no control, and Lee denied negligence and alleged contributory negligence."If Paula offered to prove that the day after she fell Horne had the vinyl tile taken up and replaced with a new floor covering, the trial judge should rule the evidence

0A

train 204

A newly enacted state criminal statute provides, in its entirety, "No person shall utter to another person in a public place any annoying, disturbing, or unwelcome language." Smith followed an elderly woman for three blocks down a public street, yelling in her ear offensive four-letter words. The woman repeatedly asked Smith to leave her alone, but he refused. In the subsequent prosecution of Smith, the first under this statute, Smith

2C

train 205

In which of the following situations is Defendant's claim of intoxication most likely to result in his being found not guilty?

1B

train 206

On May 1, Ohner telegraphed Byer, "Will sell you any or all of the lots in Grover subdivision at $5,000 each. Details will follow in letter." The letter contained all the necessary details concerning terms of payment, insurance, mortgages, etc., and provided, "This offer remains open until June 1." On May 2, after he had received the telegram but before he had received the letter, Byer telegraphed Ohner, "Accept your offer with respect to lot 101." Both parties knew that there were 50 lots in the Grove subdivision and that they were numbered 101 through 150."For this question only, assume that Ohner and Byer were bound by a contract for the sale of lot 101 for $5,000, that on May 3 Ohner telephoned Byer to say that because he had just discovered that a shopping center was going to be erected adjacent to the Grove subdivision, he would "have to have $6,000 for each of the lots including lot 101," that Byer thereupon agreed to pay him $6,000 for lot 101, and that on May 6 Byer telegraphed, "Accept your offer with respect to the rest of the lots." Assuming that two contracts were formed and that there is no controlling statute, Byer will most likely be required to pay

1B

train 207

On May 1, Ohner telegraphed Byer, "Will sell you any or all of the lots in Grover subdivision at $5,000 each. Details will follow in letter." The letter contained all the necessary details concerning terms of payment, insurance, mortgages, etc., and provided, "This offer remains open until June 1." On May 2, after he had received the telegram but before he had received the letter, Byer telegraphed Ohner, "Accept your offer with respect to lot 101." Both parties knew that there were 50 lots in the Grove subdivision and that they were numbered 101 through 150.""For this question only, assume that on May 5 Ohner telephoned Byer to say that he had sold lots 102 through 150 to someone else on May 4, and that Byer thereafter telegraphed Ohner, "Will take the rest of the lots." Assume further that there is no controlling statute. In an action by Byer against Ohner for breach of contract, Byer probably will

3D

train 208

On May 1, Ohner telegraphed Byer, "Will sell you any or all of the lots in Grover subdivision at $5,000 each. Details will follow in letter." The letter contained all the necessary details concerning terms of payment, insurance, mortgages, etc., and provided, "This offer remains open until June 1." On May 2, after he had received the telegram but before he had received the letter, Byer telegraphed Ohner, "Accept your offer with respect to lot 101." Both parties knew that there were 50 lots in the Grove subdivision and that they were numbered 101 through 150."For this question only, assume that on May 6 Byer telegraphed Ohner, "Will take the rest of the lots," and that on May 8 Ohner discovered that he did not have good title to the remaining lots. Which of the following would provide the best legal support for Ohner's contention that he was not liable for breach of contract as to the remaining 49 lots?

2C

train 209

Philip was a 10-year-old boy. Macco was a company that sold new and used machinery. Macco stored discarded machinery, pending sale for scrap, on a large vacant area it owned. This area was unfenced and was one-quarter mile from the housing development where Philip lived. Macco knew that children frequently played in the area and on the machinery. Philip's parents had directed him not to play on the machinery because it was dangerous. One day Philip was playing on a press in Macco's storage area. The press had several wheels, each geared to the next. Philip climbed on the largest wheel, which was about five feet in diameter. Philip's weight caused the wheel to rotate, his foot was caught between two wheels that were set in motion, and he was severely injured. A claim for relief was asserted by Philip through a duly appointed guardian. Macco denied liability and pleaded Philip's contributory fault as a defense. In determining whether Macco breached a duty to Philip, which of the following is the most significant?

3D

train 210

Si was in the act of siphoning gasoline from Neighbor's car in Neighbor's garage and without his consent when the gasoline exploded and a fire followed. Rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving Si's life and Neighbor's car and garage. In doing so, Rescuer was badly burned.If Rescuer asserts a claim against Si for personal injuries, Rescuer will

1B

train 211

Si was in the act of siphoning gasoline from Neighbor's car in Neighbor's garage and without his consent when the gasoline exploded and a fire followed. Rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving Si's life and Neighbor's car and garage. In doing so, Rescuer was badly burned.If Rescuer asserts a claim against Neighbor for personal injuries, Rescuer will

2C

train 212

Defendant was tried for robbery. Victim and Worth were the only witnesses called to testify. Victim testified that Defendant threatened her with a knife, grabbed her purse, and ran off with it. Worth testified that he saw Defendant grab Victim's purse and run away with it but that he neither saw a knife nor heard any threats. On this evidence the jury could properly return a verdict of guilty of

2C

train 213

Congressional legislation authorizing marriages and divorces as a matter of federal law on prescribed terms and conditions could most easily be upheld if it

3D

train 214

Assume for the purposes of these questions that you are counsel to the state legislative committee that is responsible for real estate laws in your state.. The committee wants you to draft a statute governing the recording of deeds that fixes priorities of title, as reflected on the public record, as definitely as possible. Which of the following, divorced from other policy considerations, would best accomplish this particular result?

1B

train 215

Assume for the purposes of these questions that you are counsel to the state legislative committee that is responsible for real estate laws in your state.The committee wants you to draft legislation to make all restrictions on land use imposed by deeds (now or hereafter recorded) unenforceable in the future so that public land-use planning through zoning will have exclusive control in matters of land use. Which of the following is LEAST likely to be a consideration in the drafting of such legislation?

2C

train 216

Price sued Derrick for injuries Price received in an automobile accident. Price claims that Derrick was negligent in (a) exceeding the posted speed limit of 35 m.p.h., (b) failing to keep a lookout, and (c) crossing the center lineBystander, Price's eyewitness, testified on crossexamination that Derrick was wearing a green sweater at the time of the accident. Derrick's counsel calls Wilson to testify that Derrick's sweater was blue. Wilson's testimony is

3D

train 217

Price sued Derrick for injuries Price received in an automobile accident. Price claims that Derrick was negligent in (a) exceeding the posted speed limit of 35 m.p.h., (b) failing to keep a lookout, and (c) crossing the center lineDerrick testified on his own behalf that he was going 30 m.p.h. On cross-examination, Price's counsel did not question Derrick with regard to his speed. Subsequently, Price's counsel calls Officer to testify that, in his investigation following the accident, Derrick told him that he was driving 40 m.p.h. Officer's testimony is

1B

train 218

Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statuteWhich of the following potential plaintiffs is most likely to be able to obtain a judicial determination of the validity of this federal statute?

1B

train 219

Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statuteThe strongest argument that can be made in support of the constitutionality of this federal statute is that

2C

train 220

Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-oriented states in the country, refuses to enact such a statuteThe federal statute relating to disbursement of highway funds conditioned on the 55-m.p.h. speed limit is probably

3D

train 221

Defendant visited a fellow college student, James, in James's dormitory room. They drank some beer. James produced a box containing marijuana cigarettes and asked if Defendant wanted one. Defendant, afraid of being caught, declined and urged James to get rid of the marijuana. James refused. Shortly thereafter, both went out to get more beer, leaving the door to James's room standing open. Making an excuse about having dropped his pen, Defendant went back into James's room. Still apprehensive about their being caught with the marijuana cigarettes, he took the cigarettes and flushed them down the toilet. He was sure James was too drunk to notice that the cigarettes were missing. Defendant is charged with larceny and burglary (the latter defined in the jurisdiction as breaking and entering the dwelling of another with intent to commit any felony or theft). He should be found guilty of

1B

train 222

Henry hated Wanda, his former wife, for divorcing him and marrying John a short time thereafter. About a month after Wanda married John, Henry secretly entered Wanda and John's rented apartment during their absence by using a master key. Henry placed a microphone behind the nightstand in the bedroom of the apartment, drilled a hole in the nearby wall, and poked the wires from the microphone through the hole into the space in the wall, with the result that the microphone appeared to be connected to wires going into the adjoining apartment. Actually the microphone was not connected to anything. Henry anticipated that Wanda would discover the microphone in a few days and would be upset by the thought that someone had been listening to her conversations with John in their bedroom. Shortly thereafter, John noticed the wires behind the nightstand and discovered the hidden microphone. He then called Wanda and showed her the microphone and wires. Wanda fainted and, in falling, struck her head on the nightstand and suffered a mild concussion. The next day John telephoned Henry and accused him of planting the microphone. Henry laughingly admitted it. Because of his concern about Wanda and his anger at Henry, John is emotionally upset and unable to go to work. If Wanda asserts a claim against Henry based on infliction of mental distress, the fact that John was the person who showed her the microphone will

2C

train 223

Trease owned Hilltop in fee simple. By his will, he devised as follows: "Hilltop to such of my grandchildren who shall reach the age of 21; and by 55 this provision I intend to include all grandchildren whenever born." At the time of his death, Trease had three children and two grandchildren. Courts hold such a devise valid under the common law Rule Against Perpetuities. What is the best explanation of that determination?

0A

train 224

Trease owned Hilltop in fee simple. By his will, he devised as follows: "Hilltop to such of my grandchildren who shall reach the age of 21; and by 55 this provision I intend to include all grandchildren whenever born." At the time of his death, Trease had three children and two grandchildrenWhich of the following additions to or changes in the facts of the preceding question would produce a violation of the common law Rule Against Perpetuities?

2C

train 225

Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlement with Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at $1,000, from Doctor, After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract, stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent but failed to inform Doctor of First's promise. "In an action by Doctor against Victim to recover $1,000, Doctor's best theory of recovery is that Doctor

3D

train 226

Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlement with Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at $1,000, from Doctor, After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract, stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent but failed to inform Doctor of First's promise. ". In an action by Doctor against First upon First's employment contract with Victim, First is likely to argue in defense that

3D

train 227

Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlement with Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at $1,000, from Doctor, After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract, stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent but failed to inform Doctor of First's promise. ""In an action by Doctor against First upon First's employment contract with Victim, if First attempts to use Victim's release as a defense, Doctor is likely to argue that

0A

train 228

Victim, injured by Driver in an auto accident, employed attorney First to represent him in the matter. Victim was chronically insolvent and expressed doubt whether he could promptly get necessary medical treatment. Accordingly, First wrote into their contract his promise to Victim "to pay from any settlement with Driver compensation to any physician who provides professional services for Victim's injuries." The contract also provided that First's duties were "nonassignable." First immediately filed suit against Driver. Victim then sought and received medical treatment, reasonably valued at $1,000, from Doctor, After receiving a bill from Doctor for $1,000, Victim immediately wrote Doctor explaining that he was unable to pay and enclosing a copy of his contract with First. Victim then asked First about payment of this bill, but First requested a release from their employment contract, stating that he would like to refer Victim's claim to attorney Second and that Second was willing to represent Victim in the pending lawsuit. Victim wrote a letter to First releasing him from their contract and agreeing to Second's representation. A copy of this letter was sent to Doctor. Second subsequently promised First to represent Victim and soon negotiated a settlement of Victim's claim against Driver which netted $1,000, all of which was paid by Victim to creditors other than Doctor. Victim remains insolvent but failed to inform Doctor of First's promise. "In an action by Doctor against Second, Second is most likely to argue on these facts that

2C

train 229

Peters sued Davis for $100,000 for injuries received in a traffic accident. Davis charged Peters with contributory negligence and alleged that Peters failed to have his lights on at a time when it was dark enough to require them.Davis calls Bystander to testify that Passenger, who was riding in Peters's automobile and who also was injured, confided to Bystander at the scene of the accident that "we should have had our lights on." Bystander's testimony is

2C

train 230

Peters sued Davis for $100,000 for injuries received in a traffic accident. Davis charged Peters with contributory negligence and alleged that Peters failed to have his lights on at a time when it was dark enough to require them.Davis offers to have Bystander testify that he was talking to Witness when he heard the crash and heard Witness, now deceased, exclaim, "That car doesn't have any lights on." Bystander's testimony is

0A

train 231

Owner and his employee, Driver, consult Attorney about a motor vehicle collision resulting in a suit by Litigant against Owner and Driver as joint defendants. Attorney calls Irving, his investigator, into the conference to make notes of what is said, and those present discuss the facts of the collision and Owner's insurance. Owner thereafter files a cross-claim against Driver for indemnity for any damages obtained by LitigantLitigant calls Driver to testify in Litigant's case in chief to admissions made by Owner in the conference. On objection by Owner, the court should rule that Driver's testimony is

2C

train 232

Owner and his employee, Driver, consult Attorney about a motor vehicle collision resulting in a suit by Litigant against Owner and Driver as joint defendants. Attorney calls Irving, his investigator, into the conference to make notes of what is said, and those present discuss the facts of the collision and Owner's insurance. Owner thereafter files a cross-claim against Driver for indemnity for any damages obtained by LitigantDriver calls Irving in his defense against the cross-claim. He seeks to have Irving testify to an admission made by Owner in the conference. On objection by Owner, the court should rule that Irving's testimony is

0A

train 233

Dave is a six-year-old boy who has a well-deserved reputation for bullying younger and smaller children. His parents have encouraged him to be aggressive and tough. Dave, for no reason, knocked down, kicked, and severely injured Pete, a four-year-old boy. A claim for relief has been asserted by Pete's parents for their medical and hospital costs and for Pete's injuries.If the claim is asserted against Dave's parents, the most likely result is that they will be

1B

train 234

Dave is a six-year-old boy who has a well-deserved reputation for bullying younger and smaller children. His parents have encouraged him to be aggressive and tough. Dave, for no reason, knocked down, kicked, and severely injured Pete, a four-year-old boy. A claim for relief has been asserted by Pete's parents for their medical and hospital costs and for Pete's injuries.If the claim is asserted against Dave, the most likely result is that Dave will be

0A

train 235

On March 1, Green and Brown orally agreed that Brown would erect a boathouse on Green's lot and would dig a channel from the boathouse across Clark's lot to a lake. Clark had already orally agreed with Green to permit the digging of the channel across Clark's lot. Brown agreed to begin work on the boathouse on March 15, and to complete all the work before June 1. The total price of $10,000 was to be paid by Green in three installments: $2,500 on March 15, $2,500 when the boathouse was completed, and $5,000 when Brown finished the digging of the channel."Assume that Green tendered the $2,500 on March 15, and that Brown refused to accept it or to perform. In an action by Green against Brown for breach of contract, which of the following can Brown successfully use as a defense? I. The Clark-Green agreement permitting the digging of the channel across Clark's lot was not in writing. II. The Green-Brown agreement was not in writing.

3D

train 236

On March 1, Green and Brown orally agreed that Brown would erect a boathouse on Green's lot and would dig a channel from the boathouse across Clark's lot to a lake. Clark had already orally agreed with Green to permit the digging of the channel across Clark's lot. Brown agreed to begin work on the boathouse on March 15, and to complete all the work before June 1. The total price of $10,000 was to be paid by Green in three installments: $2,500 on March 15, $2,500 when the boathouse was completed, and $5,000 when Brown finished the digging of the channel."Assume that Green paid the $2,500 on March 15 and that Brown completed the boathouse according to specifications, but that Green then refused to pay the second installment and repudiated the contract. Assume further that the absence of a writing is not raised as a defense. Which of the following is/are correct? I. Brown has a cause of action against Green and his damages will be $2,500. II. Brown can refuse to dig the channel and will not be liable for breach of contract.

1B

train 237

On March 1, Green and Brown orally agreed that Brown would erect a boathouse on Green's lot and would dig a channel from the boathouse across Clark's lot to a lake. Clark had already orally agreed with Green to permit the digging of the channel across Clark's lot. Brown agreed to begin work on the boathouse on March 15, and to complete all the work before June 1. The total price of $10,000 was to be paid by Green in three installments: $2,500 on March 15, $2,500 when the boathouse was completed, and $5,000 when Brown finished the digging of the channel.Assume that Green paid the $2,500 on March 15, that Brown completed the boathouse, that Green paid the second installment of $2,500, and that Brown completed the digging of the channel but not until July 1. Assume further that the absence of a writing is not raised as a defense. Which of the following is/are correct? I. Green has a cause of action against Brown for breach of contract. II. Green is excused from paying the $5,000.

0A

train 238

Customer, aged 20, went into Store at approximately 6:45 p.m. to look at some suits that were on sale. The clerks were busy, and one of them told Customer that he should wait on himself. Customer selected three suits from a rack and went into the dressing room to try them on. Signs posted on the walls of Store stated that 58 closing time was 9:00 p.m.; however, because of a special awards banquet for employees, Store was closed at 7:00 p.m. on this day. The employees, in a hurry to get to the banquet, did not check the dressing rooms or turn off the lights before leaving. When Customer emerged from the dressing room a few minutes after 7:00 p.m., he was alone and locked in. Customer tried the front door, but it was secured on the outside by a bar and padlock, so he went to the rear door. Customer grabbed the doorknob and vigorously shook the door. It did not open, but the activity set off a mechanism that had been installed because of several recent thefts committed by persons who had hidden in the store until after closing time. The mechanism sprayed a chemical mist in Customer's face, causing him to become temporarily blind. The mechanism also activated an alarm carried by Store's employee, Watchman, who was just coming to work. Watchman unlocked the front door, ran into the store and grabbed Customer. Customer, who was still unable to see, struck out at this person and hit a metal rack, injuring his hand. Watchman then identified himself, and Customer did the same. After assuring himself that Customer was telling the truth, Watchman allowed him to leave. If Customer is to prevail on a claim against Store based on battery from the use of the chemical spray, Customer must establish that

1B

train 239

Dock was the unsuccessful suitor of Mary, who recently announced her engagement to Paul. Angered by her engagement, Dock sent Mary the following letter: "I hope you know what you are doing. The man you think you love wears women's clothes when at home. A Friend." The receipt of this letter caused Mary great emotional distress. She hysterically telephoned Paul, read him the letter, and told him that she was breaking their engagement. The contents of the letter were not revealed to others Paul, who was a young attorney in the state attorney's office, suffered serious humiliation and emotional distress as a result of the broken engagement. If Paul asserts a claim against Dock based on defamation and it is proved that Dock's statement was true, such proof will be

0A

train 240

Pemberton and three passengers, Able, Baker, and Charley, were injured when their car was struck by a truck owned by Mammoth Corporation and driven by Edwards. Helper, also a Mammoth employee, was riding in the truck. The issues in Pemberton v Mammoth include the negligence of Edwards in driving too fast and failing to wear glasses, and of Pemberton in failing to yield the right of way"Pemberton's counsel proffers evidence showing that shortly after the accident Mammoth put a speed governor on the truck involved in the accident. The judge should rule the proffered evidence

2C

train 241

Pemberton and three passengers, Able, Baker, and Charley, were injured when their car was struck by a truck owned by Mammoth Corporation and driven by Edwards. Helper, also a Mammoth employee, was riding in the truck. The issues in Pemberton v Mammoth include the negligence of Edwards in driving too fast and failing to wear glasses, and of Pemberton in failing to yield the right of way"Pemberton's counsel seeks to introduce Helper's written statement that Edwards, Mammoth's driver, left his glasses (required by his operator's license) at the truck stop when they left it five minutes before the accident. The judge should rule the statement admissible only if

0A

train 242

Pemberton and three passengers, Able, Baker, and Charley, were injured when their car was struck by a truck owned by Mammoth Corporation and driven by Edwards. Helper, also a Mammoth employee, was riding in the truck. The issues in Pemberton v Mammoth include the negligence of Edwards in driving too fast and failing to wear glasses, and of Pemberton in failing to yield the right of way"Mammoth's counsel seeks to have Sheriff testify that while he was investigating the accident he 59 was told by Pemberton, "This was probably our fault." The judge should rule the proffered evidence

0A

train 243

The city of Newtown adopted an ordinance providing that street demonstrations involving more than 15 persons may not be held in commercial areas during "rush" hours. "Exceptions" may be made to the prohibition "upon 24-hour advance application to an approval by the police department." The ordinance also imposes sanctions on any person "who shall, without provocation, use to or of another, and in his presence, opprobrious words or abusive language tending to cause a breach of the peace." The ordinance has not yet had either judicial or administrative interpretation. Which of the following is the strongest argument for the unconstitutionality of both parts of the ordinance on their face?

1B

train 244

While Defendant was in jail on a procuring charge, his landlord called the police because rent had not been paid and because he detected a disagreeable odor coming from Defendant's apartment into the hallways. The police officer who responded to the call knew that Defendant was in jail. He recognized the stench coming from Defendant's apartment as that of decomposing flesh and, without waiting to obtain a warrant and using the landlord's passkey, entered the apartment with the landlord's consent. The lease to these premises gave the landlord a right of entry, at any reasonable hour, for the purpose of making repairs. The police officer found a large trunk in the bedroom which seemed to be the source of the odor. Upon breaking it open, he found the remains of Rosette, Defendant's former mistress. "The landlord's consent to the police officer's search of Defendant's apartment is

3D

train 245

While Defendant was in jail on a procuring charge, his landlord called the police because rent had not been paid and because he detected a disagreeable odor coming from Defendant's apartment into the hallways. The police officer who responded to the call knew that Defendant was in jail. He recognized the stench coming from Defendant's apartment as that of decomposing flesh and, without waiting to obtain a warrant and using the landlord's passkey, entered the apartment with the landlord's consent. The lease to these premises gave the landlord a right of entry, at any reasonable hour, for the purpose of making repairs. The police officer found a large trunk in the bedroom which seemed to be the source of the odor. Upon breaking it open, he found the remains of Rosette, Defendant's former mistress. "If Defendant undertakes to challenge the search of his apartment, he has

1B

train 246

Seller and Buyer execute an agreement for the sale of real property on September 1, 1971. The jurisdiction in which the property is located recognizes the principle of equitable conversion and has no statute pertinent to this problem."Assume for this question only that Seller dies before closing and his will leaves his personal property to Perry and his real property to Rose. 60 There being no breach of the agreement by either party, which of the following is correct?

2C

train 247

Seller and Buyer execute an agreement for the sale of real property on September 1, 1971. The jurisdiction in which the property is located recognizes the principle of equitable conversion and has no statute pertinent to this problem."Assume for this question only that Buyer dies before closing, there being no breach of the agreement by either party. Which of the following is appropriate in most jurisdictions?

0A

train 248

Farquart had made a legally binding promise to furnish his son Junior and the latter's fiancée a house on their wedding day, planned for June 10, 1972. Pursuant to that promise, Farquart telephoned his old contractor-friend Sawtooth on May 1, 1971, and made the following oral agreement €”each making full and accurate written notes thereof: Sawtooth was to cut 30 trees into fireplace logs from a specified portion of a certain oneacre plot owned by Farquart, and Farquart was to pay therefor $20 per tree. Sawtooth agreed further to build a house on the plot conforming to the specifications of Plan OP5 published by Builders, Inc., for a construction price of $18,000. Farquart agreed to make payments of $2,000 on the first of every month for nine months beginning August 1, 1971, upon monthly presentation of a certificate by Builders, Inc., that the specifications of Plan OP5 were being met. Sawtooth delivered the cut logs to Farquart in July 1971, when he also began building the house. Farquart made three $2,000 payments for the work done in July, August, and September 1971, without requiring a certificate. Sawtooth worked through October, but no work was done from November 1, 1971, to the end of February 1972, because of bad weather, and Farquart made no payments during that period. Sawtooth did not object. On March 1, 1972, Sawtooth demanded payment of $2,000; but Farquart refused on the grounds that no construction work had been done for four months and Builders had issued no certificate. Sawtooth thereupon abandoned work and repudiated the agreement. "Assuming that Sawtooth committed a total breach on March 1, 1972, what would be the probable measure of Farquart's damages in an action against Sawtooth for breach of contract?

1B

train 249

Farquart had made a legally binding promise to furnish his son Junior and the latter's fiancée a house on their wedding day, planned for June 10, 1972. Pursuant to that promise, Farquart telephoned his old contractor-friend Sawtooth on May 1, 1971, and made the following oral agreement €”each making full and accurate written notes thereof: Sawtooth was to cut 30 trees into fireplace logs from a specified portion of a certain oneacre plot owned by Farquart, and Farquart was to pay therefor $20 per tree. Sawtooth agreed further to build a house on the plot conforming to the specifications of Plan OP5 published by Builders, Inc., for a construction price of $18,000. Farquart agreed to make payments of $2,000 on the first of every month for nine months beginning August 1, 1971, upon monthly presentation of a certificate by Builders, Inc., that the specifications of Plan OP5 were being met. Sawtooth delivered the cut logs to Farquart in July 1971, when he also began building the house. Farquart made three $2,000 payments for the work done in July, August, and September 1971, without requiring a certificate. Sawtooth worked through October, but no work was done from November 1, 1971, to the end of February 1972, because of bad weather, and Farquart made no payments during that period. Sawtooth did not object. On March 1, 1972, Sawtooth demanded payment of $2,000; but Farquart refused on the grounds that no construction work had been done for four months and Builders had issued no certificate. Sawtooth thereupon abandoned work and repudiated the agreement. "Assuming that Sawtooth committed a total breach on March 1, 1972, and assuming further that he was aware when the agreement was made of the purpose for which Farquart wanted the completed house, which of the following, if true, would best support Farquart's claim for consequential damages on account of delay beyond June 10, 1972, in getting the house finished?

2C

train 250

Farquart had made a legally binding promise to furnish his son Junior and the latter's fiancée a house on their wedding day, planned for June 10, 1972. Pursuant to that promise, Farquart telephoned his old contractor-friend Sawtooth on May 1, 1971, and made the following oral agreement €”each making full and accurate written notes thereof: Sawtooth was to cut 30 trees into fireplace logs from a specified portion of a certain oneacre plot owned by Farquart, and Farquart was to pay therefor $20 per tree. Sawtooth agreed further to build a house on the plot conforming to the specifications of Plan OP5 published by Builders, Inc., for a construction price of $18,000. Farquart agreed to make payments of $2,000 on the first of every month for nine months beginning August 1, 1971, upon monthly presentation of a certificate by Builders, Inc., that the specifications of Plan OP5 were being met. Sawtooth delivered the cut logs to Farquart in July 1971, when he also began building the house. Farquart made three $2,000 payments for the work done in July, August, and September 1971, without requiring a certificate. Sawtooth worked through October, but no work was done from November 1, 1971, to the end of February 1972, because of bad weather, and Farquart made no payments during that period. Sawtooth did not object. On March 1, 1972, Sawtooth demanded payment of $2,000; but Farquart refused on the grounds that no construction work had been done for four months and Builders had issued no certificate. Sawtooth thereupon abandoned work and repudiated the agreement. "What was the probable legal effect of the following? I. Sawtooth's failure to object to Farquart's making no payments on November 1, December 1, January 1, and February 1. II. Farquart's making payments in August through October without requiring a certificate from Builders.

1B

train 251

Construction Company contracted to build a laundry for Wash Company on the latter's vacant lot in a residential area. As a part of its work, Construction Company dug a trench from the partially completed laundry to the edge of a public sidewalk; water pipes were to be installed in the trench. Because of the contour of the land, the trench was dug to a depth ranging from seven to nine feet. Construction Company did not place any barriers around the trench and permitted it to lie open for almost a week while Construction Company waited for delivery of the water pipes. This was known to Wash Company, but it raised no objection. During the time the trench was open, a series of heavy rains fell, causing five feet of surface water to gather in the bottom of the trench. While this condition existed, five-year-old Tommy, who was playing on the vacant lot with friends, stumbled and fell into the trench. Robert, an adult passerby, saw this and immediately lowered himself into the trench to rescue Tommy. However, his doing so caused the rainsoaked walls of the trench to collapse, killing both him and Tommy. In a claim for wrongful death by Tommy's administrator against Construction Company, the most likely result is that the administrator will

0A

train 252

Doctor, a licensed physician, resided in her own home. The street in front of the home had a gradual slope. Doctor's garage was on the street level, with a driveway entrance from the street. At two in the morning, Doctor received an emergency call. She dressed and went to the garage to get her car and found a car parked in front of her driveway. That car was occupied by Parker, who, while intoxicated, had driven to that place and now was in a drunken stupor in the front seat. Unable to rouse Parker, Doctor pushed him into the passenger's side of the front seat and got in on the driver's side. Doctor released the brake and coasted the car down the street, planning to pull into a parking space that was open. When Doctor attempted to stop the car, the brakes failed to work, and the car crashed into the wall of Owner's home, damaging Owner's home and Parker's car and injuring Doctor and Parker. Subsequent examination of the car disclosed that the brake linings were badly worn. A state statute prohibits the operation of a motor vehicle unless the brakes are capable of stopping the vehicle within specified distances at specified speeds. The brakes on Parker's car were incapable of stopping the vehicle within the limits required by the statute. Another state statute makes it a criminal offense to be intoxicated while driving a motor vehicle. If Parker asserts a claim against Doctor for his injuries, Parker will probably

2C

train 253

In a contract suit between Terrell and Ward, Ward testifies that he recalls having his first conversation with Terrell on January 3. When asked how he remembers the date, he answers, "In the conversation, Terrell referred to a story in that day's newspaper announcing my daughter's engagement." Terrell's counsel moves to strike the reference to the newspaper story. The judge should

3D

train 254

Bill and Chuck hated Vic and agreed to start a fight with Vic and, if the opportunity arose, to kill him. Bill and Chuck met Vic in the street outside a bar and began to push him around. Ray, Sam, and Tom, who also hated Vic, stopped to watch. Ray threw Bill a knife. Sam told Bill, "Kill him." Tom, who made no move and said nothing, hoped that Bill would kill Vic with the knife. Chuck held Vic while Bill stabbed and killed him.On a charge of murdering Vic, Sam is

2C

train 255

Bill and Chuck hated Vic and agreed to start a fight with Vic and, if the opportunity arose, to kill him. Bill and Chuck met Vic in the street outside a bar and began to push him around. Ray, Sam, and Tom, who also hated Vic, stopped to watch. Ray threw Bill a knife. Sam told Bill, "Kill him." Tom, who made no move and said nothing, hoped that Bill would kill Vic with the knife. Chuck held Vic while Bill stabbed and killed him.On a charge of murdering Vic, Tom is

0A

train 256

Leonard was the high priest of a small cult of Satan worshippers living in New Arcadia. As a part of the practice of their religious beliefs, a cat was required to be sacrificed to the glory of Satan after a live dissection of the animal in which it endured frightful pain. In the course of such a religious sacrifice, Leonard was arrested on the complaint of the local humane society and charged under a statute punishing cruelty to animals. On appeal, a conviction of Leonard probably will be

1B

train 257

Drew is charged with the murder of Pitt. The prosecutor introduced testimony of a police officer that Pitt told a priest, administering the last rites, "I was stabbed by Drew. Since I am dying, tell him I forgive him." Thereafter, Drew's attorney offers the testimony of Wall that the day before, when Pitt believed he would live, he stated that he had been stabbed by Jack, an old enemy. The testimony of Wall is

1B

train 258

An appropriations act passed by Congress over the President's veto directs that one billion dollars "shall be spent" by the federal government for the development of a new military weapons system, which is available only from the Arms Corporation. On the order of the President, the Secretary of Defense refuses to authorize a contract for purchase of the weapons system. The Arms Corporation sues the Secretary of Defense alleging an unlawful withholding of these federal funds. The strongest constitutional argument for the Arms Corporation is that

1B

train 259

Ohner holds title in fee simple to a tract of 1,500 acres. He wishes to develop the entire tract as a golf course, country club, and residential subdivision. He contemplates forming a corporation to own and operate the golf course and country club; the stock in the corporation will be distributed to the owners of lots in the residential portions of the subdivision, but no obligation to issue the stock is to ripen until all the residential lots are sold. The price of the lots is intended to return enough money to compensate Ohner for the raw land, development costs (including the building of the golf course and the country club facilities), and developer's profit, if all of the lots are sold. Ohner's market analyses indicate that he must create a scheme of development that will offer prospective purchasers (and their lawyers) a very high order of assurance that several aspects will be clearly established: 1. Aside from the country club and golf course, there will be no land use other than for residential use and occupancy in the 1,500 acres. 2. The residents of the subdivision will have unambiguous rights of access to the club and golf course facilities. 3. Each lot owner must have an unambiguous right to transfer the lot to a purchaser with all original benefits. 4. Each lot owner must be obligated to pay annual dues to a pro rata share (based on the number of lots) of the club's annual operating deficit (whether or not such owner desires to make use of club and course facilities)."In the context of all aspects of the scheme, which of the following will offer the best chance of implementing the requirement that each lot owner pay annual dues to support the club and golf course?

0A

train 260

Ohner holds title in fee simple to a tract of 1,500 acres. He wishes to develop the entire tract as a golf course, country club, and residential subdivision. He contemplates forming a corporation to own and operate the golf course and country club; the stock in the corporation will be distributed to the owners of lots in the residential portions of the subdivision, but no obligation to issue the stock is to ripen until all the residential lots are sold. The price of the lots is intended to return enough money to compensate Ohner for the raw land, development costs (including the building of the golf course and the country club facilities), and developer's profit, if all of the lots are sold. Ohner's market analyses indicate that he must create a scheme of development that will offer prospective purchasers (and their lawyers) a very high order of assurance that several aspects will be clearly established: 1. Aside from the country club and golf course, there will be no land use other than for residential use and occupancy in the 1,500 acres. 2. The residents of the subdivision will have unambiguous rights of access to the club and golf course facilities. 3. Each lot owner must have an unambiguous right to transfer the lot to a purchaser with all original benefits. 4. Each lot owner must be obligated to pay annual dues to a pro rata share (based on the number of lots) of the club's annual operating deficit (whether or not such owner desires to make use of club and course facilities)."Of the following, the greatest difficulty that will be encountered in establishing the scheme is that

3D

train 261

Rogers gave Mitchell a power of attorney containing the following provision: My attorney, Mitchell, is specifically authorized to sell and convey any part or all of my real property. Mitchell conveyed part of Rogers's land to Stone by deed in the customary form containing covenants of title. Stone sues Rogers for breach of a covenant. The outcome of Stone's suit will be governed by whether

3D

train 262

Auto Company, a corporation, was a small dealer in big new cars and operated a service department. Peter wanted to ask Mike, the service manager, whether Auto Company would check the muffler on his small foreign car. Peter parked on the street near the service department with the intention of entering that part of the building by walking through one of the three large entrances designed for use by automobiles. There was no street entrance to the service department for individuals, and customers as well as company employees often used the automobile entrances. As Peter reached the building, he glanced behind him to be sure no vehicle was approaching that entrance. Seeing none, he walked through the entrance, but immediately he was struck on the back of the head and neck by the large overhead door which was descending. The blow knocked Peter unconscious and caused permanent damage. Peter did not know how the door was raised and lowered; however, the overhead door was operated by the use of either of two switches in the building. One switch was located in the office of the service manager and the other was located near the door in the service work area for the convenience of the mechanics. On this occasion, no one was in the service work area except three Auto Company mechanics. Mike, who had been in his office, and the three mechanics denied having touched a switch that would have lowered the door. Subsequent investigation showed, however, that the switches were working properly and that all of the mechanisms for moving the door were in good working order. If Peter asserts a claim based on negligence against Auto Company, Peter probably will

1B

train 263

In a trial between Jones and Smith, an issue arose about Smith's ownership of a horse that had caused damage to Jones's crops.Jones offered to testify that he looked up Smith's telephone number in the directory, that he called that number, and that a voice answered, "This is Smith speaking." At this, Jones asked, "Was that your horse that tramped across my cornfield this afternoon?" The voice replied, "Yes." The judge should rule the testimony

0A

train 264

In a trial between Jones and Smith, an issue arose about Smith's ownership of a horse that had caused damage to Jones's crops.Jones seeks to introduce into evidence a photograph of his cornfield in order to depict the nature and extent of the damage done. The judge should rule the photograph

0A

train 265

Defendant, an avid fan of his hometown football team, shot at the leg of a star player for a rival team, intending to injure his leg enough to hospitalize him for a few weeks, but not to kill him. The victim died of loss of blood. Select from the choices (A €“D) the most serious offense of which the defendant could be properly convicted.

2C

train 266

Defendant, a worker in a metalworking shop, had long been teasing Vincent, a young colleague, by calling him insulting names and ridiculing him. One day Vincent responded to the teasing by picking up a metal bar and attacking Defendant. Defendant could have escaped from the shop. He parried the blow with his left arm, and with his right hand struck Vincent a blow on his jaw from which the young man died. Select from the choices (A €“D) the most serious offense of which the defendant could be properly convicted.

3D

train 267

Patty sued Mart Department Store for personal injuries, alleging that while shopping she was knocked to the floor by a merchandise cart being pushed by Handy, a stock clerk, and that as a consequence her back was injured. Handy testified that Patty fell near the cart but was not struck by it. Thirty minutes after Patty's fall, Handy, in accordance with regular practice at Mart, filled out a printed form, "Employee's Report of Accident €”Mart Department Store," in which he stated that Patty had been leaning over to spank her young child and in so doing had fallen near his cart. Counsel for Mart offers in evidence the report, which was given to him by Handy's supervisor. The judge should rule the report offered by Mart

2C

train 268

Householder hired Contractor to remodel Householder's kitchen. She had learned of Contractor through a classified advertisement he placed in the local newspaper. During the telephone conversation in which she hired him, Contractor stated that he was experienced and qualified to do all necessary work. Because of Contractor's low charge for his work, he and Householder agreed in writing that on acceptance of his job by Householder, Contractor would have no further liability to her or to anyone else for any defects in materials or workmanship, and that she would bear all such costs. Householder purchased a dishwasher manufactured by Elex Company from Dealer, who was in the retail electrical appliance business. The dishwasher was sold by Dealer with only the manufacturer's warranty and with no warranty by Dealer; Elex Company restricted its warranty to ninety days on parts and labor. Contractor installed the dishwasher Two months after Householder accepted the entire job, she was conversing in her home with Accountant, an acquaintance who had agreed to prepare her income tax return gratuitously. As they talked, they noticed that the dishwasher was operating strangely, repeatedly stopping and starting. At Householder's request, Accountant gave it a cursory examination and, while inspecting it, received a violent electrical shock which did him extensive harm. The dishwasher had an internal wiring defect which allowed electrical current to be carried into the framework and caused the machine to malfunction. The machine had not been adequately grounded by Contractor during installation; if it had been, the current would have been led harmlessly away. The machine carried instructions for correct grounding, which Contractor had not followed. If Accountant asserts a claim based on strict liability against Elex Company for damages, the probable result is that Accountant will

0A

train 269

The State of Missoula has enacted a new election code designed to increase voter responsibility in the exercise of the franchise and to enlarge citizen participation in the electoral process. None of its provisions conflicts with federal statutes.Which of the following is the strongest reason for finding unconstitutional a requirement in the Missoula election code that each voter must be literate in English?

3D

train 270

The State of Missoula has enacted a new election code designed to increase voter responsibility in the exercise of the franchise and to enlarge citizen participation in the electoral process. None of its provisions conflicts with federal statutes.The Missoula election code provides that in a special-purpose election for directors of a state watershed improvement district, the franchise is limited to landowners within the district, because they are the only ones directly affected by the outcome. Each vote is weighted according to the proportion of the holding of that individual in relation to the total affected property. The best argument in support of the statute and against the application of the "one man, one vote" principle in this situation is that the principle

2C

train 271

Testator devised his farm "to my son, Selden, for life, then to Selden's children and their heirs and assigns." Selden, a widower, had two unmarried adult children In appropriate action to construe the will, the court will determine that the remainder to children is

2C

train 272

Alpha and Beta made a written contract pursuant to which Alpha promised to convey a specified apartment house to Beta in return for Beta's promise (1) to convey a 100-acre farm to Alpha and (2) to pay Alpha $1,000 in cash six months after the exchange of the apartment house and the farm. The contract contained the following provision: "It is understood and agreed that Beta's obligation to pay the $1,000 six months after the exchange of the apartment house and the farm shall be voided if Alpha has not, within three months after the aforesaid exchange, removed the existing shed in the parking area in the rear of the said apartment house.""Which of the following statements concerning the order of performances is LEAST accurate?

2C

train 273

Alpha and Beta made a written contract pursuant to which Alpha promised to convey a specified apartment house to Beta in return for Beta's promise (1) to convey a 100-acre farm to Alpha and (2) to pay Alpha $1,000 in cash six months after the exchange of the apartment house and the farm. The contract contained the following provision: "It is understood and agreed that Beta's obligation to pay the $1,000 six months after the exchange of the apartment house and the farm shall be voided if Alpha has not, within three months after the aforesaid exchange, removed the existing shed in the parking area in the rear of the said apartment house.""Alpha's removal of the shed from the parking area of the apartment house is

0A

train 274

Johnson took a diamond ring to a pawnshop and borrowed $20 on it. It was agreed that the loan was to be repaid within 60 days and if it was not, the pawnshop owner, Defendant, could sell the ring. A week before expiration of the 60 days, Defendant had an opportunity to sell the ring to a customer for $125. He did so, thinking it unlikely that Johnson would repay the loan and that if he did, Defendant would be able to handle him somehow, even by paying him for the ring if necessary. Two days later, Johnson came in with the money to reclaim his ring. Defendant told him that it had been stolen when his shop was burglarized one night and that therefore he was not responsible for its loss. Larceny, embezzlement, and false pretenses are separate crimes in the jurisdiction."It is most likely that Defendant has committed which of the following crimes?

1B

train 275

Johnson took a diamond ring to a pawnshop and borrowed $20 on it. It was agreed that the loan was to be repaid within 60 days and if it was not, the pawnshop owner, Defendant, could sell the ring. A week before expiration of the 60 days, Defendant had an opportunity to sell the ring to a customer for $125. He did so, thinking it unlikely that Johnson would repay the loan and that if he did, Defendant would be able to handle him somehow, even by paying him for the ring if necessary. Two days later, Johnson came in with the money to reclaim his ring. Defendant told him that it had been stolen when his shop was burglarized one night and that therefore he was not responsible for its loss. Larceny, embezzlement, and false pretenses are separate crimes in the jurisdiction."Suppose in the case above, instead of denying liability, Defendant told Johnson the truth €”that he sold the ring because he thought Johnson would not reclaim it €”and offered to give Johnson $125. Johnson demanded his ring. Defendant said, "Look, buddy, that's what I got for it, and it's more than it's worth." Johnson reluctantly took the money. Defendant could most appropriately be found guilty of

1B

train 276

Brown contended that Green owed him $6,000. Green denied that he owed Brown anything. Tired of the dispute, Green eventually signed a promissory note by which he promised to pay Brown $5,000 in settlement of their dispute. In an action by Brown against Green on the promissory note, which of the following, if true, would afford Green the best defense?

1B

train 277

Mrs. Ritter, a widow, recently purchased a new uncrated electric range for her kitchen from Local Retailer. The range has a wide oven with a large oven door. The crate in which Stove Company, the manufacturer, shipped the range to Local Retailer carried a label with a warning that the stove would tip over with a weight of 25 pounds or more on the oven door. Mrs. Ritter has one child €”Brenda, age three. Recently, at about 5:30 p.m., Brenda was playing on the floor of the kitchen while Mrs. Ritter was heating water in a pan on the stove. The telephone rang and Mrs. Ritter went into the living room to answer it. While she was gone, Brenda decided to find out what was cooking. She opened the oven door and climbed on it to see what was in the pan. Brenda's weight (25 pounds) on the door caused the stove to tip over forward. Brenda fell to the floor and the hot water spilled over her, burning her severely. Brenda screamed. Mrs. Ritter ran to the kitchen and immediately gave her first aid treatment for burns. Brenda thereafter received medical treatment. Brenda's burns were painful. They have now healed and do not bother her, but she has ugly scars on her legs and back. Brenda's claim is asserted on her behalf by the proper party."If Brenda asserts a claim based on strict liability against Stove Company, she must establish that

3D

train 278

Mrs. Ritter, a widow, recently purchased a new uncrated electric range for her kitchen from Local Retailer. The range has a wide oven with a large oven door. The crate in which Stove Company, the manufacturer, shipped the range to Local Retailer carried a label with a warning that the stove would tip over with a weight of 25 pounds or more on the oven door. Mrs. Ritter has one child €”Brenda, age three. Recently, at about 5:30 p.m., Brenda was playing on the floor of the kitchen while Mrs. Ritter was heating water in a pan on the stove. The telephone rang and Mrs. Ritter went into the living room to answer it. While she was gone, Brenda decided to find out what was cooking. She opened the oven door and climbed on it to see what was in the pan. Brenda's weight (25 pounds) on the door caused the stove to tip over forward. Brenda fell to the floor and the hot water spilled over her, burning her severely. Brenda screamed. Mrs. Ritter ran to the kitchen and immediately gave her first aid treatment for burns. Brenda thereafter received medical treatment. Brenda's burns were painful. They have now healed and do not bother her, but she has ugly scars on her legs and back. Brenda's claim is asserted on her behalf by the proper party."If Brenda asserts a claim based on strict liability against Local Retailer, she must establish that

1B

train 279

The State of Yuma provides by statute, "No person may be awarded any state construction contract without agreeing to employ only citizens of the state and of the United States in performance of the contract."In evaluating the constitutionality of this state statute under the supremacy clause, which of the following would be most directly relevant?

1B

train 280

The State of Yuma provides by statute, "No person may be awarded any state construction contract without agreeing to employ only citizens of the state and of the United States in performance of the contract."If the Yuma statute is attacked as violating the commerce clause, which of the following defenses is the WEAKEST?

0A

train 281

The State of Yuma provides by statute, "No person may be awarded any state construction contract without agreeing to employ only citizens of the state and of the United States in performance of the contract."Suppose the state supreme court declares the statute to be unconstitutional on the grounds that it violates the privileges and immunities clause of the Fourteenth Amendment to the federal Constitution and the equal protection clause of the state constitution. If the state seeks review in the United States Supreme Court, which of the following statements is most accurate?

3D

train 282

Allen and Barker are equal tenants in common of a strip of land 10 feet wide and 100 feet deep which lies between the lots on which their respective homes are situated. Both Allen and Barker need the use of the 10-foot strip as a driveway, and each fears that a new neighbor might seek partition and leave him with an unusable five-foot strip. The best advice about how to solve their problem is

2C

train 283

Mrs. Dennis's 12-year-old daughter, Gala, had some difficulty getting along with other children in the neighborhood, especially with the younger ones. Thinking the experience would be good for her, Mrs. Dennis recommended Gala to Mr. Parrent as a babysitter for his five-year-old boy, Robby, but did not mention Gala's difficulties or her lack of prior experience as a babysitter. The Dennises and the Parrents were longstanding social acquaintances. On the evening Gala was 69 to sit, the Parrents told Gala that she should treat Robby firmly, but that it would be preferable not to spank him since he did not take kindly to such treatment. They did not tell Gala that they had experienced trouble retaining babysitters because of Robby's temper tantrums. Later in the evening, when Robby became angry upon being told to go to his room for being naughty, Gala spanked him, but only moderately hard. Robby then threw a hardback book at Gala, hitting her in the eye. As Gala tried to catch Robby to take him to his room, Robby fled around the house and out the back door, knocking over and breaking an expensive lamp. The backyard was completely dark. Gala heard Robby screaming and banging at the back door, which had closed and locked automatically, but she did nothing. After twenty minutes had passed, she heard a banging and crying at the front door, but still she did nothing. Then the noise stopped. In a few minutes Gala went outside and found Robby lying on the steps unconscious and injured If a claim is asserted on behalf of Robby against Mrs. Dennis for damages based on Gala's conduct, Mrs. Dennis will probably be liable, because

3D

train 284

Professor James said to Mary Digit, president of the X-L Secretarial Service, "Since you folks have done good typing work for me in the past, I promise to bring you the manuscript for my new book." "When?" asked Mary Digit. "First chapter next Monday," replied James. "Wouldn't that be nice," said Mary Digit. The following Monday, James, forgoing the services of another secretarial service, brought the first chapter to the X-L office, but Mary Digit refused to take it, saying that they were all booked up for three weeks. Which of the following facts or inferences would be most helpful in an action by James against X-L?

0A

train 285

In 1967 Owen held Blackacre, a tract of land, in fee simple absolute. In that year he executed and delivered to Price a quitclaim deed which purported to release and quitclaim to Price all of the right, title, and interest of Owen in Blackacre. Price accepted the quitclaim and placed the deed in his safe deposit box. Owen was indebted to Crider in the amount of $35,000. In September 1971, Owen executed and delivered to Crider a warranty deed, purporting to convey the fee simple to Blackacre, in exchange for a full release of the debt he owed to Crider. Crider immediately recorded his deed. In December 1971, Price caused his quitclaim deed to Blackacre to be recorded and notified Crider that he (Price) claimed title. Assume that there is no evidence of occupancy of Blackacre and assume, further, that the jurisdiction where Blackacre is situated has a recording statute which requires good faith and value as elements of the junior claimant's priority. Which of the following is the best comment concerning the conflicting claims of Price and Crider?

1B

train 286

Hank owned a secondhand goods store. He often placed merchandise on the sidewalk, sometimes for short intervals, sometimes from 7 a.m. until 6 p.m. Pedestrians from time to time stopped and gathered to look at the merchandise. Fred had moved into an apartment which was 70 situated immediately above Hank's store; a street-level stairway entrance was located about 20 feet to the east. On several occasions, Fred had complained to Hank about the situation because not only were his view and peace of mind affected, but his travel on the sidewalk was made more difficult. Fred owned and managed a restaurant two blocks to the west of his apartment and made frequent trips back and forth. There was a back entrance to his apartment through a parking lot; this entrance was about 200 feet farther in walking distance from his restaurant. Once Fred complained to the police, whereupon Hank was arrested under a local ordinance which prohibited the placing of goods or merchandise on public sidewalks and imposed, as its sole sanction, a fine for its violation. One day, the sidewalk in front of Hank's store was unusually cluttered because he was cleaning and mopping the floor of his shop. Fred and his 15-year-old son, Steve, saw a bus they wished to take, and they raced down the stairs and onto the cluttered sidewalk in front of Hank's store, Fred in the lead. While dodging merchandise and people, Fred fell. Steve tripped over him and suffered a broken arm. Fred also suffered broken bones and was unable to attend to his duties for six weeks. If, prior to the day of his personal injuries, Fred had asserted a claim based on public nuisance for injunctive relief against Hank for his obstruction of the sidewalk in violation of the ordinance, the defense on which Hank would have most likely prevailed is that

3D

train 287

By way of a gift, Pat executed a deed naming his daughter, Marian, as grantee. The deed contained descriptions as follows: (1) All of my land and dwelling known as 44 Main Street, Midtown, United States, being one acre (2) All that part of my farm, being a square with 200-foot sides, the southeast corner of which is in the north line of my neighbor, Julia Brown. The deed contained covenants of general warranty, quiet enjoyment, and right to convey. Pat handed the deed to Marian, who immediately returned it to her father for safekeeping. Her father kept it in his safe deposit box. The deed was not recorded. The property at 44 Main Street covered 7/8 of an acre of land, had a dwelling and a garage situated thereon, and was subject to a right of way, described in prior deeds, in favor of Jack, a neighbor. Pat owned no other land on Main Street. Jack had not used the right of way for 10 years, and it was not visible on inspection of the property."The description of 44 Main Street was

0A

train 288

By way of a gift, Pat executed a deed naming his daughter, Marian, as grantee. The deed contained descriptions as follows: (1) All of my land and dwelling known as 44 Main Street, Midtown, United States, being one acre (2) All that part of my farm, being a square with 200-foot sides, the southeast corner of which is in the north line of my neighbor, Julia Brown. The deed contained covenants of general warranty, quiet enjoyment, and right to convey. Pat handed the deed to Marian, who immediately returned it to her father for safekeeping. Her father kept it in his safe deposit box. The deed was not recorded. The property at 44 Main Street covered 7/8 of an acre of land, had a dwelling and a garage situated thereon, and was subject to a right of way, described in prior deeds, in favor of Jack, a neighbor. Pat owned no other land on Main Street. Jack had not used the right of way for 10 years, and it was not visible on inspection of the property."The description of part of Pat's farm

3D

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Dann, who was charged with the crime of assaulting Smith, admitted striking Smith but claimed to have acted in self-defense when he was attacked by Smith, who was drunk and belligerent after a football game."Dann offered the testimony of Employer, who would say that he had known and employed Dann for 12 years and knew Dann's reputation among the people with whom he lived and worked to be that of a peaceful, law-abiding, nonviolent person. The trial judge should rule this testimony

0A

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Dann, who was charged with the crime of assaulting Smith, admitted striking Smith but claimed to have acted in self-defense when he was attacked by Smith, who was drunk and belligerent after a football game.On cross-examination of Employer, the state's attorney asked Employer if he had heard that Dann often engaged in fights and brawls. The trial judge should rule the question

1B

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Dann, who was charged with the crime of assaulting Smith, admitted striking Smith but claimed to have acted in self-defense when he was attacked by Smith, who was drunk and belligerent after a football game.Dann's friend Frank was called to testify that Smith had a reputation among the people with whom he lived and worked for law-breaking and frequently engaging in brawls. The trial judge should rule the testimony

0A

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As part of a comprehensive federal aid-to-education program, Congress included the following provisions as conditions for state receipt of federal funds: (1) Whenever textbooks are provided to students without charge, they must include no religious instruction and must be made available on the same terms to students in all public and private schools accredited by the state educational authority. (2) Salary supplements can be paid to teachers in public and private schools, up to 10 percent of existing salary schedules, where present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. (3) Construction grants can be made toward the cost of physical plant at private colleges and universities, provided that no part of the grant is used for buildings in which instruction in religious subject matters is offered.". Federal taxpayer Allen challenges the provision that allows the distribution of free textbooks to students in a private school where religious instruction is included in the curriculum. On the question of the adequacy of Allen's standing to raise the constitutional question, the most likely result is that standing will be

1B

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As part of a comprehensive federal aid-to-education program, Congress included the following provisions as conditions for state receipt of federal funds: (1) Whenever textbooks are provided to students without charge, they must include no religious instruction and must be made available on the same terms to students in all public and private schools accredited by the state educational authority. (2) Salary supplements can be paid to teachers in public and private schools, up to 10 percent of existing salary schedules, where present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. (3) Construction grants can be made toward the cost of physical plant at private colleges and universities, provided that no part of the grant is used for buildings in which instruction in religious subject matters is offered."Federal taxpayer Bates challenges the salary supplements for teachers in private schools where religious instruction is included in the curriculum. On the substantive constitutional issue, the most likely result is that the salary supplements will be

3D

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As part of a comprehensive federal aid-to-education program, Congress included the following provisions as conditions for state receipt of federal funds: (1) Whenever textbooks are provided to students without charge, they must include no religious instruction and must be made available on the same terms to students in all public and private schools accredited by the state educational authority. (2) Salary supplements can be paid to teachers in public and private schools, up to 10 percent of existing salary schedules, where present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. (3) Construction grants can be made toward the cost of physical plant at private colleges and universities, provided that no part of the grant is used for buildings in which instruction in religious subject matters is offered."Federal taxpayer Bates also challenges the construction grants to church-operated private colleges and universities. The most likely result is that the construction grants will be

0A

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On November 1, the following notice was posted in a privately operated law school: The faculty, seeking to encourage legal research, offers to any student at this school who wins the current National Obscenity Law Competition the additional prize of $500. All competing papers must be submitted to the Dean's office before May 1. (The National Competition was conducted by an outside agency unconnected with any law school.) Student read this notice on November 2, and thereupon intensified his effort to make his paper on obscenity law, which he had started in October, a winner. Student also left on a counter in the Dean's office a signed note saying, "I accept the faculty's $500 Obscenity Competition offer." This note was inadvertently placed in Student's file and never reached the Dean or any faculty member personally. On the following April 1, the above notice was removed and the following substituted therefor: The faculty regrets that our offer regarding the National Obscenity Law Competition must be withdrawn. Student's paper was submitted through the Dean's office on April 15. On May 1, it was announced that Student had won the National Obscenity Law Competition and the prize of $1,000. The law faculty refused to pay anything."Assuming that the faculty's notice of November 1 was posted on a bulletin board or other conspicuous place commonly viewed by all persons in the law school, such notice constituted a

1B

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On November 1, the following notice was posted in a privately operated law school: The faculty, seeking to encourage legal research, offers to any student at this school who wins the current National Obscenity Law Competition the additional prize of $500. All competing papers must be submitted to the Dean's office before May 1. (The National Competition was conducted by an outside agency unconnected with any law school.) Student read this notice on November 2, and thereupon intensified his effort to make his paper on obscenity law, which he had started in October, a winner. Student also left on a counter in the Dean's office a signed note saying, "I accept the faculty's $500 Obscenity Competition offer." This note was inadvertently placed in Student's file and never reached the Dean or any faculty member personally. On the following April 1, the above notice was removed and the following substituted therefor: The faculty regrets that our offer regarding the National Obscenity Law Competition must be withdrawn. Student's paper was submitted through the Dean's office on April 15. On May 1, it was announced that Student had won the National Obscenity Law Competition and the prize of $1,000. The law faculty refused to pay anything."As to Student, was the offer effectively revoked?

2C

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On November 1, the following notice was posted in a privately operated law school: The faculty, seeking to encourage legal research, offers to any student at this school who wins the current National Obscenity Law Competition the additional prize of $500. All competing papers must be submitted to the Dean's office before May 1. (The National Competition was conducted by an outside agency unconnected with any law school.) Student read this notice on November 2, and thereupon intensified his effort to make his paper on obscenity law, which he had started in October, a winner. Student also left on a counter in the Dean's office a signed note saying, "I accept the faculty's $500 Obscenity Competition offer." This note was inadvertently placed in Student's file and never reached the Dean or any faculty member personally. On the following April 1, the above notice was removed and the following substituted therefor: The faculty regrets that our offer regarding the National Obscenity Law Competition must be withdrawn. Student's paper was submitted through the Dean's office on April 15. On May 1, it was announced that Student had won the National Obscenity Law Competition and the prize of $1,000. The law faculty refused to pay anything."The offer proposed a

0A

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On November 1, the following notice was posted in a privately operated law school: The faculty, seeking to encourage legal research, offers to any student at this school who wins the current National Obscenity Law Competition the additional prize of $500. All competing papers must be submitted to the Dean's office before May 1. (The National Competition was conducted by an outside agency unconnected with any law school.) Student read this notice on November 2, and thereupon intensified his effort to make his paper on obscenity law, which he had started in October, a winner. Student also left on a counter in the Dean's office a signed note saying, "I accept the faculty's $500 Obscenity Competition offer." This note was inadvertently placed in Student's file and never reached the Dean or any faculty member personally. On the following April 1, the above notice was removed and the following substituted therefor: The faculty regrets that our offer regarding the National Obscenity Law Competition must be withdrawn. Student's paper was submitted through the Dean's office on April 15. On May 1, it was announced that Student had won the National Obscenity Law Competition and the prize of $1,000. The law faculty refused to pay anything."The promise of the faculty on November 1 was

1B

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