Rest sec 1 A promise for the breach of which the law gives a remedy... Was there a promise here?
Doctors statements Three or four days, not over four, then the boy can go home, and [in a few days he] can go to work with a good hand. Legal status?
Dr.s statements Clearly [these statements] would not justify a finding that the doctor contracted.... [T]he fact that these estimates were exceeded would impose no contractual liability upon the defendant.
What if? The Doctor had said I promise the boy will be in the hospital three or four days and then can go home and soon get to work?
Expressions of opinion or predictions Still true if he promised?
The question of the making of the alleged contract was properly submitted to the jury.
Language and context Rest. 2d § 2. Promise; Promisor; Promisee; Beneficiary (1) A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.
Rest. 2d § 2. Promise; Promisor; Promisee; Beneficiary (2) The person manifesting the intention is the promisor. (3) The person to whom the manifestation is addressed is the promisee.
R2 § 4. How A Promise May Be Made A promise may be stated in words either oral or written, or may be inferred wholly or partly from conduct.
Illustrations: 1. A telephones to his grocer, Send me a ten-pound bag of flour. The grocer sends it. A has thereby promised to pay the grocer's current price therefor. 2. A, on passing a market, where he has an account, sees a box of apples marked 25 cts. each. A picks up an apple, holds it up so that a clerk of the establishment sees the act. The clerk nods, and A passes on. A has promised to pay twenty-five cents for the apple.
Anglin v. Kleeman, 140 N.H. 257, 665 A.2d 747 (Sup Ct N.H.,1995) Action arising out of unsuccessful knee surgery Cites Hawkins v. McGee
665 A.2d 747, 750 In this case, the plaintiff testified he was told that the operation could give me a knee that was stronger than... before, and that following surgery if [he] was committed, [he] would be able to play ball again. The language quoted by the plaintiff does not rise to the level required by Hawkins to allow a finding of a contract or warranty to cure by a physician.
Hawkins distinguished Additionally, unlike the doctor in Hawkins, Dr. Kleeman did not solicit or request that he be allowed to perform the plaintiff's surgery. In fact, the plaintiff testified that Dr. Kleeman had informed him that he could have another surgeon perform the surgery, and the plaintiff did consult another surgeon prior to agreeing to surgery. – 665 A.2d 747, 750
Other causes of action? Anglin v. Kleeman, 140 N.H. 257, 665 A.2d 747 (Sup Ct N.H.,1995)
Other causes of action? Anglin v. Kleeman Negligence (tort) The spongy knee case
Bayliner Marine v. Crow Parties and procedural history Primary issue in the case
YEARMODELENGINE OPTIONDRIVERATIOHIGH ALTITUDE GEAR RATIOPROP SIZEPART N0.WIDE OPEN THROTTLE RPM 1989160 CB OB100 hp 2.07:113 X 195500 1989160 BR3.0L 130hp Merc1.98:113.75 X 214600 1989160 BR OB100 hp 2.07:113 X 195500 1989Laguna 17100hp Merc OB2.07:113.75 X 175500 1989Laguna 17135hp Merc OB2.00:117 Mirage5500 1989180 BR OB135 hp Merc2.00:117 Mirage SS5500
Prop matrix disclaimer This data is intended for comparative purposes only, and is available without reference to weather conditions or other variables. All testing was done at or near sea level, with full fuel and water tanks, and approx. 600 lbs. passenger gear and weight. – p. 4
Bayliner brochure The 3486 delivers the kind of performance you need to get to the prime offshore fishing grounds.
There is at least one merchant This is a transaction involving goods -- UCC § 2-104(1), 2-105(2)
UCC § 2-313 Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
UCC § 2-313 Express warranties by the seller are created as follows: (b) Any description of the goods which is made a part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
Prior case law Daughtrey v. Ashe Diamond appraisal case –Holding?