The farming land, basically, did not have much value. So $300 was the largest possible diminution in value, and the contract wasn't intended to decrease the value of the land, so the court rules that damages should be limited to that.
Possible values of owning the land:
Why are the ycalled "the sooners?" First we had to steal the land from the native Americans. So then there was a land race to stake out unallocated land. Then if you farmed it long enough, you owned it. But who said you had to wait for the starting gun? Some people got started early: they got there sooner.
Anyway, there's a little bit of dissonance here: we're considering the price of farmland that cannot be farmed. What expert do we rely on to determine this value? Probably some kind of land expert. Oh, it's Garland's expert.
The Peevyhouse lawyer, who is paid on a contingency fee basis, doesn't want to introduce a dissenting expert, because he doesn't want to use diminution of value as a basis for damages. <-- UH-OH! Conflict of interests?
Have we protected the expectation interest of the parties here? We've reduced the contract to the strictest possible economic interpretation. As though we told Shirley Maclaine that she had to act, regardless of the nature of the role.
So first, they didn't find coal, plus it was raining, and the stream-diversion effort collapsed on them, so Garland wanted to get out. Easy repair of the land sort of depended on the job going to completion.
Why didn't the Peevyhouses ask for specific performance? Why wouldn't they be allowed to get them? Because it's hard to make sure Garland would do a good job on the repairs. Still, why didn't the Peevyhouses want specific performance? Willy did think he could do it himself, if Garland had just ponied up $500 to rent a bulldozer. If there were specific performance, the lawyer would not have gotten any contingency fee. <-- UH-OH! Don't tell me this sort of thing influences the outcome of a case?!?
If we're going to finance a lawsuit, we often need a contingency fee. Two good plans: try your own case, and do your own brain surgery.
Plus, if it really takes $29K to fill in the holes, there's no way the Peevyhouses are going to be able to fill in the holes, especially after the lawyer has taken 30-50%. Plus, a lot of times, people take the monetary award, and don't do the work.
So the court is concerned with waste. An awesome committee of Oklahoma lawyers petitions in support of a re-hearing. No self-interest there.
So is the court really saying that the two parties actually shared the risk that this contract was a bad idea? Did any think about what would happen if there isn't enough coal to make this work? Do you ever get out of a contract because it turns out not to be what you thought it would be? The doctrine here (see Contracts II) arises from a case related to the ascention to the throne after the death of Queen Victoria. They brought troops from all the colonies and had a major parade. They called back the navy from all areas to run it through the English Channel (and menace the French). So people rented space in their apartments with a view of the parade. Others rented out their little boats to watch the fleet in the channel. Then the prince suddenly got sick and the coronation gets called off. What happens to all those contracts made in expectation of a show? Most sellers had taken the money in advance, and would be willing to perform the contract. British courts came up with the doctrine that the purpose of the contracts "had been frustrated." This is why you get your money back on a concert ticket when the performer misses his/her plane.
Anyway, the whole idea of filling in the hole was based on the plan of getting enough coal to make it worthwhile, and of the road being nearby as a result of the strip making it over near the next road. Who took these risks? Of course, nobody provided for this in the contract because they were all certain it would happen. One side certainly had more expertise in the area. The jury's original award ($5K) is probably based just on the notion that they felt the Peevyhouses shouldn't get shafted. Perhaps they are trying to preserve the "value to the Peevyhouses." $5K just sounds sort of nice and round, and typically juries like things divisible by 5. It's sort of rationally irrational: it is trying to compensate for something that we can't value by some formula. This is sort of like how pain and suffering are compensated in torts: we award damages all the time. Just like this.
So are we saying here that we don't trust the jury with questions like this?
It is asserted that Willy Peevyhouse was a strong lover of the land. There was even, "you picked a fine time to strip mine, Lucille," in a bona fide law review article on the subject.
Filling in the pits, in particular, would likely have been a scary issue, because of liability to neighbors. It appears that the defendants wanted to duck out of that area.
On reliance, Hadley is an issue, although the fence construction issue is a possible vector, because it was foreseeable.
Much of contract law centers around choice. Are we asking if the doctor made a choice to assume this risk? Doctors don't generally intend to guarantee outcomes. Can you be bound by a promise that you didn't intend to make? Well, in cases when the promise was intentionally deceptive, you can be bound. You could also get mixed up and accidentally sign a contract; that would count, too.
The "what's in it for him" test reveals the difference between an opinion and a promise: selling a service. Seller's talk (i.e., "this is the finest car ever") is somewhat of an exception... we will come to this in warranty talk. Same with offers made under extreme emotional conditions (i.e., sell all my golf clubs for $50 after a truly horrible round). Selfishness is a tip-off, though.
Note that elective plastic surgery is hustled like a product. So the question is basically, "was the father reasonably relying on the doctor's statement?" Yes, says the court.
You can commit a contract just like you can commit a tort: accidentally, without meaning it, even if what I am promising is impossible (e.g., some government contracts), etc. The other party can let you off the hook, but that's not the same as no contract. There's no showing here that the father or the son had any reason to doubt the doctor.
What is the difference between a 100% perfect hand and 3-4 days in the hospital? The court says that the former is a promise, and the latter is an opinion. Why? Maybe damages: trying to avoid expenses associated with the hospital stay. Or, again, maybe it's just the court trying to do what's right. Maybe it's because just "everybody knows" that you can't predict recovery times precisely, especially before there were antibiotics, etc.
Doctors in those days were held in pretty high esteem, so maybe assuming that the doctor is making a commitment was more reasonable then than we think it is now.
Pepsi points: fighter jet promise. Kimba Wood (SP?) (would have been Clinton's A.G., except for failure to pay nanny tax... so we picked Janet Reno, a woman who had no kids). Carlisle v. Carbolic Smoke Ball: if a person makes extravagant promises, it's probably because it pays to make them. And if that's the case, it makes sense to expect him to honor them. So was it unreasonable to expect the delivery of a Harrier jet? The court rejects the plaintiff's suit based on the obvious absurdity of the commercial.
Posner on the "meeting of the minds" test: good quote.
Note that the degree of damages is really the area of tough consideration here. Most cases like this get handled in torts, based on the theory that the doctor did something wrong in the surgery. But then you'd have to prove that there was malpractice (in the Olden Dayes, doctors generally did not testify against doctors). In a negligence case, you'd talk about lost income, lost opportunity, and pain/suffering. But this isn't a tort case, so we need to find an expectation remedy for the boy.
This would be easier if he were a concert pianist who has having to bow out of contracts for recording and appearances. There'd be a track record, there'd be evidence. But here, he just "had promise," but not of any specific economic sort. We don't know where he would have been had the contract been performed. Potential doesn't come with reasonable certainty: there are a lot of people with potential, but only some wind up doing anything.
There's no "fixing operation" he can have to make it better. Even if there were, though, would he want to? Should we treat him as though he were compelled to? There's no showing that the hand doesn't work: what does this keep him out of? Hand modeling? How do we know he'd have been a hand model if the operation had been a success?
Remember: the expectation interest deals with a hypothetical state.
On the other hand, here it seems like Hawkins is pretty much the determiner of his own degree of sorrow, and it's hard to claim that McGee should be responsible for the extent to which patients let things get them down.
So the judge instructs the jury about damages:
What's all this "excepting?" It's pointing out an issue you might want to use on appeal, and hoping the judge will take note. Lack of objection generally means no chance to appeal (not always, but usually).
Plaintiff waives the assessment in difference in value-- too speculative. Or maybe the change in shape of her nose would change her voice. Defendant contends that the trial court errs in allowing the jury to take into account anything other than the out-of-pocket expenses.
So by skipping this value-of-the-nose-as-it-should-have-been, we avoid Hawkins v McGee issues. By only doing foreseeable damages, we avoid Hadley v. Baxendale
Opinion: exceptions are overruled, judgment and damages are OK. Both reliance and restitution theories can be valid.
Restitution, remember, is a special kind of reliance. Note that in real life torts and contracts are not as discretely divided. In real life, also, figuring out the facts is often way harder than figuring out the law. Most clients aren't professional witnesses, and it's easy to make mincemeat of their testimony. There is often a difference between what happened and what is proved.
Expectation remedies may be thought harsh (says the judge), because the patient's fee was proportionately small.
So, where would she have been, if she had gotten the nose? She'd maybe look better, she'd probably be happier. We can't tell whether she'd make any more money as a singer. How do we value her happiness? This is the problem with many expectation interests: there's no market for these intangible things.
If I buy tickets to Yo-Yo Ma, isn't that a net economic loss to me? How do I know if I'm enriched by the experience? I haven't gained anything I can sell. If it's something salable, that's one thing, but when it isn't, it's hard to assess value.
So there was an investment she had to make: the fees she paid (that would be plain restitution: the money that went into the Dr.'s pocket), plus medicines and hospital fees (maybe unlocking expenses, or essential expenses). But then we get this business about pain and suffering-- that's a kind of essential reliance, in a sense: it's guaranteed that it will hurt.
So there's a dollar amount to represent her happiness, and from that we need to deduct her pain and suffering (essential costs). We're drawing an analogy here, as in Hawkins v. McGee: it's like repairing or producing a machine. So do the differences count more than similarities?
So the jury has to make a choice without any reference to tangible quantities. It's not as though we're restoring a career, etc.
So does Fuller & Perdue help here? Why can't she recover pain and suffering from the first two surgeries? These were expectable. In the analogy game, isn't this investment like constructing a foundation for operating the machine (Albert v. Armstrong)? There, if the contract had been performed, the investment to build the foundation would have been a deduction from the total profit of the contract, so when there's breach, you can recover this reliance damage because it was an (essential) unlocking cost for running the machine. Why is this different from what Learned Hand said?
The pain and suffering is an unlocking expense to get the benefit of the plastic surgery: you can't have the benefit without it. It's foreseeable (just like the construction of the foundation). On this line of reasoning, maybe you shouldn't be able to recover for the third, now that we think of it. But maybe that was an incidental damage resulting from the breach: we shouldn't have had to go through that pain, if there were no breach. So maybe paying for that is part of the duty to mitigate.
Actually, the Kaplan opinion is fairly unclear. It's hard to say why it was decided as it was, or even what the decision was, from a legal perspective.
Tort Theory: Putting the victim back in the position where (s)he was before meeting up with the bad guy. As opposed to contracts, where we try to put you where you would have been in there were performance.
So, looking at the handout, there's little unifying material there between recovery interests. And those mostly can't be quantified.
Remember what characterizes essential reliance: it's the investment you'd have to make in order not to be in breach.
Anyway, this is where there's trouble in contract law: having to deal with things that can't really be quantified. There are lots of things we want to buy that don't produce tangible dollar returns (did tickets to Sonny Rollins make Macaulay happy enough that he didn't have to buy anti-depressants?).
When you are a lawyer, who are the people who come to your office, what do they want, and what can you do for them?
On the one hand, juries are a brake on prosecution that violates our norms. On the other hand, they are sometimes legitimized lynch mobs. Often they are given an impossible task, and they tend to do OK with it. The oldest solution to common-law problems: give it to the jury to decide.
So do you have to have a positive "intent to make a contract" in order to sue?
The doctrine of no-intent-to-sue can even be put into a contract (although usually arbitration is specified). Sanctions of long- term-continuing-relationships: if you cross me, I end the relationship.
But is that correct, given that the costs of litigation would stop lots of people from suing?
This is not conducive to a productive relationship. If there's any value in the relationship, it's best to keep it alive. ("Each house is a domain into which the King's writ does not seek to run")
Wouldn't the courts have to investigate whether she's performing as a proper wife? Do we really even want to open up the door to having to find out what a "proper wife" is?