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Owner held 500 acres in fee simple absolute. In 1960 Owner platted and obtained all required governmental approvals of two subdivisions of 200 acres each. In 1960 and 1961 commercial buildings and parking facilities were constructed on one subdivision, Royal Center, in accordance with the plans disclosed by the plat for that subdivision. Royal Center continues to be used for commercial purposes. The plat of the other subdivision, Royal Oaks, showed 250 lots, streets, and utility and drainage easements. All of the lots in Royal Oaks were conveyed during 1960 and 1961. The deeds contained provisions, expressly stated to be binding upon the grantee and the grantee's heirs and assigns, requiring the lots to be used only for single-family, residential purposes until 1985. The deeds expressly stated that these provisions were enforceable by the owner of any lot in the Royal Oaks subdivision. At all times since 1949, the 200 acres of Royal Center have been zoned for shopping center use, and the 200 acres in Royal Oaks have been zoned for residential use in a classification which permits both singlefamily and multiple-family use."In an appropriate attack upon the limitation to residential use by single families, if the evidence disclosed no fact in addition to those listed above, the most probable judicial resolution would be that

2C

train 300

Owner held 500 acres in fee simple absolute. In 1960 Owner platted and obtained all required governmental approvals of two subdivisions of 200 acres each. In 1960 and 1961 commercial buildings and parking facilities were constructed on one subdivision, Royal Center, in accordance with the plans disclosed by the plat for that subdivision. Royal Center continues to be used for commercial purposes. The plat of the other subdivision, Royal Oaks, showed 250 lots, streets, and utility and drainage easements. All of the lots in Royal Oaks were conveyed during 1960 and 1961. The deeds contained provisions, expressly stated to be binding upon the grantee and the grantee's heirs and assigns, requiring the lots to be used only for single-family, residential purposes until 1985. The deeds expressly stated that these provisions were enforceable by the owner of any lot in the Royal Oaks subdivision. At all times since 1949, the 200 acres of Royal Center have been zoned for shopping center use, and the 200 acres in Royal Oaks have been zoned for residential use in a classification which permits both singlefamily and multiple-family use."For this question only, assume that Owner now desires to open his remaining 100 acres as a residential subdivision of 125 lots (with appropriate streets, etc.). He has, as an essential element of his scheme, the feature that the restrictions should be identical with those he planned for the original Royal Oaks residential subdivision and, further, that lot owners in Royal Oaks should be able to enforce (by lawsuits) restrictions on the lots in the 100 acres. The zoning for the 100 acres is identical with that for the 200 acres of Royal Oaks residential subdivision. Which of the following best states the chance of success for his scheme?

3D

train 301

A state accredits both public and private schools, licenses their teachers, and supplies textbooks on secular subjects to all such schools. Country Schoolhouse, a private school that offers elementary and secondary education in the state, denies admission to all non-Caucasians. In a suit to enjoin as unconstitutional the continued racially exclusionary admissions policy of the Country Schoolhouse, which of the following is the strongest argument AGAINST the school?

1B

train 302

Paul and Daniel entered into a contract in writing on November 1, the essential part of which read as follows: "Paul to supply Daniel with 200 personalized Christmas cards bearing a photograph of Daniel and his family on or before December 15, 1970, and Daniel to pay $100 30 days thereafter. Photograph to be taken by Paul at Daniel's house. Cards guaranteed to be fully satisfactory and on time." Because Daniel suddenly became ill, Paul was unable to take the necessary photograph of Daniel and his family until the first week of December. The final week's delay was caused by Paul's not being notified promptly by Daniel of his recovery. Before taking the photograph of Daniel and his family, Paul advised Daniel that he was likely to be delayed a day or two beyond December 15 in making delivery because of the time required to process the photograph and cards. Daniel told Paul to take the photograph anyway. The cards were finally delivered by Paul to Daniel on December 17, Paul having diligently worked on them in the interim. Although the cards pleased the rest of the family, Daniel refused to accept them because, as he said, squinting at one of the cards at arm's length without bothering to put on his reading glasses, "The photograph makes me look too old. Besides, the cards weren't delivered on time.""In an action by Paul against Daniel, which of the following would be Daniel's best defense?

1B

train 303

Paul and Daniel entered into a contract in writing on November 1, the essential part of which read as follows: "Paul to supply Daniel with 200 personalized Christmas cards bearing a photograph of Daniel and his family on or before December 15, 1970, and Daniel to pay $100 30 days thereafter. Photograph to be taken by Paul at Daniel's house. Cards guaranteed to be fully satisfactory and on time." Because Daniel suddenly became ill, Paul was unable to take the necessary photograph of Daniel and his family until the first week of December. The final week's delay was caused by Paul's not being notified promptly by Daniel of his recovery. Before taking the photograph of Daniel and his family, Paul advised Daniel that he was likely to be delayed a day or two beyond December 15 in making delivery because of the time required to process the photograph and cards. Daniel told Paul to take the photograph anyway. The cards were finally delivered by Paul to Daniel on December 17, Paul having diligently worked on them in the interim. Although the cards pleased the rest of the family, Daniel refused to accept them because, as he said, squinting at one of the cards at arm's length without bothering to put on his reading glasses, "The photograph makes me look too old. Besides, the cards weren't delivered on time.""Which of the following statements is most accurate?

3D

train 304

Paul and Daniel entered into a contract in writing on November 1, the essential part of which read as follows: "Paul to supply Daniel with 200 personalized Christmas cards bearing a photograph of Daniel and his family on or before December 15, 1970, and Daniel to pay $100 30 days thereafter. Photograph to be taken by Paul at Daniel's house. Cards guaranteed to be fully satisfactory and on time." Because Daniel suddenly became ill, Paul was unable to take the necessary photograph of Daniel and his family until the first week of December. The final week's delay was caused by Paul's not being notified promptly by Daniel of his recovery. Before taking the photograph of Daniel and his family, Paul advised Daniel that he was likely to be delayed a day or two beyond December 15 in making delivery because of the time required to process the photograph and cards. Daniel told Paul to take the photograph anyway. The cards were finally delivered by Paul to Daniel on December 17, Paul having diligently worked on them in the interim. Although the cards pleased the rest of the family, Daniel refused to accept them because, as he said, squinting at one of the cards at arm's length without bothering to put on his reading glasses, "The photograph makes me look too old. Besides, the cards weren't delivered on time.""Which of the following statements regarding the legal effect of Daniel's illness is LEAST accurate?

2C

train 305

Carr ran into and injured Pedersen, a pedestrian. With Carr in his car were Wanda and Walter Passenger. Passerby saw the accident and called the police department, which sent Sheriff to investigate. All of these people were available as potential witnesses in the case of Pedersen v. Carr. Pedersen alleges that Carr, while drunk, struck Pedersen, who was in a duly marked crosswalk.Pedersen's counsel wishes to prove that after the accident Carr went to Pedersen and offered $1,000 to settle Pedersen's claim. The trial judge should rule this evidence

3D

train 306

Carr ran into and injured Pedersen, a pedestrian. With Carr in his car were Wanda and Walter Passenger. Passerby saw the accident and called the police department, which sent Sheriff to investigate. All of these people were available as potential witnesses in the case of Pedersen v. Carr. Pedersen alleges that Carr, while drunk, struck Pedersen, who was in a duly marked crosswalk.Pedersen's counsel wants to have Sheriff testify to the following statement made to him by Walter Passenger, out of the presence of Carr: "We were returning from a party at which we had all been drinking." The trial judge should rule this testimony

2C

train 307

Carr ran into and injured Pedersen, a pedestrian. With Carr in his car were Wanda and Walter Passenger. Passerby saw the accident and called the police department, which sent Sheriff to investigate. All of these people were available as potential witnesses in the case of Pedersen v. Carr. Pedersen alleges that Carr, while drunk, struck Pedersen, who was in a duly marked crosswalk.On the evening of the day of the accident, Walter Passenger wrote a letter to his sister in which he described the accident. When Walter is later testifying on direct examination and says he cannot remember some details of the accident, Pedersen's counsel seeks to show him the letter to assist him. The trial judge should rule this

0A

train 308

The most generally accepted basis on which a court will hold that X has a legal duty to aid another is the recognition by X that there is immediate danger of serious harm to

3D

train 309

Jones, angry at a neighbor with whom he had quarreled, for revenge surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had Jones arrested and charged with larceny.

1B

train 310

Harris, a heroin addict, broke into a house and took several cameras and watches, which he promptly pawned to obtain cash with which to obtain a "fix." Harris was later charged with larceny of the cameras and watches.

0A

train 311

Chase, as seller, and Scott, as buyer, enter into a written contract for the sale and purchase of land that is complete in all respects except that no reference is made to the quality of title to be conveyed. Which of the following will result?

1B

train 312

A state statute requires that all buses which operate as common carriers on the highways of the state shall be equipped with seat belts for passengers. Transport Lines, an interstate carrier, challenges the validity of the statute and the right of the state to make the requirement. What is the best basis for a constitutional challenge by Transport Lines?

2C

train 313

Amy Docent, a state college instructor, was discharged because of her refusal to comply with a state statute requiring public employees to swear or affirm that they will (1) "uphold and defend" the state and federal constitutions and (2) "oppose the overthrow" of the state or federal government "by force, violence, or any improper method." The statute had previously been held constitutional by the state supreme court. Docent filed a complaint in federal district court alleging the unconstitutionality of the statute and seeking an injunction and damages. Which of the following is the state's strongest argument for sustaining the validity of the statute?

1B

train 314

All lawyers practicing in the state of Erewhon must be members of the State Bar Association, by order of the state supreme court. Several state officials serve on the Bar Association's Board of Bar Governors. The Board of Bar Governors authorizes the payment of dues for two staff members to the Cosmopolitan Club, a private dining club licensed to sell alcoholic beverages. The Cosmopolitan Club is frequented by affluent businessmen and professionals and by legislators. It is generally known that the purpose of the membership of the Bar Association staff is to enable them to go where members of the "elite" meet and to lobby for legislation in which the Bar Association is interested. The State Bar Association has numerous committees and subcommittees concerned with family law, real estate law, unauthorized practice, etc., and its recommendations often influence state policy. Some committee meetings are held at the Cosmopolitan Club. The club is known to have rules which restrict membership by race, religion, and sex. Plaintiffs, husband and wife, who are members of the Erewhon Bar Association, petitioned the Board of Bar Governors to adopt a resolution prohibiting the payment of club dues to and the holding of meetings of the Bar Association or its committees at places which discriminate on the basis of race, religion, or sex. After substantial public discussion, the Board of Bar Governors, by a close vote, failed to pass such a resolution. These events received extensive coverage in the local newspapers. Plaintiffs have brought an action in federal court seeking an injunction against such payments and the holding of meetings in such places as the Cosmopolitan Club."The strongest argument for Plaintiffs is

2C

train 315

All lawyers practicing in the state of Erewhon must be members of the State Bar Association, by order of the state supreme court. Several state officials serve on the Bar Association's Board of Bar Governors. The Board of Bar Governors authorizes the payment of dues for two staff members to the Cosmopolitan Club, a private dining club licensed to sell alcoholic beverages. The Cosmopolitan Club is frequented by affluent businessmen and professionals and by legislators. It is generally known that the purpose of the membership of the Bar Association staff is to enable them to go where members of the "elite" meet and to lobby for legislation in which the Bar Association is interested. The State Bar Association has numerous committees and subcommittees concerned with family law, real estate law, unauthorized practice, etc., and its recommendations often influence state policy. Some committee meetings are held at the Cosmopolitan Club. The club is known to have rules which restrict membership by race, religion, and sex. Plaintiffs, husband and wife, who are members of the Erewhon Bar Association, petitioned the Board of Bar Governors to adopt a resolution prohibiting the payment of club dues to and the holding of meetings of the Bar Association or its committees at places which discriminate on the basis of race, religion, or sex. After substantial public discussion, the Board of Bar Governors, by a close vote, failed to pass such a resolution. These events received extensive coverage in the local newspapers. Plaintiffs have brought an action in federal court seeking an injunction against such payments and the holding of meetings in such places as the Cosmopolitan Club."Which of the following actions should a federal district court take with respect to jurisdiction?

0A

train 316

In 1945, Owen, owner of both Blackacre and Whiteacre, executed and delivered two separate deeds by which he conveyed the two tracts of land as follows: Blackacre was conveyed "To Alpha and his heirs as long as it is used exclusively for residential purposes, but if it is ever used for other than residential purposes, to the American Red Cross." Whiteacre was conveyed "To Beta and her heirs as long as it is used exclusively for residential purposes, but if it is used for other than residential purposes prior to 1965, then to the Salvation Army." In 1950, Owen died leaving a valid will by which he devised all his real estate to his brother, Bill. The will had no residuary clause. Owen was survived by Bill and by Owen's daughter, Delia, who was Owen's sole heir. For the purpose of this set of questions, it may be assumed that the common law rule against perpetuities applies in the state where the land is located and that the state also has a statute providing that "all future estates and interests are alienable, descendible, and devisable in the same manner as possessory estates and interests.""In 1955, Alpha and Delia entered into a contract with John whereby Alpha and Delia contracted to sell Blackacre to John in fee simple. After examining the title, John refused to perform on the ground that Alpha and Delia could not give good title. Alpha and Delia joined in an action against John for specific performance. Specific performance will be

2C

train 317

In 1945, Owen, owner of both Blackacre and Whiteacre, executed and delivered two separate deeds by which he conveyed the two tracts of land as follows: Blackacre was conveyed "To Alpha and his heirs as long as it is used exclusively for residential purposes, but if it is ever used for other than residential purposes, to the American Red Cross." Whiteacre was conveyed "To Beta and her heirs as long as it is used exclusively for residential purposes, but if it is used for other than residential purposes prior to 1965, then to the Salvation Army." In 1950, Owen died leaving a valid will by which he devised all his real estate to his brother, Bill. The will had no residuary clause. Owen was survived by Bill and by Owen's daughter, Delia, who was Owen's sole heir. For the purpose of this set of questions, it may be assumed that the common law rule against perpetuities applies in the state where the land is located and that the state also has a statute providing that "all future estates and interests are alienable, descendible, and devisable in the same manner as possessory estates and interests."""In 1946, the interest of the American Red Cross in Blackacre could be best described as a

1B

train 318

Brill saved the life of Ace's wife, Mary, who thereafter changed her will to leave Brill $1,000. However, upon Mary's death she had no property except an undivided interest in real estate held in tenancy by the entirety of Ace. The property had been purchased by Ace from an inheritance. After Mary died, Ace signed and delivered to Brill the following instrument: "In consideration of Brill's saving my wife's life and his agreement to bring no claims against my estate based on her will, I hereby promise to pay Brill $1,000." Upon Ace's death, Brill filed a claim for $1,000. Ace's executor contested the claim on the ground that the instrument was not supported by sufficient consideration."In most states, would Brill's saving of Mary's life be regarded as sufficient consideration for Ace's promise?

2C

train 319

Brill saved the life of Ace's wife, Mary, who thereafter changed her will to leave Brill $1,000. However, upon Mary's death she had no property except an undivided interest in real estate held in tenancy by the entirety of Ace. The property had been purchased by Ace from an inheritance. After Mary died, Ace signed and delivered to Brill the following instrument: "In consideration of Brill's saving my wife's life and his agreement to bring no claims against my estate based on her will, I hereby promise to pay Brill $1,000." Upon Ace's death, Brill filed a claim for $1,000. Ace's executor contested the claim on the ground that the instrument was not supported by sufficient consideration."With respect to the recital that Brill had agreed not to file a claim against Ace's estate, what additional fact would most strengthen Brill's claim?

1B

train 320

Brill saved the life of Ace's wife, Mary, who thereafter changed her will to leave Brill $1,000. However, upon Mary's death she had no property except an undivided interest in real estate held in tenancy by the entirety of Ace. The property had been purchased by Ace from an inheritance. After Mary died, Ace signed and delivered to Brill the following instrument: "In consideration of Brill's saving my wife's life and his agreement to bring no claims against my estate based on her will, I hereby promise to pay Brill $1,000." Upon Ace's death, Brill filed a claim for $1,000. Ace's executor contested the claim on the ground that the instrument was not supported by sufficient consideration."On which of the following theories would it be most likely that Brill could recover?

0A

train 321

Brown suffered from the delusion that he was a special agent of God. He frequently experienced hallucinations in the form of hearing divine commands. Brown believed God told him several times that the local Roman Catholic bishop was corrupting the diocese into heresy, and that the bishop should be "done away with." Brown, a devout Catholic, conceived of himself as a religious martyr. He knew that shooting bishops for heresy is against the criminal law. He nevertheless carefully planned how he might kill the bishop. One evening Brown shot the bishop, who was then taken to the hospital where he died two weeks later. Brown told the police he assumed the institutions of society would support the ecclesiastical hierarchy and he expected to be persecuted for his God-inspired actions. Psychiatrist Stevens examined Brown and found that Brown suffered from schizophrenic psychosis, that in the absence of this psychosis, he would not have shot the bishop, and that because of the psychosis, Brown found it extremely difficult to determine whether he should obey the specific command that he do away with the bishop or the general commandment "Thou shalt not kill." Brown was charged with murder. If Brown interposes an insanity defense and the jurisdiction in which he is tried has adopted only the M'Naghten test of insanity, then the strongest argument for the defense under that test is that

1B

train 322

Walker, a pedestrian, started north across the street in a clearly marked north-south crosswalk with the green traffic light in her favor. Walker was in a hurry, and before reaching the north curb on the street, she cut to her left diagonally across the street to the east-west crosswalk and started across it. Just after she reached the east-west crosswalk, the traffic light turned green in her favor. She had proceeded about five steps farther across the street to the west in the crosswalk when she was struck by a car approaching from her right that she thought would stop but did not. The car was driven by Driver, 81 years of age, who failed to stop his car after seeing that the traffic light was red against him. Walker had a bone disease, resulting in very brittle bones, that is prevalent in only 0.02 percent of the population. As a result of the impact Walker suffered a broken leg and the destruction of her family heirloom, a Picasso original painting that she was taking to her bank for safekeeping. The painting had been purchased by Walker's grandmother for $750 but was valued at $500,000 at the time of the accident. Walker has filed suit against Driver. Driver's attorney has alleged that Walker violated a state statute requiring that pedestrians stay in crosswalks, and that if Walker had not violated the statute she would have had to walk 25 feet more to reach the impact point and therefore would not have been at a place where she could have been hit by Driver. Walker's attorney ascertains that there is a statute as alleged by Driver, that his measurements are correct, that there is a state statute requiring observance of traffic lights, and that Driver's license expired two years prior to the collision"The violation of the crosswalk statute by Walker should not defeat her cause of action against Driver because

3D

train 323

Walker, a pedestrian, started north across the street in a clearly marked north-south crosswalk with the green traffic light in her favor. Walker was in a hurry, and before reaching the north curb on the street, she cut to her left diagonally across the street to the east-west crosswalk and started across it. Just after she reached the east-west crosswalk, the traffic light turned green in her favor. She had proceeded about five steps farther across the street to the west in the crosswalk when she was struck by a car approaching from her right that she thought would stop but did not. The car was driven by Driver, 81 years of age, who failed to stop his car after seeing that the traffic light was red against him. Walker had a bone disease, resulting in very brittle bones, that is prevalent in only 0.02 percent of the population. As a result of the impact Walker suffered a broken leg and the destruction of her family heirloom, a Picasso original painting that she was taking to her bank for safekeeping. The painting had been purchased by Walker's grandmother for $750 but was valued at $500,000 at the time of the accident. Walker has filed suit against Driver. Driver's attorney has alleged that Walker violated a state statute requiring that pedestrians stay in crosswalks, and that if Walker had not violated the statute she would have had to walk 25 feet more to reach the impact point and therefore would not have been at a place where she could have been hit by Driver. Walker's attorney ascertains that there is a statute as alleged by Driver, that his measurements are correct, that there is a state statute requiring observance of traffic lights, and that Driver's license expired two years prior to the collision"The failure of Driver to have a valid driver's license has which of the following effects?

1B

train 324

Walker, a pedestrian, started north across the street in a clearly marked north-south crosswalk with the green traffic light in her favor. Walker was in a hurry, and before reaching the north curb on the street, she cut to her left diagonally across the street to the east-west crosswalk and started across it. Just after she reached the east-west crosswalk, the traffic light turned green in her favor. She had proceeded about five steps farther across the street to the west in the crosswalk when she was struck by a car approaching from her right that she thought would stop but did not. The car was driven by Driver, 81 years of age, who failed to stop his car after seeing that the traffic light was red against him. Walker had a bone disease, resulting in very brittle bones, that is prevalent in only 0.02 percent of the population. As a result of the impact Walker suffered a broken leg and the destruction of her family heirloom, a Picasso original painting that she was taking to her bank for safekeeping. The painting had been purchased by Walker's grandmother for $750 but was valued at $500,000 at the time of the accident. Walker has filed suit against Driver. Driver's attorney has alleged that Walker violated a state statute requiring that pedestrians stay in crosswalks, and that if Walker had not violated the statute she would have had to walk 25 feet more to reach the impact point and therefore would not have been at a place where she could have been hit by Driver. Walker's attorney ascertains that there is a statute as alleged by Driver, that his measurements are correct, that there is a state statute requiring observance of traffic lights, and that Driver's license expired two years prior to the collision"If Walker establishes liability on the part of Driver for her physical injuries, should Walker's recovery include damages for a broken leg?

3D

train 325

Walker, a pedestrian, started north across the street in a clearly marked north-south crosswalk with the green traffic light in her favor. Walker was in a hurry, and before reaching the north curb on the street, she cut to her left diagonally across the street to the east-west crosswalk and started across it. Just after she reached the east-west crosswalk, the traffic light turned green in her favor. She had proceeded about five steps farther across the street to the west in the crosswalk when she was struck by a car approaching from her right that she thought would stop but did not. The car was driven by Driver, 81 years of age, who failed to stop his car after seeing that the traffic light was red against him. Walker had a bone disease, resulting in very brittle bones, that is prevalent in only 0.02 percent of the population. As a result of the impact Walker suffered a broken leg and the destruction of her family heirloom, a Picasso original painting that she was taking to her bank for safekeeping. The painting had been purchased by Walker's grandmother for $750 but was valued at $500,000 at the time of the accident. Walker has filed suit against Driver. Driver's attorney has alleged that Walker violated a state statute requiring that pedestrians stay in crosswalks, and that if Walker had not violated the statute she would have had to walk 25 feet more to reach the impact point and therefore would not have been at a place where she could have been hit by Driver. Walker's attorney ascertains that there is a statute as alleged by Driver, that his measurements are correct, that there is a state statute requiring observance of traffic lights, and that Driver's license expired two years prior to the collision"Walker's violation of the crosswalk statute should not be considered by the jury because

3D

train 326

Paulsen was eating in a restaurant when he began to choke on a piece of food that had lodged in his throat. Dow, a physician who was sitting at a nearby table, did not wish to become involved and did not render any assistance, although prompt medical attention would have been effective in removing the obstruction from Paulsen's throat. Because of the failure to obtain prompt medical attention, Paulsen suffered a severe brain injury from lack of oxygen. If Paulsen asserts a claim against Dow for his injuries, will Paulsen prevail?

2C

train 327

The state of Champlain enacts the Young Adult Marriage Counseling Act, which provides that, before any persons less than 30 years of age may be issued a marriage license, they must receive at least five hours of marriage counseling from a statelicensed social worker. This counseling is designed to assure that applicants for marriage licenses know their legal rights and duties in relation to marriage and parenthood, understand the "true nature" of the marriage relationship, and understand the procedures for obtaining divorces.Pine, aged 25, contemplated marrying Ross, aged 25. Both are residents of the state of Champlain. Pine has not yet proposed to Ross because he is offended by the counseling requirement. Pine sues in court seeking a declaratory judgment that the Young Adult Marriage Counseling Act is unconstitutional. Which of the following is the clearest ground for dismissal of this action by the court?

3D

train 328

The state of Champlain enacts the Young Adult Marriage Counseling Act, which provides that, before any persons less than 30 years of age may be issued a marriage license, they must receive at least five hours of marriage counseling from a statelicensed social worker. This counseling is designed to assure that applicants for marriage licenses know their legal rights and duties in relation to marriage and parenthood, understand the "true nature" of the marriage relationship, and understand the procedures for obtaining divorces.In a case in which the constitutionality of the Young Adult Marriage Counseling Act is in 80 issue, the burden of persuasion will probably be on the

2C

train 329

Ogden was the fee simple owner of three adjoining vacant lots fronting on a common street in a primarily residential section of a city which had no zoning laws. The lots were identified as Lots 1, 2, and 3. Ogden conveyed Lot 1 to Akers and Lot 2 to Bell. Ogden retained Lot 3, which consisted of three acres of woodland. Bell, whose lot was between the other two, built a house on his lot. Bell's house included a large window on the side facing Lot 3. The window provided a beautiful view from Bell's living room, thereby adding value to Bell's house. Akers erected a house on his lot. Ogden made no complaint to either Akers or Bell concerning the houses they built. After both Akers and Bell had completed their houses, the two of them agreed to and did build a common driveway running from the street to the rear of their respective lots. The driveway was built on the line between the two houses so that one-half of the way was located on each lot. Akers and Bell exchanged right-of-way deeds by which each of them conveyed to the other, his heirs and assigns, an easement to continue the right of way. Both deeds were properly recorded. After Akers and Bell had lived in their respective houses for 30 years, a new public street was built bordering on the rear of Lots 1, 2, and 3. Akers informed Bell that, since the new street removed the need for their common driveway, he considered the right-of-way terminated; therefore, he intended to discontinue its use and expected Bell to do the same. At about the same time, Ogden began the erection of a six-story apartment house on Lot 3. If the apartment house is completed, it will block the view from Bell's window and will substantially reduce the value of Bell's lot."In an action brought by Bell to enjoin Akers from interfering with Bell's continued use of the common driveway between the two lots, the decision should be for

3D

train 330

Ogden was the fee simple owner of three adjoining vacant lots fronting on a common street in a primarily residential section of a city which had no zoning laws. The lots were identified as Lots 1, 2, and 3. Ogden conveyed Lot 1 to Akers and Lot 2 to Bell. Ogden retained Lot 3, which consisted of three acres of woodland. Bell, whose lot was between the other two, built a house on his lot. Bell's house included a large window on the side facing Lot 3. The window provided a beautiful view from Bell's living room, thereby adding value to Bell's house. Akers erected a house on his lot. Ogden made no complaint to either Akers or Bell concerning the houses they built. After both Akers and Bell had completed their houses, the two of them agreed to and did build a common driveway running from the street to the rear of their respective lots. The driveway was built on the line between the two houses so that one-half of the way was located on each lot. Akers and Bell exchanged right-of-way deeds by which each of them conveyed to the other, his heirs and assigns, an easement to continue the right of way. Both deeds were properly recorded. After Akers and Bell had lived in their respective houses for 30 years, a new public street was built bordering on the rear of Lots 1, 2, and 3. Akers informed Bell that, since the new street removed the need for their common driveway, he considered the right-of-way terminated; therefore, he intended to discontinue its use and expected Bell to do the same. At about the same time, Ogden began the erection of a six-story apartment house on Lot 3. If the apartment house is completed, it will block the view from Bell's window and will substantially reduce the value of Bell's lot."In an action brought by Bell to enjoin Ogden from erecting the apartment building in such a way as to obstruct the view from Bell's living room window, the decision should be for

3D

train 331

Dever was indicted for the murder of Vickers by poison. At trial, the prosecutor calls the county coroner, Dr. Wolfe, who is a boardcertified pathologist, to testify that, in accord with good practice in her specialty, she has studied microphotographic slides, made under her supervision by medical assistants, of tissue taken from Vickers' corpse and that it is Wolfe's opinion, based on that study, that Vickers died of poisoning. The slides have not been offered in evidence. Dr. Wolfe's opinion should be

2C

train 332

At the trial of Davis for a murder that occurred in Newtown, the prosecution called Waite, who testified that she saw Davis kill the victim. Davis believed that Waite was 600 miles away in Old Town, engaged in the illegal sale of narcotics, on the day in question. On cross-examination by Davis, Waite was asked whether she had in fact sold narcotics in Old Town on that date. Waite refused to answer on the ground of selfincrimination. The judge, over the prosecutor's objection, ordered that if Waite did not testify, her direct testimony should be stricken. The order to testify or have the testimony stricken can best be supported on the basis that

1B

train 333

A statute of the state of Tuscarora made it a misdemeanor to construct any building of more than five stories without an automatic fire sprinkler system. A local construction company built a 10-story federal office building in Tuscarora. It constructed the building according to the precise specifications of a federal contract authorized by federal statutes. Because the building was built without the automatic fire sprinkler system required by state law, Tuscarora decided to prosecute the private contractor. Which of the following is the company's strongest defense to that prosecution?

2C

train 334

On January 15, Carpenter agreed to repair Householder's house according to certain specifications and to have the work completed by April 1. On March 1, Householder's property was inundated by floodwaters which did not abate until March 15. Householder could not get the house into a condition which would permit Carpenter to begin the repairs until March 31. On that date Carpenter notified Householder that he would not repair the house. Which one of the following facts, if it was the only one true and known to both parties on January 15, would best serve Carpenter as the basis for a defense in an action brought against him by Householder for breach of contract?

0A

train 335

In a telephone call on March 1, Adams, an unemployed, retired person, said to Dawes, "I will sell my automobile for $3,000 cash. I will hold this offer open through March 14." On March 12, Adams called Dawes and told her that he had sold the automobile to Clark. Adams in fact had not sold the automobile to anyone. On March 14, Dawes learned that Adams still owned the automobile, and on that date called Adams and said, "I'm coming over to your place with $3,000." Adams replied, "Don't bother. I won't deliver the automobile to you under any circumstances." Dawes protested, but made no further attempt to pay for or take delivery of the automobile. 82 In an action by Dawes against Adams for breach of contract, Dawes probably will

3D

train 336

Parents purchased a new mobile home from Seller. The mobile home was manufactured by Mobilco and had a ventilating system designed by Mobilco with both a heating unit and an air conditioner. Mobilco installed a furnace manufactured by Heatco and an air conditioning unit manufactured by Coolco. Each was controlled by an independent thermostat installed by Mobilco. Because of the manner in which Mobilco designed the ventilating system, the first time the ventilating system was operated by Parents, cold air was vented into Parents' bedroom to keep the temperature at 68°F (20°C). The cold air then activated the heater thermostat, and hot air was pumped into the bedroom of Child, the six-monthold child of Parents. The temperature in Child's room reached more than 170°F (77°C) before Child's mother became aware of the condition and shut the system off manually. As a result, Child suffered permanent physical injury. Claims have been asserted by Child, through a duly appointed guardian, against Mobilco, Seller, Heatco, and Coolco."If Child's claim against Seller is based on negligence, the minimum proof necessary to establish Seller's liability is that the ventilating system

3D

train 337

Parents purchased a new mobile home from Seller. The mobile home was manufactured by Mobilco and had a ventilating system designed by Mobilco with both a heating unit and an air conditioner. Mobilco installed a furnace manufactured by Heatco and an air conditioning unit manufactured by Coolco. Each was controlled by an independent thermostat installed by Mobilco. Because of the manner in which Mobilco designed the ventilating system, the first time the ventilating system was operated by Parents, cold air was vented into Parents' bedroom to keep the temperature at 68°F (20°C). The cold air then activated the heater thermostat, and hot air was pumped into the bedroom of Child, the six-monthold child of Parents. The temperature in Child's room reached more than 170°F (77°C) before Child's mother became aware of the condition and shut the system off manually. As a result, Child suffered permanent physical injury. Claims have been asserted by Child, through a duly appointed guardian, against Mobilco, Seller, Heatco, and Coolco."If Child's claims against Mobilco, Heatco, and Coolco are based on strict liability in tort, Child will probably recover against

0A

train 338

Cars driven by Pugh and Davidson collided, and Davidson was charged with driving while intoxicated in connection with the accident. She pleaded guilty and was merely fined, although under the statute the court could have sentenced her to two years in prison. Thereafter, Pugh, alleging that Davidson's intoxication had caused the collision, sued Davidson for damages. At trial, Pugh offers the properly authenticated record of Davidson's conviction. The record should be

1B

train 339

Pitt sued Dow for damages for injuries that Pitt incurred when a badly rotted limb fell from a curbside tree in front of Dow's home and hit Pitt. Dow claimed that the tree was on city property and thus was the responsibility of the city. At trial, Pitt offered testimony that a week after the accident, Dow had cut the tree down with a chain saw. The offered evidence is

2C

train 340

A state statute makes it a felony for any teacher at a state institution of higher education to accept anything of value from a student at the same institution. Monroe, a student at the state university, offered Professor Smith, his English teacher, $50 in exchange for a good grade in his English course. Smith agreed and took the money. Professor Smith and Monroe are tried jointly for violation of the state statute. Professor Smith is charged with violating the statute, and Monroe with aiding and abetting him. Monroe's best argument for a dismissal of the charge against him is that

2C

train 341

In which of the following situations is Defendant most likely to be guilty of the crime charged?

1B

train 342

Carver is a chemical engineer. She has no interest in or connection with Chemco. Carver noticed that Chemco's most recent publicly issued financial statement listed, as part of Chemco's assets, a large inventory of a certain special chemical compound. This asset was listed at a cost of $100,000, but Carver knew that the ingredients of the compound were in short supply and that the current market value of the inventory was in excess of $1,000,000. There was no current public quotation of the price of Chemco stock. The book value of Chemco stock, according to the statement, was $5 a share; its actual value was $30 a share. Knowing these facts, Carver offered to purchase from Page at $6 a share the 1,000 shares of Chemco stock owned by Page. Page and Carver had not previously met. Page sold the stock to Carver for $6 a share. If Page asserts a claim based on misrepresentation against Carver, will Page prevail?

2C

train 343

Dean, charged with murder, was present with her attorney at a preliminary examination when White, who was the defendant in a separate prosecution for concealing the body of the murder victim, testified for the prosecution against Dean. When called to testify at Dean's trial, White refused to testify, though ordered to do so. The prosecution offers evidence of White's testimony at the preliminary examination. The evidence is

0A

train 344

Potts, a building contractor, sued Dennis for failure to pay on a small cost-plus construction 84 contract. At trial, Potts, who personally supervised all of the work, seeks to testify to what he remembers about the amount of pipe used, the number of workers used on the job, and the number of hours spent grading. Dennis objects on the ground that Potts had routinely recorded these facts in notebooks which are in Potts' possession. Potts' testimony is

1B

train 345

While testifying as a witness in a civil trial, Walters was asked on cross-examination if he had been convicted in the circuit court of Jasper County of stealing $200 from his employer on August 16, 1977. Walters said, "No, I have never been convicted of any crime." In fact, Walters had pleaded guilty to such a charge and had been placed on probation. Walters was then charged with perjury on the ground that his statement denying the conviction was false. A statute in the jurisdiction defines perjury as knowingly making a false statement while under oath. At trial, the state proved Walters' statement and the prior conviction. Walters testified that the attorney who represented him in the theft case had told him that, because he had been placed on probation, he had not been convicted of a crime. Walters had served his probationary period satisfactorily and been discharged from probation. The alleged advice of the attorney was incorrect. If the jury believes Walters, it should find him

3D

train 346

A grand jury was investigating a bank robbery. The only information known to the prosecutor was a rumor that Taylor might have been involved. The grand jury subpoenaed Taylor. He refused to answer questions about the robbery and was granted use immunity. He then testified that he and Simmons had robbed the bank. The grand jury indicted both Taylor and Simmons for the bank robbery. The prosecutor permitted Simmons to enter a plea to a lesser offense in exchange for Simmons' agreement to testify against Taylor. The prosecutor had no evidence as to the identity of the robbers except the testimony of Simmons and Taylor. At Taylor's trial, his objection to Simmons' being permitted to testify should be

1B

train 347

A federal statute requires United States civil service employees to retire at age 75. However, that statute also states that civil service employees of the armed forces must retire at age 65. Prentis, a 65-year-old service employee of the Department of the Army, seeks a declaratory judgment that would forbid his mandatory retirement until age 75. The strongest argument that Prentis can make to invalidate the requirement that he retire at age 65 is that the law

3D

train 348

Light Company is the sole distributor of electrical power in City. The Company owns and maintains all of the electric poles and equipment in City. Light Company has complied with the National Electrical Safety Code, which establishes minimum requirements for the installation and maintenance of power poles. The Code has been approved by the federal and state governments. Light Company has had to replace insulators on its poles repeatedly because unknown persons repeatedly shoot at and destroy them. This causes the power lines to fall to the ground. On one of these occasions, Paul, Faber's fiveyear-old son, wandered out of Faber's yard, intentionally touched a downed wire, and was seriously burned. If a claim on Paul's behalf is asserted against Light Company, the probable result is that Paul will

0A

train 349

The city of Metropolis has an ordinance that makes it an offense, punishable by fine, for the owner of a dog to permit the dog to run unleashed on a public way. Smythe, a police officer, observed a small dog running loose in the street. As Smythe picked the dog up, Nelson, who was seated in her car lawfully parked at the curb, called out, "Oh, thank you, Officer, for returning Fido." Smythe asked Nelson whether the dog was hers, and when she acknowledged ownership, he asked to see her driver's license. Nelson gave her name and address, but she refused to produce a driver's license. Smythe then told her to produce her driver's license if she did not want to go to jail. Nelson responded by saying, "Isn't this ridiculous?" Smythe took her by the arm and said, "Let's go. You are under arrest." Nelson cried out that Smythe was hurting her but he refused to release her arm, and she struck him with her free hand. Smythe then dragged Nelson from her car, forced her into his squad car, and took her to the police station. The incident took place on the street in front of the apartment where Nelson and her aged father, Joplin, lived. Smythe did not know that Joplin had observed what took place from a window in the apartment. If Nelson's father, Joplin, asserts a claim against Smythe for the intentional infliction of emotional distress, will Joplin prevail?

2C

train 350

Davison was driving through an apartment building area plagued with an unusually high incidence of burglaries and assaults. Acting pursuant to a police department plan to combat crime by the random stopping of automobiles in the area between midnight and 6 a.m., a police officer stopped Davison and asked him for identification. As Davison handed the officer his license, the officer directed a flashlight into the automobile and saw what appeared to be the barrel of a shotgun protruding from under the front seat on the passenger side of the car. The office ordered Davison from the car, searched him, and discovered marijuana cigarettes and a shotgun. At Davison's trial for unlawful possession of narcotics, his motion to suppress the use of the marijuana as evidence should be

0A

train 351

Morgan conveyed Greenacre, her one-family residence, to "Perez for life, remainder to Rowan, her heirs and assigns, subject, however, to First Bank's mortgage thereon." There was an unpaid balance on the mortgage of $10,000, which is payable in $1,000 annual installments plus interest at six percent on the unpaid balance, with the next payment due on July 1. Perez is now occupying Greenacre. The reasonable rental value of the property exceeds the sum necessary to meet all current charges. There is no applicable statute. Under the rules governing contributions between life tenants and remaindermen, how should the burden for payment be allocated?

0A

train 352

Anders conveyed her only parcel of land to Burton by a duly executed and delivered warranty deed, which provided: To have and to hold the described tract of land in fee simple, subject to the understanding that within one year from the date of the instrument said grantee shall construct and thereafter maintain and operate on said premises a public health center. The grantee, Burton, constructed a public health center on the tract within the time specified and operated it for five years. At the end of this period, Burton converted the structure into a senior citizens' recreational facility. It is conceded by all parties in interest that a senior citizens' recreational facility is not a public health center. In an appropriate action, Anders seeks a declaration that the change in the use of the facility has caused the land and structure to revert to her. In this action, Anders should

2C

train 353

A group of children, ranging in age from 8 to 15, regularly played football on the common area of an apartment complex owned by O'Neill. Most of the children lived in the apartment complex, but some lived elsewhere. O'Neill knew that the children played on the common area and had not objected. Peter, a 13-year-old who did not live in the apartment complex, fell over a sprinkler head while running for a pass and broke his leg. Although Peter had played football on the common area before, he had never noticed the sprinkler heads, which protruded one inch above the ground and were part of a permanently installed underground sprinkler system. If a claim is asserted on Peter's behalf, Peter will

0A

train 354

Congress passes a law regulating the wholesale retail prices of "every purchase or sale of oil, natural gas, and electric power made in the United States." The strongest argument in support of the constitutionality of this statute is that

3D

train 355

In a written contract, Singer agreed to deliver to Byer 500 described chairs at $20 each F.O.B. Singer's place of business. The contract provided that "neither party will assign this contract without the written consent of the other." Singer placed the chairs on board a carrier on January 30. On February 1 Singer said in a signed writing, "I hereby assign to Wheeler all my rights under the Singer-Byer contract." Singer did not request and did not get Byer's consent to this transaction. On February 2 the chairs were destroyed while in transit in a derailment of the carrier's railroad car. ". In an action by Wheeler against Byer, Wheeler probably will recover

0A

train 356

In a written contract, Singer agreed to deliver to Byer 500 described chairs at $20 each F.O.B. Singer's place of business. The contract provided that "neither party will assign this contract without the written consent of the other." Singer placed the chairs on board a carrier on January 30. On February 1 Singer said in a signed writing, "I hereby assign to Wheeler all my rights under the Singer-Byer contract." Singer did not request and did not get Byer's consent to this transaction. On February 2 the chairs were destroyed while in transit in a derailment of the carrier's railroad car. "In an action by Byer against Singer for breach of contract, Byer probably will

3D

train 357

Dutton, disappointed by his eight-year-old son's failure to do well in school, began systematically depriving the child of food during summer vacation. Although his son became seriously ill from malnutrition, Dutton failed to call a doctor. He believed that as a parent he had the sole right to determine whether the child was fed or received medical treatment. Eventually the child died. An autopsy disclosed that the child had suffered agonizingly as a result of the starvation, that a physician's aid would have alleviated the suffering, and that although the child would have died in a few months from malnutrition, the actual cause of death was an untreatable form of cancer. The father was prosecuted for murder, defined in the jurisdiction as "unlawful killing of a human being with malice aforethought." The father should be

1B

train 358

Vance had cheated Dodd in a card game. Angered, Dodd set out for Vance's house with the intention of shooting him. Just as he was about to set foot on Vance's property, Dodd was arrested by a police officer who noticed that Dodd was carrying a revolver. A statute in the jurisdiction makes it a crime to "enter the property of another with the intent to commit any crime of violence thereon." 88 If charged with attempting to violate the statute, Dodd should be found

2C

train 359

Congress enacted a statute providing that persons may challenge a state energy law on the ground that it is in conflict with the federal Constitution in either federal or state court. According to this federal statute, any decision by a lower state court upholding a state energy law against a challenge based on the federal Constitution may be appealed directly to the United States Supreme Court. The provisions of this statute that authorize direct United States Supreme Court review of specified decisions rendered by lower state courts are

1B

train 360

After several days of negotiations, Ohner wrote to Plummer: "Will pay you $3,000 if you will install new plumbing in my office building according to the specifications I have sent you. I must have your reply by March 30." Plummer replied by a letter that Ohner received on March 15: "Will not do it for less than $3,500." On March 20, Plummer wrote to Ohner: "Have changed my mind. I will do the work for $3,000. Unless I hear from you to the contrary, I will begin work on April 5." Ohner received this letter on March 22 but did not reply to it. Plummer, without Ohner's knowledge, began the work on April 5. Which of the following best characterizes the legal relationship between Ohner and Plummer as of April 5?

3D

train 361

On January 15, in a signed writing, Artisan agreed to remodel Ohner's building according to certain specifications, and Ohner agreed to pay the specified price of $5,000 to Artisan's niece, Roberta Neese, as a birthday present. Neese did not learn of the agreement until her birthday on May 5. Before they signed the writing, Artisan and Ohner had orally agreed that their "written agreement will be null and void unless Ohner is able to obtain a $5,000 loan from the First National Bank before January 31.""For this question only, assume that Ohner was unable to obtain the loan, and on January 31, phoned Artisan and told him, "Don't begin the work. The deal is off." In an action for breach of contract brought against Ohner by the proper party, will Ohner be successful in asserting as a defense his inability to obtain a loan?

0A

train 362

On January 15, in a signed writing, Artisan agreed to remodel Ohner's building according to certain specifications, and Ohner agreed to pay the specified price of $5,000 to Artisan's niece, Roberta Neese, as a birthday present. Neese did not learn of the agreement until her birthday on May 5. Before they signed the writing, Artisan and Ohner had orally agreed that their "written agreement will be null and void unless Ohner is able to obtain a $5,000 loan from the First National Bank before January 31."For this question only, assume that Ohner obtained the loan, that Artisan completed the remodeling on May 1, and that on May 3, at Artisan's request, Ohner paid the $5,000 to Artisan. If Neese learns of Ohner's payment to Artisan on May 5, at the same time she learns of the written Artisan-Ohner contract, will she succeed in action against Ohner for $5,000?

3D

train 363

Dryden is on trial on a charge of driving while intoxicated. When Dryden was booked at the police station, a videotape was made that showed him unsteady, abusive, and speaking in a slurred manner. If the prosecutor lays a foundation properly identifying the tape, should the court admit it in evidence and permit it to be shown to the jury?

1B

train 364

Talbot and Rogers, as lessees, signed a valid lease for a house. Lane, the landlord, duly executed the lease and delivered possession of the premises to the lessees. During the term of the lease, Rogers verbally invited Andrews to share the house with the lessees. Andrews agreed to pay part of the rent to Lane, who did not object to this arrangement, despite a provision in the lease that provided that "any assignment, subletting, or transfer of any rights under this lease without the express written consent of the landlord is strictly prohibited, null, and void." Talbot objected to Andrews's moving in, even if Andrews were to pay a part of the rent. When Andrews moved in, Talbot brought an appropriate action against Lane, Rogers, and Andrews for a declaratory judgment that Rogers had no right to assign. Rogers' defense was that he and Talbot were tenants in common of a term for years, and that he, Rogers, had a right to assign a fractional interest in his undivided onehalf interest. In this action, Talbot will

2C

train 365

The owner of Newacre executed and delivered to a power company a right-of-way deed for the building and maintenance of an overhead power line across Newacre. The deed was properly recorded. Newacre then passed through several intermediate conveyances until it was conveyed to Sloan about 10 years after the date of the right-of-way deed. All the intermediate deeds were properly recorded, but none of them mentioned the right-of-way. Sloan entered into a written contract to sell Newacre to Jones. By the terms of the contract, Sloan promised to furnish an abstract of title to Jones. Sloan contracted directly with Abstract Company to prepare and deliver an abstract to Jones, and Abstract Company did so. The abstract omitted the right-of-way deed. Jones delivered the abstract to his attorney and asked the attorney for an opinion as to title. The attorney signed and delivered to Jones a letter stating that, from the attorney's examination of the abstract, it was his "opinion that Sloan had a free and unencumbered marketable title to Newacre." Sloan conveyed Newacre to Jones by a deed which included covenants of general warranty and against encumbrances. Jones paid the full purchase price. After Jones had been in possession of Newacre for 90 more than a year, he learned about the right-of-way deed. Sloan, Jones, Abstract Company, and Jones's attorney were all without actual knowledge of the existence of the right-of-way at the time of the conveyance from Sloan to Jones."If Jones sues Abstract Company for damages caused to Jones by the presence of the right-ofway, the most likely result will be a decision for

0A

train 366

The owner of Newacre executed and delivered to a power company a right-of-way deed for the building and maintenance of an overhead power line across Newacre. The deed was properly recorded. Newacre then passed through several intermediate conveyances until it was conveyed to Sloan about 10 years after the date of the right-of-way deed. All the intermediate deeds were properly recorded, but none of them mentioned the right-of-way. Sloan entered into a written contract to sell Newacre to Jones. By the terms of the contract, Sloan promised to furnish an abstract of title to Jones. Sloan contracted directly with Abstract Company to prepare and deliver an abstract to Jones, and Abstract Company did so. The abstract omitted the right-of-way deed. Jones delivered the abstract to his attorney and asked the attorney for an opinion as to title. The attorney signed and delivered to Jones a letter stating that, from the attorney's examination of the abstract, it was his "opinion that Sloan had a free and unencumbered marketable title to Newacre." Sloan conveyed Newacre to Jones by a deed which included covenants of general warranty and against encumbrances. Jones paid the full purchase price. After Jones had been in possession of Newacre for 90 more than a year, he learned about the right-of-way deed. Sloan, Jones, Abstract Company, and Jones's attorney were all without actual knowledge of the existence of the right-of-way at the time of the conveyance from Sloan to Jones."If Jones sues Sloan because of the presence of the right-of-way, the most likely result will be a decision for

1B

train 367

Congress enacts a criminal statute prohibiting "any person from interfering in any way with any right conferred on another person by the equal protection clause of the Fourteenth Amendment. Application of this statute to Jones, a private citizen, would be most clearly constitutional if Jones, with threats of violence, coerces

0A

train 368

Innes worked as a secretary in an office in a building occupied partly by her employer and partly by Glass, a retail store. The two areas were separated by walls and were in no way connected, except that the air conditioning unit served both areas and there was a common return-air duct. Glass began remodeling, and its employees did the work, which included affixing a plastic surfacing material to counters. To fasten the plastic to the counters, the employees purchased glue, with the brand name Stick, that was manufactured by Steel, packaged in a sealed container by Steel, and retailed by Paint Company. In the course of the remodeling job, one of Glass' employees turned on the air conditioning and caused fumes from the glue to travel from Glass through the air conditioning unit and into Innes' office. The employees did not know that there was common ductwork for the air conditioners. Innes was permanently blinded by the fumes from the glue. The label on the container of glue read, "DANGER. Do not smoke near this product. Extremely flammable. Contains butanone, toluol, and hexane. Use with adequate ventilation. Keep out of the reach of children." The three chemicals listed on the label are very toxic and harmful to human eyes. Steel had received no reports of eye injuries during the 10 years that the product had been manufactured and sold."If Innes asserts a claim against Paint Company, the most likely result is that she will

0A

train 369

Innes worked as a secretary in an office in a building occupied partly by her employer and partly by Glass, a retail store. The two areas were separated by walls and were in no way connected, except that the air conditioning unit served both areas and there was a common return-air duct. Glass began remodeling, and its employees did the work, which included affixing a plastic surfacing material to counters. To fasten the plastic to the counters, the employees purchased glue, with the brand name Stick, that was manufactured by Steel, packaged in a sealed container by Steel, and retailed by Paint Company. In the course of the remodeling job, one of Glass' employees turned on the air conditioning and caused fumes from the glue to travel from Glass through the air conditioning unit and into Innes' office. The employees did not know that there was common ductwork for the air conditioners. Innes was permanently blinded by the fumes from the glue. The label on the container of glue read, "DANGER. Do not smoke near this product. Extremely flammable. Contains butanone, toluol, and hexane. Use with adequate ventilation. Keep out of the reach of children." The three chemicals listed on the label are very toxic and harmful to human eyes. Steel had received no reports of eye injuries during the 10 years that the product had been manufactured and sold.". If Innes asserts a claim against Glass, the most likely result is that she will

3D

train 370

When Esther, Gray's 21-year-old daughter, finished college, Gray handed her a signed memorandum stating that if she would go to law school for three academic years, he would pay her tuition, room, and board and would "give her a $1,000 bonus" for each "A" she got in law school. Esther's uncle, Miller, who was present on this occasion, read the memorandum and thereupon said to Esther, "and if he doesn't pay your expenses, I will." Gray paid her tuition, room, and board for her first year but died just before the end of that year. Subsequently, Esther learned that she had received two "A's" in the second semester. The executor of Gray's estate has refused to pay her anything for the two "A's" and has told her that the estate will no longer pay her tuition, room, and board in law school.In an action by Esther against Miller on account of the executor's repudiation of Gray's promise to pay future tuition, room, and board, which of the following would be Miller's strongest defense?

2C

train 371

When Esther, Gray's 21-year-old daughter, finished college, Gray handed her a signed memorandum stating that if she would go to law school for three academic years, he would pay her tuition, room, and board and would "give her a $1,000 bonus" for each "A" she got in law school. Esther's uncle, Miller, who was present on this occasion, read the memorandum and thereupon said to Esther, "and if he doesn't pay your expenses, I will." Gray paid her tuition, room, and board for her first year but died just before the end of that year. Subsequently, Esther learned that she had received two "A's" in the second semester. The executor of Gray's estate has refused to pay her anything for the two "A's" and has told her that the estate will no longer pay her tuition, room, and board in law school.In an action against Gray's estate for $2,000 on account of the two "A's," if the only defense raised is lack of consideration, Esther probably will

1B

train 372

In Polk's negligence action against Dell arising out of a multiple-car collision, Witt testified for Polk that Dell went through a red light. On cross-examination, Dell seeks to question Witt about her statement that the light was yellow, made in a deposition that Witt gave in a separate action between Adams and Baker. The transcript of the deposition is self-authenticating. On proper objection, the court should rule the inquiry

2C

train 373

In 1965 Hubert Green executed his will which in pertinent part provided, "I hereby give, devise, and bequeath Greenvale to my surviving widow for life, remainder to such of my children as shall live to attain the age of 30 years, but if any child dies under the age of 30 years survived by a child or children, such child or children shall take and receive the share which his, her, or their parent would have received had such parent lived to attain the age of 30 years." At the date of writing his will, Green was married to Susan, and they had two children, Allan and Beth. Susan died in 1970 and Hubert married Waverly in 1972. At his death in 1980, Green was survived by his wife, Waverly, and three children, Allan, Beth, and Carter. Carter, who was born in 1974, was his child by Waverly. In a jurisdiction which recognizes the common law Rule Against Perpetuities unmodified by statute, the result of the application of the rule is that the

3D

train 374

Siddon worked as a private duty nurse and on occasion worked in Doctors' Hospital. The hospital called Registry, the private duty referral agency through which Siddon usually obtained employment, and asked that in the future she not be assigned to patients in Doctors' Hospital. Registry asked the hospital why it had made the request. Doctors' Hospital sent a letter to Registry giving as the reason for its request that significant amounts of narcotics had disappeared during Siddon's shift from the nursing stations at which she had worked. If Siddon asserts a claim based on defamation against Doctors' Hospital, Siddon will

3D

train 375

Zeller contracted in writing to deliver to Baker 100 bushels of wheat on August 1 at $3.50 a bushel. Because his suppliers had not delivered enough wheat to him by that time, Zeller on August 1 had only 95 bushels of wheat with which to fulfill his contract with Baker. If Zeller tenders 95 bushels of wheat to Baker on August 1, and Baker refuses to accept or pay for any of the wheat, which of the following best states the legal relationship between Zeller and Baker?

2C

train 376

A federal statute sets up a program of dental education. The statute provides that the Secretary of Health and Human Services "shall, on a current basis, spend all of the money appropriated for this purpose" and "shall distribute the appropriated funds" by a specified formula to state health departments that agree to participate in the program. In the current year Congress has appropriated $100 million for expenditure on this program. In order to ensure a budget surplus in the current fiscal year, the President issues an executive order directing the various cabinet secretaries to cut expenditures in this year by 10 percent in all categories. He also orders certain programs to be cut more drastically because he believes that "they are not as important to the general welfare as other programs." The President identifies the dental education program as such a program and orders it to be cut by 50 percent. Assume that no other federal statutes are relevant. To satisfy constitutional requirements, how much money must the Secretary of Health and Human Services distribute for the dental education program this year?

3D

train 377

Powers sued Debbs for battery. At trial, Powers's witness Wilson testified that Debbs had made an unprovoked attack on Powers. On cross-examination, Debbs asks Wilson about a false claim that Wilson once filed on an insurance policy. The question is

0A

train 378

On March 31, Selco and Byco entered into a written agreement in which Selco agreed to fabricate and sell to Byco 10,000 specially designed brake linings for a new type of power brake manufactured by Byco. The contract provided that Byco would pay half of the purchase price on May 15 in order to give Selco funds to "tool up" for the work; that Selco would deliver 5,000 brake linings on May 31; that Byco would pay the balance of the purchase price on June 15; and that Selco would deliver the balance of the brake linings on June 30. On May 10, Selco notified Byco that it doubted that it could perform because of problems encountered in modifying its production machines to produce the brake linings. On May 15, however, Selco assured Byco that the production difficulties had been overcome, and Byco paid Selco the first 50 percent installment of the purchase price. Selco did not deliver the first 5,000 brake linings on May 31, or at any time thereafter; on June 10, Selco notified Byco that it would not perform the contractWhich of the following correctly states Byco's rights and obligations immediately after receipt of Selco's notice on May 10?

2C

train 379

On March 31, Selco and Byco entered into a written agreement in which Selco agreed to fabricate and sell to Byco 10,000 specially designed brake linings for a new type of power brake manufactured by Byco. The contract provided that Byco would pay half of the purchase price on May 15 in order to give Selco funds to "tool up" for the work; that Selco would deliver 5,000 brake linings on May 31; that Byco would pay the balance of the purchase price on June 15; and that Selco would deliver the balance of the brake linings on June 30. On May 10, Selco notified Byco that it doubted that it could perform because of problems encountered in modifying its production machines to produce the brake linings. On May 15, however, Selco assured Byco that the production difficulties had been overcome, and Byco paid Selco the first 50 percent installment of the purchase price. Selco did not deliver the first 5,000 brake linings on May 31, or at any time thereafter; on June 10, Selco notified Byco that it would not perform the contractWhich of the following is NOT a correct statement of the parties' legal status immediately after Selco's notice on June 10?

3D

train 380

A state statute provides that persons moving into a community to attend a college on a full-time basis may not vote in any elections for local or state officials that are held in that community. Instead, the statute provides that for voting purposes all such persons shall retain their residence in the communities from which they came. In the state the age of majority is 18. Which of the following is the strongest argument to demonstrate the unconstitutionality of this state statute?

1B

train 381

At a time when Ogawa held Lot 1 in the Fairoaks subdivision in fee simple, Vine executed a warranty deed that recited that Vine conveyed Lot 1, Fairoaks, to Purvis. The deed was promptly and duly recorded. After the recording of the deed from Vine to Purvis, Ogawa conveyed Lot 1 to Vine by a warranty deed that was promptly and duly recorded. Later, Vine conveyed the property to Rand by warranty deed and the deed was promptly and duly recorded. Rand paid the fair market value of Lot 1 and had no knowledge of any claim of Purvis. In an appropriate action, Rand and Purvis contest title to Lot 1. In this action, judgment should be for

3D

train 382

Dillon held up a gasoline station. During the robbery he shot and killed a customer who attempted to apprehend him. Dillon was prosecuted for premeditated murder and convicted. Thereafter, he was indicted for armed robbery of the station. Before the trial, his attorney moved to dismiss the indictment on the ground that further proceedings were unconstitutional because of Dillon's prior conviction. The motion to dismiss should be

2C

train 383

Ellis, an electrical engineer, designed an electronic game known as Zappo. Ellis entered into a licensing agreement with Toyco under which Toyco agreed to manufacture Zappo according to Ellis's specifications and to market it and pay a royalty to Ellis. Carla, whose parents had purchased a Zappo game for her, was injured while playing the game. Carla recovered a judgment against Toyco on the basis of a finding that the Zappo game was defective because of Ellis's improper design. In a claim for indemnity against Ellis, will Toyco prevail?

0A

train 384

While crossing Spruce Street, Pesko was hit by a car that she did not see. Pesko sued Dorry for her injuries. At trial, Pesko calls Williams, a police officer, to testify that, 10 minutes after the accident, a driver stopped him and said, "Officer, a few minutes ago I saw a hit-and-run accident on Spruce Street involving a blue convertible, which I followed to the drive-in restaurant at Oak and Third," and that a few seconds later Williams saw Dorry sitting alone in a blue convertible in the drive-in restaurant's parking lot. Williams' testimony about the driver's statement should be

2C

train 385

The Kernel Corporation, through its president, Demeter Gritz, requested from Vault Finance, Inc., a short-term loan of $100,000. On April 1, Gritz and Vault's loan officer agreed orally that Vault would make the loan on the following terms: (1) The loan would be repaid in full on or before the following July 1 and would carry interest at an annual rate of 15 percent (a lawful rate under the applicable usury law); and (2) Gritz would personally guarantee repayment. The loan was approved and made on April 5. The only document evidencing the loan was a memorandum, written and supplied by Vault and signed by Gritz for Kernel, that read in its entirety: "April 5 In consideration of a loan advanced on this date, Kernel Corporation hereby promises to pay Vault Finance, Inc., $100,000 on September 1. Kernel Corporation By /s/ Demeter Gritz Demeter Gritz, President" Kernel Corporation did not repay the loan on or before July 1, although it had sufficient funds to do so. On July 10, Vault sued Kernel as principal debtor and Gritz individually as guarantor for $100,000, plus 15 percent interest from April 5. "At the trial, can Vault prove Kernel's oral commitment to repay the loan on or before July 1?

3D

train 386

The Kernel Corporation, through its president, Demeter Gritz, requested from Vault Finance, Inc., a short-term loan of $100,000. On April 1, Gritz and Vault's loan officer agreed orally that Vault would make the loan on the following terms: (1) The loan would be repaid in full on or before the following July 1 and would carry interest at an annual rate of 15 percent (a lawful rate under the applicable usury law); and (2) Gritz would personally guarantee repayment. The loan was approved and made on April 5. The only document evidencing the loan was a memorandum, written and supplied by Vault and signed by Gritz for Kernel, that read in its entirety: "April 5 In consideration of a loan advanced on this date, Kernel Corporation hereby promises to pay Vault Finance, Inc., $100,000 on September 1. Kernel Corporation By /s/ Demeter Gritz Demeter Gritz, President" Kernel Corporation did not repay the loan on or before July 1, although it had sufficient funds to do so. On July 10, Vault sued Kernel as principal debtor and Gritz individually as guarantor for $100,000, plus 15 percent interest from April 5. "At the trial, can Vault prove Gritz's oral promise to guarantee the loan?

3D

train 387

Adams, Bennett, and Curtis are charged in a common law jurisdiction with conspiracy to commit larceny. The state introduced evidence that they agreed to go to Nelson's house to take stock certificates from a safe in Nelson's bedroom, that they went to the house, and that they were arrested as they entered Nelson's bedroom. Adams testified that he believed the stock certificates belonged to Curtis, that he thought Nelson was improperly keeping them from Curtis, and that he went along to aid in retrieving Curtis's property. Bennett testified that he suspected Adams and Curtis of being thieves and joined up with them in order to catch them. He also testified that he made an anonymous telephone call to the police alerting them to the crime and that the call caused the police to be waiting for them when they walked into Nelson's bedroom. Curtis did not testify.". If the jury believes Adams, it should find him

3D

train 388

Adams, Bennett, and Curtis are charged in a common law jurisdiction with conspiracy to commit larceny. The state introduced evidence that they agreed to go to Nelson's house to take stock certificates from a safe in Nelson's bedroom, that they went to the house, and that they were arrested as they entered Nelson's bedroom. Adams testified that he believed the stock certificates belonged to Curtis, that he thought Nelson was improperly keeping them from Curtis, and that he went along to aid in retrieving Curtis's property. Bennett testified that he suspected Adams and Curtis of being thieves and joined up with them in order to catch them. He also testified that he made an anonymous telephone call to the police alerting them to the crime and that the call caused the police to be waiting for them when they walked into Nelson's bedroom. Curtis did not testify."If the jury believes Bennett, it should find him

2C

train 389

Adams, Bennett, and Curtis are charged in a common law jurisdiction with conspiracy to commit larceny. The state introduced evidence that they agreed to go to Nelson's house to take stock certificates from a safe in Nelson's bedroom, that they went to the house, and that they were arrested as they entered Nelson's bedroom. Adams testified that he believed the stock certificates belonged to Curtis, that he thought Nelson was improperly keeping them from Curtis, and that he went along to aid in retrieving Curtis's property. Bennett testified that he suspected Adams and Curtis of being thieves and joined up with them in order to catch them. He also testified that he made an anonymous telephone call to the police alerting them to the crime and that the call caused the police to be waiting for them when they walked into Nelson's bedroom. Curtis did not testify."If the jury believes both Adams and Bennett, it should find Curtis

3D

train 390

O'Neal entered into a written contract to sell her house and six acres known as Meadowacre to Perez for $75,000. Delivery of the deed and payment of the purchase price were to be made six months after the contract. The contract provided that Meadowacre was to be conveyed "subject to easements, covenants, and restrictions of record." The contract was not recorded. After the contract was signed but before the deed was delivered, Electric Company decided to run a high-voltage power line in the area and required an easement through a portion of Meadowacre. O'Neal, by deed, granted an easement to Electric Company in consideration of $5,000; the deed was duly recorded. The power line would be a series of towers with several high-voltage lines that would be clearly visible from the house on Meadowacre but would in no way interfere with the house. When Perez caused the title to Meadowacre to be searched, the deed of easement to Electric Company was found. O'Neal appeared at the time and place scheduled for the closing and proffered an appropriate deed to Perez and demanded the purchase price. Perez refused to pay or accept the deed. In an appropriate action for specific performance against Perez, O'Neal demanded $75,000. In this action, O'Neal should

2C

train 391

Pratt sued Danvers for injuries suffered by Pratt when their automobiles collided. At trial Pratt offers into evidence a properly authenticated letter from Danvers that says, "your claim seems too high, but, because I might have been a little negligent, I'm prepared to offer you half of what you ask." The letter is

3D

train 392

Dobbs, while intoxicated, drove his car through a playground crowded with children just to watch the children run to get out of his way. His car struck one of the children, killing her instantly. Which of the following is the best theory for finding Dobbs guilty of murder?

3D

train 393

Darden was prosecuted for armed robbery. At trial, Darden testified in his own behalf, denying that he had committed the robbery. On crossexamination, the prosecutor intends to ask Darden whether he was convicted of burglary six years earlier The question concerning the burglary conviction is

0A

train 394

Osif owned Broadacres in fee simple. For a consideration of $5,000, Osif gave Bard a written option to purchase Broadacres for $300,000. The option was assignable. For a consideration of $10,000, Bard subsequently gave an option to Cutter to purchase Broadacres for $325,000. Cutter exercised his option. Bard thereupon exercised his option. Bard paid the agreed price of $300,000 and took title to Broadacres by deed from Osif. Thereafter, Cutter refused to consummate his purchase. Bard brought an appropriate action against Cutter for specific performance, or, if that should be denied, then for damages. Cutter counterclaimed for return of the $10,000. In this action the court will

1B

train 395

Congress enacts a statute punishing "each and every conspiracy entered into by any two or more persons for the purpose of denying persons housing, employment, or education, solely because of their race." Under which of the following constitutional provisions is the authority of Congress to pass such a statute most clearly and easily justifiable?

2C

train 396

In Peel's personal injury action, Wilson, a physician who had no previous knowledge of the matter, sat in court and heard all the evidence about Peel's symptoms and conditions. Wilson is called to give her opinion whether Peel's injuries are permanent. May Wilson so testify?

1B

train 397

A federal criminal law makes it a crime for any citizen of the United States not specifically authorized by the President to negotiate with a foreign government for the purpose of influencing the foreign government in relation to a dispute with the United States. The strongest constitutional ground for the validity of this law is that

0A

train 398

Arthur and Celia, brother and sister, both of legal age, inherited Goodacre, their childhood home, from their father. They thereby became tenants in common. Goodacre had never been used as anything except a residence. Arthur had been residing on Goodacre with his father at the time his father died. Celia had been residing in a distant city. After their father's funeral, Arthur continued to live on Goodacre, but Celia returned to her own residence. There was no discussion between Arthur and Celia concerning their common ownership, nor had there ever been any administration of their father's estate. Arthur paid all taxes, insurance, and other carrying charges on Goodacre. He paid no rent or other compensation to Celia, nor did Celia request any such payment. Thirty years later, a series of disputes arose between Arthur and Celia for the first time concerning their respective rights to Goodacre. The jurisdiction where the land is located recognizes the usual common law types of cotenancies, and there is no applicable legislation on the subject. If Arthur claims the entire title to Goodacre in fee simple and brings an action against Celia to quiet title in himself, and if the state where the land is located has an ordinary 20-year adverse possession statute, the decision should be for

2C

train 399