Contracts
Mid-term examination
December, 1995

    You sit on the Supreme Court of Somewhere, U.S.A.  You have just reviewed a memorandum prepared by your law clerk summarizing the facts and argument in Rodriguez v. Burns, now pending before your court.  The memorandum reads as follows:

    "In this case, the defendant, Mr. Burns, engaged the plaintiff, Ms. Rodriguez, to tutor Burns in preparation for the Somewhere State Bar Examination.   The agreed compensation was $1,500.00, payable on completion of the tutoring, plus a $1,000.00 bonus payable in the event Burns passed the examination on his first attempt.   Rodriguez agreed to provide twenty-five hours of tutoring during the three week period immediately preceding the examination.

    "During the week preceding the examination, after eighteen hours of tutoring and without any notification to Burns, Rodriguez left Somewhere to take a job with a bar review organization across the country.  She therefore failed to render the final five hours of tutoring promised.  In the week remaining before the examination, Burns did not have time to seek a replacement tutor.  He passed the examination on his first attempt but has refused to pay Rodriguez any of the compensation promised despite her demand for payment of a pro rata portion of $2,500. 

    "Rodriguez initiated this action seeking compensation for her tutoring services, alleging both a cause of action for breach of contract and a common count in quantum meruit.  Burns answered and filed a cross-complaint seeking damages for breach of contract.  Thereafter, the trial court granted cross-motions for summary judgment, adjudging Burns not liable on the complaint and awarding Burns nominal damages ($5.00) on his cross-complaint.  The Court of Appeals affirmed without opinion and the matter is here on appeal.

    "In its rulings on the motions for summary judgment, the trial court denied relief on the Rodriguez contract claim upon a finding of material breach by Rodriguez, and denied relief on the Rodriguez common count relying on Ramm v. Fisher, 13 Somewhere 264 (1897).  In Ramm, the plaintiff, Mr. Ramm, had agreed with Mr. Fisher to build a tombstone for the grave of Mrs. Fisher.  The agreement called for the tombstone to be fashioned from Scottish granite, in memory of Mrs. Fisher's ancestry.   Thinking that Mr. Fisher would not be able to recognize the difference between Scottish granite and a less expensive local substitute, Ramm fashioned the tombstone from the local substitute.  Ramm miscalculated.  Fisher discovered the substitution and refused to pay Ramm, but Fisher nonetheless placed the tombstone on his wife's grave.   Ramm sought compensation for the tombstone under a common count in quantum meruit but this court denied recovery stating that 'no person should profit from his or her own wrongdoing' and also stating that 'to permit contract breakers to recover money following breach would only encourage breach of contract.'  Id. at 266.  

    "In the pending appeal, Burns urges us to apply Ramm.   Alternatively, he claims that recovery would be denied were we to apply section 357 of the Restatement of Contracts, First, which reads, in relevant part, as follows:

 

 

Where the defendant fails to perform his contract and is justified therein by the plaintiff's own breach of duty, but the plaintiff has rendered a part performance under  the contract that is a net benefit to the defendant, the plaintiff can get judgment for the amount of such benefit in excess of the harm that he has caused the defendant by his own breach, if: (a) the plaintiff's breach or non-performance is not willful and deliberate; or (b) the defendant, with knowledge that the plaintiff's breach of duty has  occurred, assents to the rendition of the part performance, or accepts the benefit of it.

 

    "Rodriguez urges us to distinguish Ramm, or to overrule it.  She also claims support both from section 357 of the Restatement of Contracts, First, and from section 374 of the Restatement of Contracts, Second.  In addition, she claims that denying her relief is inconsistent with the rule in cases like White v. Benkowski, in which a homeowner was denied punitive damages for an adjacent landowner's breach of a contract to supply water.

    "On Burns motion for damages, the court concluded that his damages were nominal."

    After reading your clerk's memorandum, how are you inclined to rule and why?