TEST BANK CHAPTER 7
DEFECTS AND BREACH OF CONTRACT
Critical Concepts of Canadian Business Law 6th Ed. Weir/Smyth
MULTIPLE CHOICE QUESTIONS
1) What is the meaning of the term “caveat emptor”?
A) an exemption clause in an agreement
B) all of the agreement
C) let the buyer beware
D) let the seller beware
E) negotiate all terms
2) The term caveat emptor means:
A) The seller must disclose facts relevant to the contract.
B) The buyer must inform herself before entering the contract.
C) The courts will set aside a contract if one side is better informed.
D) The buyer and seller must disclose relevant information before entering the contract.
E) “Let the seller beware”.
3) Which of the following creates an exception to caveat emptor?
A) A fiduciary relationship between the parties.
B) A statutory duty to disclose
C) A voluntary disclosure by the defendant
D) Both A and B
E) All of the above
4) Negligent misrepresentation is:
A) an incorrect statement made with due care for its accuracy
B) an incorrect statement made without due care for its accuracy
C) a correct statement made with due care for its accuracy
D) more difficult to prove than fraudulent misrepresentation
E) not grounds to rescind a contract
5) Fraudulent misrepresentation is:
A) a correct statement;
B) an inaccurate statement that may or may not have been done intentionally
C) an incorrect statement made knowingly with the intention of causing injury to another
D) an incorrect statement made without the intention to cause injury to another
E) a type of mistake in contract law
6) Which of the following remedies is available for misrepresentation?
A) injunction
B) specific performance
C) declaration
D) rescission
E) rectification
7) In some cases, the Court will not grant the remedy of rescission. In which of the following situations would a court refuse to grant rescission?
A) resale of the property to a purchaser who knows of the misrepresentation
B) undue haste in claiming rescission
C) the goods involved were very expensive
D) resale of property to a bona fide purchaser who did not know of the misrepresentation
E) rescission is not granted in any of the above situations
8) Which of the following is an element of misrepresentation?
A) The statement is false.
B) The statement must be made a term of the final contract.
C) The statement is one of fact.
D) Both A and B
E) All of the above
9) A misrepresentation is an inaccurate statement that is:
A) A written term of a contract.
B) Made after a contract has been made.
C) Always made by a person clearly knowing that it is false.
D) Made before a contact and written down as part of the contract terms.
E) Made about a key term that induced the contract
10) Mary was selling her house. The purchase asked if it had termites and Mary replied in horror, “absolutely not”. However, it did have termites. But clever insects that they are, they kept well inside the wood so Mary never saw them and didn’t have any idea that they were there. There was no mention of this statement in the contract for sale of the house. Mary’s statement is considered in law to be
A) an innocent misrepresentation
B) a negligent misrepresentation
C) a false warranty
D) of no consequence because it was not included in the written contract
E) of no consequence because she believed that there were no termites and was honestly mistaken
11) Heine Aalto told Sandy Bell that the painting she was purchasing from him was a Picasso and wrote that statement in the purchase contract. An art critic later told Sandy that it was a clever copy that would fool most experts. Heine was surprised. What is the statement by Heine called in law?
A) Negligent misrepresentation.
B) Innocent misrepresentation
C) Breach of a term of the contract
D) Mistake
E) Opinion
12) Angel Cabrera owns a store and is showing it to Crista D Alimonte who wants to lease it to run a coffee shop. Angel thinks he saw a newspaper report that a new bus route with a main stop across from the shop was to be started soon. He tells Crista that a new bus stop is soon to be established. She signs a lease that sets out only the rental amount and the length of the lease. There is no mention of the bus stop. It turns out the city had never said it was planning a new bus route in this area, it was in a different part of the city. Which of the following is TRUE?
A) Cirsta has no remedy because there is no term in the lease guaranteeing that a bus stop would be started at that location.
B) Crista has no remedy because Angel honestly believed a bus stop would be started at that location.
C) The statement by Angel was an innocent misrepresentation.
D) The statement by Angel was a negligent misrepresentation.
E) The statement by Angel was a fraudulent misrepresentation.
13) Angel Cabrera owns a store and is showing it to Crista D Alimonte who wants to lease it to run a coffee shop. Angel thinks he saw a newspaper report that a new bus route with a main stop across from the shop was to be started soon. He tells Crista that a new bus stop is soon to be established. She signs a lease that sets out only the rental amount and the length of the lease. There is no mention of the bus stop. After a year, there is still no bus stop across from the shop, and Crista sues. What remedy could a court award her?
A) Damages for business losses
B) A declaration that the lease was now rescinded
C) A reduction in rent
D) Both A and B
E) All of the above
14) Nancy Kiro is selling her florist shop to Boris Kranz. In the course of negotiating the deal, Boris asks her if she is aware of any reason why the business might be less profitable after he takes over. Nancy tells him that she anticipates that costs generally will rise by 14% in the next 12 months. She does not tell him that her major customer, responsible for nearly 40% of her sales, is planning to leave town in two months. The written agreement contains no warranties. When Boris finds out the bad news – after the deal goes through – can he successfully sue Nancy?
A) No. Nancy did not make any misrepresentation.
B) No. Boris had a duty to make his own inquiries.
C) No. There was no special relationship between the parties.
D) Yes. Once Nancy chose to answer Boris’s specific question, she was obliged to answer it honestly and fully.
E) Both B and C
15) The legal term for the termination of a contract by a court because of a breach of the contract is:
A) rectification.
B) damages
C) rescission
D) an injunction
E) novation
16) Roberts Communications owns a television station. Brodkin Davis, a law firm, wants to advertise on the station. The manager of the station calls his bank and asks them to do a credit check on the law firm. The bank writes back saying that the firm has an excellent rating. Unfortunately, the bank confused Brodkin Davis with Brodkin Davey. The latter firm has excellent credit; the former firm has just been formed and has no credit. They are unable to pay for the expensive advertising Roberts agrees to provide, so Roberts sues the bank. What is the result?
A) Roberts may rescind its contract with the bank.
B) Roberts may obtain damages from the bank.
C) Roberts may both rescind its contract with the bank and obtain damages from it.
D) Roberts has no claim against the bank.
E) Roberts may rescind its contract with the bank and obtain damages from Brodkin Davis.
17) You purchase a computer for $1,500, having being told by the vendor that it is a 2002 model. After receiving it, you discover that it is a 2001 model, worth only about $1,200. What are your remedies?
A) If the vendor was honest but mistaken, you can return the computer and get your $1,500 back.
B) If the vendor should have known that facts, you cannot return the computer but you can get $300 back.
C) If the vendor knew the facts and lied about them, you can return the computer and get damages of $300.
D) If the vendor wasn’t sure about the model, you cannot return the computer, but you can get $300 in damages
E) Buyer beware, there is nothing you can do you should have checked it out more carefully
18) You sell your used car to a stranger. He gives you a cheque he knows is bad. By the time you find that out, he has sold the car to a third party. The third party paid a fair price and did not know that the vendor was a fraudsman. What is the situation now as between you and the third party?
A) You can get the car returned. The fraudsman could not give good title, because he didn’t have it.
B) You are out of luck. Title has passed to the innocent third party.
C) You can get the car returned. You and the third party are both innocent victims, so title reverts to the last party to have good title, which is you.
D) The third party may keep the car, but will have to pay you damages.
E) You can get the car returned, but you will have to pay the third party damages.
19) A court may set aside an otherwise valid contract for which of the following reasons?
A) Undue influence.
B) Duress
C) Misrepresentation
D) Non est factum
E) All of the above
20) Sam Edjidian buys two cars from Silver Strip Auto Sales. One car is for his personal use and one is for his business. The dealer told Sam that both cars were from within the province. This was not put in writing. The dealer believed what he said was true. After purchasing the vehicles, Sam learned they were brought in from another province where safety standards were higher, and where they had both failed the safety tests. There is a standard exemption clause in the purchase agreement Sam signed saying that there are no representations except those in writing. Which of the following statement is TRUE?
A) The exemption clause is ineffective for the car that was bought for personal use.
B) The exemption clause is ineffective for the car purchased for business use.
C) The exemption clause is ineffective in both agreements.
D) The exemption clause is effective in both agreements.
E) The exemption clause is ineffective in British Columbia only
21) Assume you live in British Columbia or another province with similar consumer protection legislation. You take your car in for repair of the carburetor, and the service person falsely insists that you need a new exhaust pipe. You get the pipe. The contract you sign contains an entire agreement clause. Do you have a remedy?
A) Yes. The service person engaged in a deceptive practice. This is an offence for which a penalty can be imposed.
B) Yes. The entire agreement clause is ineffective under such legislation.
C) Yes. The representation concerning the pipe is a term of this consumer contract.
D) Both B and C
E) All of the above.
22) Sheldon Hamer quoted a price to Cynthia Hui and she placed an order based on that price. Sheldon quoted too low, forgetting to include shipping and handling charges, so he now wants to get out of the deal, claiming that the price difference is so great that Cynthia should have known something was wrong. What is the name of the legal grounds that Sheldon will use in a court section to set aside the transaction?
A) Misrepresentaion.
B) Unjust enrichment
C) Unfair advantage
D) Mistake
E) Non est factum
23) Blue Skies Travel charges Ok-Bong Lee a total of $3,500 for a trip to North Korea. After Lee pays the invoice, Blue Skies discovers that it failed to charge a special tax levied by the North Korean government on foreign travelers. Blue Skies sends an additional invoice to Lee, who refuses to pay, saying a deal is a deal. Which of the following is correct?
A) This is a mistake of fact on the part of Blue Skies. It is entitled to rectification of the contract –that is, to include the extra charge.
B) This is a mistake of law on the part of Blue Skies. The contract is binding on it.
C) This is a mutual mistake. The contract cannot be rescinded or changed.
D) This is a mistake as to interpretation of the contract. Blue Skies is entitled to damages.
E) Lee cannot take advantage of Blue Skies’ unilateral mistake, and must pay the additional charge.
24) Olympics Inc. knows that Ray-Duke Construction is on the edge of possible bankruptcy and desperately needs money to meet its payroll next week. Olympics owes Ray-Duke $100,000 for construction work. Olympics says to Ray-Duke, Take $50,000 in full settlement or sue us. It will be two years before you get a judgement in court.” Ray-Duke accepts because it can’t wait two years. What remedy, if any, does Ray-Duke have to get the other half of the money from Olympics?
A) Misrepresentation.
B) Undue influence
C) Non est factum
D) Economic duress
E) Ray-Duke has no remedy.
25) Andrew’s restaurant was experiencing financial problems. His sales were down and he needed help. Andrew requires $20,000 to cover outstanding accounts within three days or face closing the restaurant. His bank refused to increase his line of credit so Andrew went to his accountant for suggestions. The accountant told him he could lend Andrew $20,000 but only if Andrew signed over a 50% interest in the business. In desperation, Andrew agreed. If Andrew wants to have the agreement set aside, which of the following would he rely on?
A) Duress.
B) Mistake
C) Misrepresentation
D) Non est factum
E) Restitution
26) Howard Ferguson is a lawyer who has acted for Joe Gage over the years. Joe wants to retire, sell his house in Canada, and move to Florida. Howard knows the house would sell for about $200,000. He offers Joe $150,000 for it. Joe agrees to this price, but later finds out the house’s real value Which of the following is TRUE?
A) There is nothing Joe can do to get the deal because he made a contract.
B) Howard was Joe’s lawyer and the contract will automatically be set aside.
C) The onus will be on Howard to show that the deal was to Joe’s benefit.
D) Howard stands in a fiduciary relationship to Joe.
E) Both C and D
27) Which of the following statements is FALSE? Undue influence
A) can be presumed by the courts
B) means one party to a contract has taken an unfair advantage over another party
C) can be rebutted by independent legal advice
D) will be assumed to exist in a contract between a small company and a large company
E) can be assumed to exist in a contract between a husband and a wife
28) Between which of the following parties would a fiduciary relationship exist giving rise to a presumption of undue influence?
A) Between a bus driver and a regular passenger.
B) Between an account and his client
C) Between a lawyer and his client
D) Both A and C
E) Both B and C
29) Lois Lane has owned and operated a consulting business for five years. She guarantees a loan that her husband, Clark Kent, a mild-mannered reporter, takes out in order to buy some real estate as an investment. Note that Lois will not benefit directly from this investment. The investment fails, the husband declares bankruptcy, and the bank sues Lois on her guarantee. Lois pleads undue influence. Which of the following statements is TRUE?
A) There is a presumption of undue influence when a wife acts as a guarantee for her husband.
B) There is a presumption of undue influence when a bank takes a guarantee from a party who receives no benefit from the main transaction (the subject of the loan).
C) Lois must establish undue influence on the fact of this particular case.
D) The fact that Lois has her own business is likely to negatively impact any claim of undue influence.
E) Both C and D
30) A contract may be nullified or cancelled due to:
A) duress
B) undue influence
C) negligent misrepresentation
D) innocent misrepresentation
E) all of the above
31) There are two types of undue influence:
A) innocent and negligent
B) actual and expressed
C) presumed and expressed
D) actual and presumed
E) innocent and intentional
32) Mary Chriset was 81 years old and suffered from Alzheimer’s. In addition, she had poor eyesight. She resided in a nursing home, but had two daughters who lived abroad. One day, while she was out walking by herself, she was befriended by a young lady named Vicky Nell who was significantly younger than she was and impeccably dressed. Vicky visited her very often at the nursing home and after a while presented three documents for her to sign. She told Mary that the documents were permission slips for Mary to go on outings with her. It was discovered later that Mary had signed transfer documents for three of her houses to Vicky for $2,000 each. If Mary knew she was signing transfer documents for the three properties, but thought it was for a higher price, which of the following statements would be applicable:
A) she could claim damages for loss of income
B) the defence of non est factum would not be available to her
C) the defence of non est factum would be available to her
D) the defence of duress would be available
E) the contract would be enforceable as she knew it was a transfer
33) Dale sold an oil painting to Jane for $1,000. Jane was to pick it up the next day, but an art dealer came into the store before she arrived and told Dale it was a rare painting by a famous artist and offered Dale $25,000. Dale didn’t tell the dealer about his sale to Jane, and Dale sold it to the art dealer for $25,000. As a result
A) Jane can successfully sue Dale for breach of contract and seek pecuniary damages
B) Dale’s contract with Jane was void due to innocent misrepresentation
C) Dale’s contract with the art dealer was void for public policy reasons
D) Dale’s contract with Jane was void due to mistake
E) Jane can sue both Dale and the art dealer
34) Al sold a car to Ted for $4,000. One week after Ted got the car he realized that the rear window wiper did not work properly. Ted says it will cost him $400 to fix he wiper and he wants Al to pay for it, even though they had never discussed the wiper when the deal was made. Al said he is not paying for it. Most likely
A) Al is liable for a minor breach of contract
B) Ted can successfully sue for innocent misrepresentation
C) Ted can successfully sue for fraudulent misrepresentation
D) Ted should sue for negligent misrepresentation as fraudulent misrepresentation is hard to prove
E) Al does not have to pay for the wiper as he did nothing wrong.
35) Which of the following statements is FALSE? A minor breach of contract
A) is a breach of warranty
B) does not end a contract
C) gives the plaintiff the right to sue for damages
D) allows the plaintiff to cancel the contract or sue for damages, it is their choice
E) requires the plaintiff to mitigate their losses if they sue for breach of contract
36) If a contract varies so much from community standards of commercial morality that it should not be enforced the court will rule the contract is
A) void as it is unconscionable
B) void due to duress
C) void due to unfairness
D) void due to undue influence
E) void due to mistake
37) What must be established for a court to rule a contract is unconscionable?
A) unequal bargaining power
B) the contract was grossly unfair
C) one party was significantly weaker due to inabilities or distress
D) the transaction was hasty and careless
E) all of the above
38) If a person signs a written contract in a language they do not understand the contract could be void due to
A) mistake
B) misrepresentation
C) duress
D) non est factum
E) undue influence
39) If a person signs a written contract and they do not know how to read, the contract could be void due to
A) mistake
B) misrepresentation
C) duress
D) non est factum
E) undue influence
40) Karl agreed to sell his boat to Jeff on July 5 for $10,000 and Jeff paid Karl a $1,000 down payment. They arranged to meet at the marina on July 12 to transfer the boat. When they arrived at the marina on July 12 they were shocked to see the boat had been totally destroyed by a huge storm that had swept through the area on July 10. As a result
A) there is a major breach of contract and Jeff can sue for any extra costs he incurs when he buys a replacement boat
B) the contract is void due to innocent misrepresentation
C) the contract is frustrated and Karl must repay the $1,000 to Jeff
D) the contract is breached but Karl can keep the $1,000
E) the contract is void as it is unconscionable
41) Karl agreed to sell his boat to Jeff on July 5 for $10,000 and Jeff paid Karl a $1,000 down payment. They arranged to meet at the marina on July 12 to transfer the boat. When they arrived at the marina on July 12 they were shocked to see the boat had been totally destroyed by a huge storm that had swept through the areas on July 2. As a result
A) there is a major breach of contract and Jeff can sue for any extra costs he incurs when he buys a replacement boat
B) the contract is void due to innocent misrepresentation
C) the contract is frustrated and Karl must repay the $1,000 to Jeff
D) the contract is breached but Karl can keep the $1,000
E) the contract is void due to mistake and Karl must repay the $1,000 to Jeff
42) When parties anticipate than various unexpected events may occur and they allocate who shall bear the risk if any of these unexpected events occurs, the contract will include
A) an implied term
B) an entire agreement clause
C) a force majeure clause
D) a warranty
E) a fundamental breach clause
43) A force majeure clause is created in consideration of a contract situation where there could be
A) duress
B) undue influence
C) non est factum
D) frustration
E) breach of warranty
44) Atlas Shipping Inc. is a shipping company that agreed to transport goods by ship for Everest Industries Inc. from Florida to Peru. Atlas had planned to take its ship through the Panama Canal and the journey would take 7 days and the charge to Everest was $10,000. Everest paid $10,000 in advance. The Panama Canal however was closed due to an earthquake. It was still possible to get from Florida to Peru by ship but it would mean having to travel down the east coast of South America and then up the west coast to Peru. It would take over 3 weeks and the cost of this would be $40,000. As a result
A) Atlas can claim the contract was frustrated and must return the $10,000
B) Atlas can claim the contract was frustrated but keep $1,000
C) Everest can insist Atlas still ship the goods via the longer route, but would have to pay $40,000
D) Everest can insist Atlas still ship the goods via the longer route and would not have to pay any more than the $10,000 it had already paid
E) Everest can insist that Atlas get the goods to Peru using truck or rail transportation
45) Katz Construction had agreed to build an extension on Oliver’s house starting on May 20. On May 10th Katz contacted Oliver and said it would not be doing the work as it had current financial problems. This is an example of
A) a breach of warranty
B) an anticipatory breach
C) a minor breach
D) frustration
E) a breach of condition
46) A breach of a condition is also referred to as
A) a breach of warranty
B) a minor breach of contract
C) a major breach of contract
D) an anticipatory breach
E) a fundamental breach
47) Discharge of a contract occurs when:
A) the parties have no further obligations to each other
B) the parties to the contract mutually agree to the obligations being brought to an end, even if the promises made under the contract had not been completed
C) all the parties have done exactly what they were required to do under the terms of the agreement
D) the promises the parties have made have come to an end
E) All of the above
48) Which of the following statements is FALSE?
A) When the parties to a contract have done everything that they promise to do, the contract is discharged.
B) If the performance of a contract is made impossible through no fault of either of the parties, the contract is said to be frustrated.
C) Frustration excuses the parties from performance of the contract.
D) Force majeure and an “act of God” are synonymous.
E) Natural disasters can render it impossible to complete a contract, but it is not a breach of contract
49) The measure of damages in contracts cases is
A) The cost to the injured party of the consequences of a breach.
B) Reasonable foreseeability
C) Only those damages which are not considered too remote.
D) Those losses that happen in the normal course of business.
E) Both B and C
50) Damages will be awarded for losses where there is an awareness of special circumstances. For these damages to be awarded, which of the following, if any, applies?
A) The losses must be in the normal course of business.
B) The special circumstances must be told to the other party at the time of making the contract.
C) The other party knew and agreed to be liable for these special losses
D) The other party must have been able to foresee the special circumstances.
E) None of the above.
51) Danny LaBarbera made a contract to buy a vintage car from Dupree Bolton for $20,000. He had already arranged to resell the car to a collector for $30,000. Dupree backed out of the deal, and Danny was unable to find a replacement. Danny sues Dupree. What are his damages?
A) $10,000. This will place Danny in the same position as if the contract had been fulfilled.
B) $20,000. This will satisfy Danny’s expectation interest.
C) $30,000. This is what Danny expected to receive from his collector
D) Zero. Danny is no worse off than he was before the breach, since he didn’t pay Dupree any of the $20,000.
E) $5,000. Danny was obliged to mitigate his damages.
52) Which statement best expresses the meaning of expectation interest?
A) Put the parties back into the same position as if the contract had not been made.
B) Put the parties into the same position as if the contract had been performed.
C) Change the agreement to reflect the true intentions of the parties.
D) Declare the contract void from the beginning.
E) Declare the contract not binding from the time of breach.
53) A printing company buys a piece of equipment which does not perform as set out in the contract. The company sues for breach of contract. The cost of repairing the equipment is $1,000. The company loses $10,000 in profits up to the time of trial and it estimates that it will lose a further $25,000 until the equipment can be fixed. Which of the following is TRUE?
A) The plaintiff’s special damages are $1,000.
B) The plaintiff’s special damages are $10,000.
C) The plaintiff’s special damages are $11,000.
D) The plaintiff’s special damages are $25,000.
E) The plaintiff’s special damages are $36,000.
54) A printing company buys a piece of equipment which does not perform as set out in the contract. The company sues for breach of contract. The cost of repairing the equipment is $1,000. The company loses $10,000 in profits up to the time of trial and it estimates that it will lose a further $25,000 until the equipment can be fixed. Which of the following is TRUE?
A) The plaintiff’s general damages are $1,000.
B) The plaintiff’s general damages are $10,000.
C) The plaintiff’s general damages are $11,000.
D) The plaintiff’s general damages are $25,000.
E) The plaintiff’s general damages are $36,000.
55) Which of the following does the concept of mitigation of damages require?
A) The party who breached the contract must pay the difference between what the innocent party received and what he should have expected to receive under the contract.
B) The parties to the contract must self-insure for any potential risks under the agreement.
C) The innocent party to the breach of contract must take reasonable steps to limit or minimize its losses.
D) The innocent party must deduct normal expenses incurred to earn profit from the gross income.
E) Both A and C
56) Which of the following statements concerning exemplary damages is FALSE?
A) They are also called extraordinary damages.
B) They are awarded as a form of punishment
C) They are also called punitive damages.
D) They are rarely awarded in a contract dispute.
E) This defendant must have committed a separate actionable wrong.
57) Sol Turek, an impresario, hires Susan Sharna to perform a one-woman show, and later cancels the deal. I is impossible to know exactly what ticket sales would have been, but we do know that Susan spent about $10,000 putting the show together. Fortunately, she was able to get another gig, which was a big success. Can she sue Sol, and if so, what can she expect to receive?
A) No. This is contract for personal services, so specific performance is not available.
B) Yes, but her damages are only nominal.
C) Yes. Her damages will be the best estimate that the court can make of what her lost profits were.
D) Yes. Her damages will be $10,000.
E) Both C and D
58) A manufacturer agreed to ship items at a price of $2,000 to a retailer. The retailer’s normal profit on its sale would be $1,000. The manufacturer failed to ship the goods. They are easily available elsewhere. Based on these facts what is the retailer’s best remedy?
A) Specific performance
B) Damages
C) An accounting
D) An injunction
E) Quantum meruit
59) Which of the following statements is FALSE?
A) Quantum meruit is part of the law of restitution
B) Quantum meruit is a means of correcting an unjust enrichment.
C) In awarding damages under quantum meruit, the courts must estimate the value of a benefit conferred by the plaintiff.
D) Quantum meruit is resorted to when a remedy is not available on ordinary contract principles.
E) None of the above
60) Managami Forest Products Co. learns that the local news is going to broadcast a false story that the company is polluting. Managami wants to stop the news broadcast before it airs. What is the remedy that is will seek?
A) Specific performance
B) Anton Piller order
C) Injunction
D) Quantum meri
E) Rectification
61) Syed Iqbal agrees to purchase a house on a hill overlooking a lake from Savia Jahangir for $300,000. The transaction is to close in two months. Just after the agreement is signed, the housing market increases dramatically so that the house is now worth $600,000. Syed wants the house; Savita refuses to complete the deal. Syed does locate a similar house for $600,000, although it lacks the unique view of Savita’s house and is not right on the lake. Which of the following statements is true about the remedies available to Syed for breach of contract?
A) Syed can seek a court order directing Savita to complete the sale.
B) Syed can only purchase the replacement house and obtain an order that savita pay for the additional cost ($300,000).
C) Syed can obtain an order requiring Savita to pay the entire value of the replacement house, $600,000.
D) Syed can sue for both specific performance and damages of $300,000.
E) Syed had a duty to mitigate his damages, so he can obtain only nominal damages from savita.
62) If an “innocent party” fails to mitigate his damages, the court will
A) reduce the damages payable to the “innocent party”
B) pay damages to a third party.
C) pay damages to the party who caused the loss;
D) increase the damages payable to the “innocent party”;
E) award punitive damages as well
63) “Specific performance” is
A) an order requiring the defendant to undertake a specified task, usually to complete a transaction;
B) an order for rectification of the contract.
C) an order for pecuniary damages to be paid by the defendant
D) an order instructing one party to halt a particular process or action
E) an order for a defendant to pay damages equal to business losses
64) An interlocutory injunction is
A) an order to take money from the losing party’s bank account
B) a temporary injunction which lasts only until trial of a lawsuit
C) a permanent injunction which lasts beyond trial of a lawsuit
D) an order to add extra defendants to a lawsuit
E) an order to add extra plaintiffs to a lawsuit
65) If the Court believes that the defendants might move their assets from the jurisdiction before the case comes to trial, it can order them not to do so by granting:
A) specific performance
B) a Mareva Injunction
C) a declaration
D) an Anton Pillar order
E) a rectification order
66) An Anton Piller order
A) is a surprise search warrant in a civil action
B) states the defendant must not move its assets out of the jurisdiction
C) states the defendant must pay damages
D) rectifies a mistake in a contract
E) prevents a party from disclosing the contents of a settlement agreement
67) Rectification is
A) an order indicating a major breach of contract occurred and the contract is void
B) a letter from one party to the contract to the other party stating that there is a mistake in the contract
C) a Court order which corrects a written document to reflect accurately the contract made by the parties
D) a judgment made by the Court granting damages to an innocent party
E) a letter from the Court which states that there is a mistake in the contract
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A NOTCHED GUN
By Walt Coburn
Walt Coburn gives us a moving little story that swings a dramatic arc from the Old West to the battlefields of France.
Sam Graybull was a killer. He proved it now as he backed slowly out of the Valley Bank with a smoking Colt in one hand and a gunnysack full of currency in the other. The teller had made a move for the automatic below the money counter. Sam Graybull’s bullet had caught the unfortunate man between the eyes.
The cashier, his movements sluggish from stark fear, made a break for the side door and was shot in the back.
“You’ll be next,” he told the young lady stenographer, “if you let out one yap.”
The blizzard outside muffled the sound of the shots. There was no one abroad in the little storm-swept cow town to block San Graybull’s departure. He mounted the horse that stood humped in the snow. In five minutes he was lost in the storm, made thicker by the shadows of dusk. He left no telltale sign. Because the country between Milk River and the Bad Lands was as familiar as a child’s
back yard, he had no fear of capture. He tied the sackful of money to his saddle and fashioned a cigaret with thick, blunt fingers that were steady.
“That damn’ bank dude’s mouth flopped open shore comical.” The rattle of Sam Graybull’s laugh was blurred by the wind.
No fear of pursuit marred the killer’s flight. He knew the ways of sheriff’s posses. They would hole up at the first ranch. That is why he had held off till the storm broke, then rode into town and stuck up the bank. A one man job. Cunningly planned, cold bloodedly executed. The lives he had taken were but tally notches on his gun, no more. He would boast about it when he got drunk.
“That other’n piled up like a beef.”
The storm swirled and moaned. The horse drifted with the wind, headed south for the Bad Lands. A man could hole up there and get plenty drunk. Grub in the cabin. Wood enough for a month. Hay aplenty. A keg of moonshine licker. When a man got hard up for company, there was Pete Peralta and his wife across the river. Pete was a damn’ fool but he knowed how to keep his mouth shut. Pete was all right. Just didn’t have the guts to go out and take chances, that was all. Mebbe if it wasn’t fer the missus, Pete might swap a hayfork fer a gun and pick up some easy money. Pete’s missus was just a young thing. Purty enough, so far as looks went. Kinda quiet. Scairt, like as not, because she wa’n’t used to men that had guts. But she had sense. Close mouthed like most ’breed women. No damn’ sheriff’d ever git anything outa Rose Peralta.
It was getting dark now. Black as a hat. Sam Graybull shrank into his buffalo coat and let his horse drift along. He rode good horses. Whenever Sam Graybull stole a horse he picked a good one. It was nearly a hundred miles into the Larb Hills where they dropped in timbered ridges to meet the Missouri River. To travel all night in a blizzard was only part of a man’s job. The same as killing those two bank dudes. And by evening tomorrow he would be at his cabin in the Bad Lands.
“That keg’ll look good.”
Sam Graybull liked whisky. He liked whisky like most men like women. Liked the color of it in a glass. Liked the gurgle of the stuff as it spilled out of a jug into a tin cup. Talk about music. The burn of it when a man tilted a jug and drank it thataway. God, fer a drink right now.
But Sam Graybull dared not drink till he got home. Tried it onct. Fell off a horse and froze both feet sleepin’ in the snow. Peter Peralta was horse huntin’ and found him. Pete’s missus taken care of him. Pete wasn’t much of a hand to drink. A few shots and Pete had aplenty. Just enough to make that fiddle talk good. “The Red River Jig” and “Hell Among the Yearling’s” and “Cross Eyed Moses.” ’Breed tunes.
Sam hadn’t seen Pete and his missus since early last spring. They were the only friends he claimed. A man on the dodge can’t have many friends. Not when there’s a big bounty on his scalp. That’s the way most of the boys got theirs. Trustin’ somebody. Hell, them fool posses never got nowhere. Milled around. And when they followed Sam Graybull they kept bunched. Damn’ right they did.
Sam had been in Wyoming all summer. Gamblin’ some amongst the sheep shearers. Gettin’ drunk and eatin’ good. Nobody the wiser. Who’d look around sheep camps fer a cow hand? Then he’d up and shot that Mexican shearer and had to drift back into Montana again. Too quick on the trigger.
Sam’s rattling laugh broke forth again. He took out his .45 and with the nail file blade of his jacknife, he made two fresh notches on the gun’s bone handle. That was the Indian in him. Sam was about a quarter breed Sioux. He was proud of those notches. Six, all told, counting the two bank dudes. Not bad fer a man thirty-one. He’d tell Pete and his missus. Pete’d grin kinda silly. The missus’d just sit and shiver like she was took with a chill. Scairt of a man that had guts. A man that was quick on the trigger.
Into the black maw of the cañons and draws. Snow piling in till a man felt smothered. Black as a hat. Cold. Give a dollar fer a drink. Hell, give five dollars. Ten. There was money a-plenty in that sack. Whisky money.
Topping out on a long ridge. Into a dawn that was the color of dirty slate. A wind that bit plumb into a man’s innards. Didn’t dast drop into a ranch or even a sheep camp fer grub. There'd be no fool sign fer a posse to pick up. Nobody but Pete knew of that little log cabin tucked away in a pocket of the Bad Lands. Pines and brush and rocks. Grub cached. Shoot a black-tail buck or a yearlin’. What’s two days without grub? Make a man eat good when he got it. Whisky and meat. Good whisky and fat meat. Half way home now. Safe as dog in a hole.
Keep to the coulees, just under the rim of the ridges. No use skylinin’ a man’s self. All day. Horse gittin’ laig weary. Stumbled into a badger hole. No harm done. Wind that shriveled a man’s heart. Wind that cut the hide on a man’s face. Feet like ice cakes. Like the blood was dried up. God, but that whisky’d send it chargin’ through a man’s veins, though. Fill a jug and go acrost to Pete Peralta’s. A man needed talk when he’d bin alone so long. Pete’d drag out the fiddle. “Red River Jig.” “Hell among the Yearlin’s.” “Blue Bottles.”
He pulled into his hidden cañon that afternoon. A frost seared, fur clad figure, red eyed from the wind and loss of sleep. A lone figure in a vast white world. Cold, hungry, craving whisky as a man on a parched desert craves water. With a fortune tied in a gunnysack. Two fresh notches on the bone handle of a short barreled Colt .45. A laugh rattling in his throat.
Hay in the barn. Pete had put up that hay. The spring above the cabin was warm. It never froze. Had an iron taste to it.
Sam Graybull watered and fed his gaunt horse. While no law of God or man had weight with the killer, he never violated that creed of the range that commands its men to care for a horse that has carried a man. After that he may look to his own comfort.
Sam Graybull found the whisky keg buried under the hay. He found a tin cup, and with a corner of his fur coat he wiped some of
the dust from inside it. Then he squatted there by the keg and drank a cup of whisky as if the stuff were water. He sat there for better than half an hour. Drinking until the ache thawed from his bones and the hunger pains left his empty stomach. Now and then he laughed. The horse would give a start and look around, ears erect. Sam Graybull’s laugh was unlike the laughter of any other man because there was no humor in it. More like a death rattle.
He was steady enough on his feet when he got up and went to the cabin. As steady as a man can be when he has been frozen into the saddle for a night and a day, and when he is bundled in fur coat and chaps and four buckle overshoes.
“Fill a jug and go visit Pete Peralta. To hell with cookin’. Pete’s missus’ll sling up some grub.” His cracked, frost blackened lips split in a grin as he saw smoke coming from the Peralta cabin, across the river among the skeleton cottonwoods.
He found a jug and filled it. Then he kicked off his chaps and located a pair of snowshoes. It was as easy goin’ afoot as it was ahorseback. He slung the jug about his shoulder with a bit of rope. Then he took his carbine and fitted it into a worn buckskin sheath.
“Whisky. Ca’tridges. All set.” Then he remembered the money in the gunnysack. “Whisky’s takin’ holt.” He hid the money in the hay. Then, shuffling along on his webs, he crossed the river to Pete Peralta’s place.
II
Even before he rapped on the door, Sam Graybull sensed that something was wrong at the home of Pete Peralta. Horses in the hay corral, nibbling from the snow capped stack. Gate down. No tracks around. Cattle, gaunt flanked and hollow eyed, bawling for water in the lower pasture. Woodpile buried in the snow. Yet there was smoke coming from the chimney. A light inside, against the coming dusk.
“Come in!” Was that the voice of Pete Peralta? Sam could not see through the window. Frost had made the panes opaque.
Cautiously Sam Graybull opened the door. His jug and carbine laid aside, he held his Colt in his hand, the hammer thumbed back. He kicked the door open.
For a moment Sam Graybull stood there, half crouched, ready. Then he straightened. The gun hammer lowered gently and the weapon went back into its holster.
For propped up on a bunk beside the stove, one leg in rude splints, sat Pete Peralta. A hollow eyed, gaunt cheeked, unshaven Pete.
“Sam! Sam Graybull!” His voice was like the hoarse call of a crow. But there was a prayer in its welcome, as he voiced the name of the killer.
From the bedroom beyond came a broken, moaning sob. A woman’s sob. A woman half delirious with pain.
“Horse fell and busted my leg . . . About a week ago . . . Rose took care of me until she had to quit . . . She's goin' to have a baby and no doctor inside a hundred miles. I reckon she’ll die.”
It took Sam Graybull some seconds to comprehend fully. A pint or more of raw whisky on an empty stomach does not make for quiet thinking. The fact that he could retain even a semblance of his faculties proved the toughness of the killer.
“Doctor, eh?” Sam Graybull pushed back his muskrat cap and ran blunt fingers through his shock of coarse black hair. “Doctor? Yeah, you sure need one, don’t you, Pete?”
“Not me, Sam. Her. She’s out of her head, kinda.”
“Dyin’, Pete?”
“She will, I reckon. There has to be a doctor when a baby comes.”
Sam Graybull passed his hand across his eyes. He knew nothing of childbirth. There had never been room in his killer’s heart for sympathy for man or woman. Life and the losing of life meant but little to him. He nodded, black brows knit in a thoughtful scowl. Then he stepped outside and brought in the jug.
He poured three drinks into tin cups.
“Do us all good, Pete. Then we’ll kinda figger this thing out.” He took one of the cups and went into the next room.
“Howdy, Rose. Git outside o’ this. Nothin’ like it to kill pain.”
Dimly, through eyes that were mere slits of red, he saw the white face of the girl. White as the pillow against the mass of black hair. He lifted her head and held the cup against the lips that seemed drained of blood.
“The pain--the pain. . .”
“Hell, ain’t it? But that drink’ll do you good.”
He went back into the other room and handed Pete his cup.
“Here’s luck, Pete. Down ’er. More where that come from.”
Sam gulped down his drink without a grimace. His brain seemed to be clearing.
“Where do you keep your pencil and paper, Pete?”
“That shelf. God, Sam, if we could only do somethin’ to help her.”
“Keep your shirt on.” Sam found the writing pad and pencil. He handed them to the crippled man.
“Write a note to the doctor, Pete. Tell it scary.” Sam pulled on his cap again. “I’ll be ready by the time you git it wrote.”
“Where you goin’, Sam?”
“Out to saddle up the best horse you got. I’m goin’ fer the doctor. I’ll stop by the nearest ranch and have ’em send over somebody to
ride herd on you.” The door banged shut behind him.
Sam caught Pete’s best horse. When he had saddled the animal, he came back inside.
“Got that note finished?”
“Yes. But you can’t make it into town, Sam.”
“The hell I can’t. The storm’s quit. I know the road, and I ain’t so drunk but what I kin ride. Lemme have that pencil.”
He scrawled something at the foot of the note. Then he folded the paper and put it into his pocket.
“Hang and rattle, Pete, till the doc gits here.” He poured some of the whisky into an empty vinegar bottle and put the corked bottle into his overcoat. Then he filled the two cups.
“Here’s how, Pete. If the kid looks like you, I shore feel sorry fer the critter.”
Sam tossed down his drink and before Pete Peralta could say a word, he was gone.
III
It was almighty hard luck, the way things had turned out for a man. When the only friend a man had was laid up with a busted laig and a sick wife. No “Red River Jig”. No fire to set by. No Pete to talk to and tell how comical that bank dude looked when he dropped. No warm grub. Only that bottle. Better drop past the cabin and fill a jug. When a man ain’t slept ner et he’d orter have a jug along to keep him alive.
He stopped at his cabin long enough to fill the jug. Then he pulled out. He rode into a Long X line camp. A slit eyed, frost blackened man who staggered a little when he walked. The two cowpunchers stared hard at him.
“Peter Peralta’s in bad shape. Broke a laig. His missus is dyin’. I’m ridin’ fer a doctor. One o’ you boys git over there and look after things.”
He wolfed some meat and beans and gave them a shot out of his jug. One of the cowpunchers was getting ready for the trip to Pete’s. Sam Graybull climbed back into the saddle and rode on.
The storm had quit. The stars glittered like white sparks against the clear sky. The moon pushed up over the ragged ridges. Sam Graybull swayed a little as he rode, half asleep, half awake, back along the trail to town.
He took some tobacco and rubbed it into his eyes to sting them open. Now and then he took a drink from the jug. Not as big a drink as he wanted. Just enough to keep a man alive. That grub made a man sleepy. A paunch full of meat always made a man sleepy. Almighty hard luck that a man couldn’t git off and lay down. For five minutes. Yeah. Five hours. Be froze stiff as a stick. Hadn’t he froze his feet thataway? Wouldn’t he a-died there only Pete come by? Hell, he was payin’ Pete back right now. A man paid his debts thataway. Took guts, too. But when a man’s got one friend on earth, he’d be a hell of a kind of man not to lend a hand. It took guts. Somethin’ Pete
didn’t have. Pete was a chicken hearted cuss. With his wife and his fiddle. Never taken a chance. Never would get nowhere. Like a cow pasture. A muley cow. Well, no man had ever sawed Sam Graybull’s horns. No fence made ever held him. No jail, neither. Never bin ketched. Them as tried it had some hard luck. Have a drink. Damn that cork. A man’s hands stiff and numb. There she comes. Good whisky. Thawed a man’s belly. Fightin’ whisky.
Sam Graybull’s laugh grated on the silence of the winter night. There’d be fightin’ a-plenty if a man run into that fool posse. Sam took a beaded buckskin pouch and put into it the note to the doctor. Then he fastened the pouch around his neck outside his coat. He moved with a dogged, sluggish precision. Like a machine that needs oil. He lost one of his mittens. The right mitten. He put the other mitten on his right hand, leaving the left one bare. Sam Graybull’s right hand was his gun hand.
Out of the hills and onto the main road to town. Daylight now. Sleepy. Dozing in the saddle. Ridin’ that horse like he owned him. Payin’ off the only debt he owed to his only friend.
Yonder was Beaver Crick. Old gray wolf a-comin’ outa the bare willers. With a belly full of meat, headin’ fer a safe place to sleep it off. Sam never killed a wolf. Hell, he was a wolf, hisself. A he-wolf. A killer. No rabbit, like Pete Peralta. Pete, whinin’ over a busted laig. What’d he do if he had a .30-.40 slug in him and had to gouge it out with a jacknife? Sam Graybull had done that.
What’s a-comin’ yonder? Horsebackers. A dozen er more. Posse men. Time fer a drink. A big’n this time. No nibble. Bin holdin’ off. Waitin’.
“Here’s lookin’ at you boys!” Sam Graybull’s hoarse voice carried a note of triumph. “Here’s lookin’ at you acrost gun sights!” And he left the fiery stuff gurgle down his throat.
A rifle bullet whined past Sam Graybull’s head. He taunted the marksman with a yell of derision and, tossing aside the jug, jerked his carbine and rode at a run straight for the men.
A hail of bullets met his rush. Sam Graybull’s horse somersaulted, shot between the eyes. Sam tried to kick his feet from the stirrups.
Too late. Horse and man crashed together. A dull pain shot through the killer’s leg. That leg was pinned under the dead weight of the horse. Bullets spatted and droned. Sam Graybull emptied his carbine. Two of the posse felt the searing sting of the outlaw’s bullets. Sam pulled his six-gun—the .45 that had taken deadly toll of human life. His thumb fanned the hammer.
“Come an’ git it! Come on, you red necks!”
Black lips bared from tobacco stained teeth. Slit eyes swollen almost shut. It took guts.
Something white hot stabbed Sam Graybull’s chest. He hardly felt it. Above the flat spat of rifles in the dawn, sounded the mirthless laugh of Sam Graybull. A laugh that sounded like the death rattle. Tumbing the hammer of an empty gun. Then the weary head dropped back into the snow. Sam Graybull, killer, was dead.
The last of the whisky gurgled out of the uncorked jug into the trail.
“He must have got drunk, blind drunk, and lost his way.”
“The sheriff pulled the dead outlaw clear of the horse. Grimly triumphant, the grizzled old officer examined the body of the killer. Then he opened the pouch and found the note.
As he read it, there in the sunrise of that winter morning, the warm glow of victory chilled. He turned to a man who carried a small black bag instead of a gun.
“This is fer you, Doc. You’re wanted down on the river.” He handed over the note. Then he turned to his men.
“Handle Sam easy, boys. He come back a-purpose, to do the only decent thing he ever done in his life. Pete Peralta’s wife is about to have a baby. Sam Graybull come to fetch Doc. Handle ’im easy.”
The sheriff and Doc Steele rode along the trail together. Doc read aloud the postscript to Pete Peralta’s note.
“The bank money is in a sack under the hay at my cabin. What bounty there is on my hide goes to Pete
Peralta. If the kid’s a boy, name him Graybull. Use the bounty money to educate him. So long” —SAM GRAYBULL.
And so it was that Doc Steele brought into the world a boy named Graybull Peralta. Some of the A.E.F. will remember him as Captain Graybull Peralta, the fighting chaplain of the —th Division, made up of men from the cow country. He was killed in action in the Argonne. In the pocket of his blouse was a bullet drilled, blood soaked Bible. In his hand was a bone handled six-gun with six notches filed on its age yellowed handle.
Major Steele, who found him, gently removed the empty gun from the dead captain’s hand. He looked with memory misted eyes at the face of the fighting parson. The bared lips, the swollen, slitted eyes.
“Handle him gently, men,” he told the stretcher bearers. “Gently, as we handled his father twenty years ago. May the son of Sam Graybull find fat meat in the Shadow Hills!”
And they were too busy, those stretcher bearers, to wonder at the queer words of the white haired surgeon.
Transcriber’s Note: This story appeared in the November 15, 1928 issue of Adventure magazine.
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