Supreme Court of Arkansas,
261 Ark. 568, 550 S.W. 429 (1977)
Justice George Rose Smith delivered opinion
Facts:
- Plains. Morrow and Goslee collected coins and stored substantial part of them at Morrow's house
- Morrow built special cabinets to house coins and had locks in place to thwart burglary attempts
- 1969 insurance rates start to climb, plains. begin to look for large safety deposit boxes, none are available in Hot Springs
- Morrow discusses problem w/ employees of bank on numerous occasions
- Summer 1971, bank moves to new bldg which will have boxes, which plains. reserve
- Bank employee promises to contact Morrow when boxes are available
- Sept. 4, house is burglarized
- Through a loan application, bank had knowledge coins were worth at least $12,000
- Morrow learns boxes were available Aug. 30, plains. immediately move rest of coins to bank boxes
- Nearly 3 yrs later, plains. bring suit against bank to recover losses
- arguing clause on ticket requires Shutes to bring suit in FL court
Holding: No. Bank's bare promise to notify the plains. did not amount to a tacit agreement that the bank would be liable in the event the promised notice was not given.
Reasoning:
- Mere notice is not sufficient to impose on the party who breaks a contract damages arising by special circumstances
- Where damages are so large as to be out of proportion to the consideration agreed to be paid for services rendered, it raises doubts as to whether or not the party would have assented to such liability had it been called to his/her attention at the making of the contract, unless the consideration to be paid to show liability was assumed (is it worth it to accept liability for $32,000 when you are only getting $75?)
- tacit agreement rule
- Plains. argue could be a tort - Prosser points out that a breach of contract is not treated as a tort for failure to act (nonfeasance) but rather when there is an affirmatively wrongful act (misfeasance)
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