It is Thanksgiving Day. The aroma of turkey; of dressing; candied sweet potatoes; green bean casserole; cranberry sauce; freshly baked yeast rolls; giblet gravy, and of pies emanating from the kitchen fills our nostrils. Home is the place to be today. But have you ever given thought to the law of the gobbler? This Day in History is dressed in the law of Thanksgiving, and of the succulent and not so succulent interactions of men charged with delivering that 25-pound gobbler that graces many a table.
Gobblers and the Law of Damages
It was November 5, 1917. On that day Tozai Company entered into a contract with Jacobson-Reimers Company of San Francisco reading: “We agree to sell to Jacobson-Reimers Company, of S.F., at twenty-seven and half cents per pound for choice dressed turkeys f.o.b. station numbering from two hundred head up to twelve hundred between now and Thanksgiving. Hens to weigh seven pounds and over gobblers twelve pounds and over per piece.”1
When the parties negotiated the contract for dressed gobblers and hens, the United States was at war. You remember . . . it was the “Great War,” “The War to End all Wars,” also known as World War I. After the parties had executed the turkey contract, prices jumped to 42 cents per pound per bird.2 To make matters worse, Jacobson-Reimers had ordered the negotiated limit –1,200 turkeys.3
Thanksgiving 1917 came and went, absent the 1,200 gobblers which Tozai Company had promised to deliver to Jacobson-Reimers. In its action against Tozai, Jacobson-Reimers alleged that it had been damaged in the sum of $1,653.4 Tozai did not deny in its answer that it had breached the terms of the contract. Its defense was that Jacobson-Reimers refused to accept birds pursuant to a new offer made by Tozai.5
In carving up the defendant’s case, the trial judge weighed both the facts and the birds in question. Yes! The judge weighed the amount of the birds under the contract. Under the terms of the contract Tozai was to ship to Jacobson-Reimers “not less than 600 choice dressed hen turkeys weighing not less than 7 pounds apiece and 600 choice dressed gobblers weighing not less than 10 pounds apiece, in all weighing 11,400 pounds at least, at the price of 27 ½ cents per pound . . .”6
At the time of contracting for the sale and purchase of 11,400 pounds of turkeys, the parties agreed in writing that should a breach of contract occur, damages were to be calculated at 5.4 cents in excess of the agreed upon price of 27 ½ cents at which the defendants were to have delivered the Thanksgiving birds to plaintiff.7 In a bench-tried case, the trial judge divided the birds into their specific classes, gobblers to oneside of the Thanksgiving platter; hens resting on the opposite side. The trial court then found for plaintiffs and assessed damages at $615.60.8
On appeal to the California Court of Appeals, Tozai argued that there was as question “as to the sufficiency of the evidence to support the finding that plaintiff made demand for the delivery of the turkeys, and while the evidence is not very clear on that point, the answer failed to deny demand as alleged in the complaint.”9 In a turkey shoot, the Court of Appeals affirmed the trial court, holding: “If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation.”10 Here the parties entered into a contract that did not vest in Tozai the right of selection. Adopting the reasoning of the trial court, the Court of Appeals wrote:
In this case, there being no pretention that
performance was even as much attempted,
it seems fit that under well−recognized principles
of equity the defendant should not be permitted
to limit his liability to the minimum delivery required
by the agreement. To do so would allow the most
flagrant abuse of such an agreement.11
At a time in American and Missouri history in which birds were sold live, Tozai had its neck-wrung.
Gobblers and the law of damages are not confined to the Pacific coast. Litigation surrounding the juicy birds can be found in the Atlantic Reporter (Second Series). In fact, contracts for Thanksgiving Day gobblers have been litigated under the Statute of Frauds. We stuff here, one such gobbler case.
A Taste of MYLEGS
Turkeys in general are juicy, especially the legs! In the law of contracts there are six promises which must be reduced to writing, and law professors, law students, and bench and bar are quite found of the mnemonic MYLEGS. These six contracts must be in writing: 1) contracts for marriage; 2) contracts which take a year or more to perform; 3) contracts for the sale and purchase of land (real estate contracts); 4) appointment of an executor (now called a personal representative); 5) contracts for the sale of goods costing $500 or more; and, 6) suretyship agreements.12 But what of 24,000 gobblers costing $48,916.01? This was the issue presented to the Supreme Court of Delaware in H & H Poultry Co., Inc. v. Whaley.13
George Whaley was a poultry farmer in Sussex County, Delaware for some thirty-five years. For more than a period of twenty years he had entered into oral contracts for the sale of his chickens and later turkeys, with the exception of one year in which his bank required a written contract.14 Prior to the lawsuit, Whaley for a period of six-years had entered into seasonal oral agreements with H & H Poultry agreeing to sell them “approximately twelve thousand toms, weighing twenty-two to twenty-five pounds, and twelve thousand hens, weighing between sixteen and seventeen pounds, ready for processing by H & H for the annual Thanksgiving market.”15 Every year Whaley “would pay for the poults, feed and labor, and would provide the necessary housing and equipment. In return, H & H would compensate Whaley on a per pound basis on the date of picking-up, at a price to be determined by the day to day variable market value of the turkey growing in the Shenandoah Valley area of Virginia and North Carolina.”16
In springtime during the early 1970s (the facts do set forth a precise date), Whaley placed his annual phone call to H & H “to determine how many turkeys were wanted, and, without more details, he would then buy the poults and raise them as in years past.”17 This year was different. There was a new controlling shareholder, a Mr. Gouge, who informed Whaley that “no chicks were available.” 18 With this remark, Whaley further engaged the new controlling shareholder to ascertain his intent. At trial Whaley testified to the conversation:
Any further conversations?
Yes. I said, “By the way, I have had a lot of inquiries from
other turkey processors wanting me to put turkeys with them and
you folks haven’t changed your mind about the dressing turkeys
this fall; have you?” And he said, “I don’t know. Let me talk with
Howard.”
Who did you understand him to mean when he said, “Howard”?
Howard Pepper.
What happened?
Well, he left the phone for four or five minutes and came back and
said, “Yes you can put in twenty-four thousand for us.”
Was there any conversation after that?
None.19
Relying on the phone conversation that spring day, Whaley grew 24,000 dressed turkeys for H & H Poultry. In early November Whaley called Gouge “to remind him that it was time for someone at H & H to weigh a cross section of the turkeys to see what size they were.”20 At trial Whaley testified that Mr. Gouge seemed surprised and “denied responsibility, and that his neighbor, Horace Pepper, had alerted him to that probability at a Halloween party.”21
H & H did not purchase the 24,000 dressed turkeys. On November 19th, “Whaley negotiated a contract of sale with David Polin of Diamond State Poultry . . . for approximately eleven thousand toms and eleven thousand hens based upon the New York Urner Barry Market (fifty four cents per pound dressed weight) less eleven cents per pound for processing, also less the weight of those turkeys condemned as unmarketable.”22 Thanksgiving Day was, to say the least, not as sumptuous as in previous years.
Whaley brought suit in the Superior Court of Sussex County alleging breach of contract by H & H Poultry. In a bench-tried case the trial judge found for Whaley and awarded him $48,916.01 in compensatory damages.23 But what of the Statute of Frauds that requires contracts for the sale of goods in excess of $500.00 to be in writing? The trial court overruled and denied H & H Poultry’s Statute of Frauds affirmative defense on the grounds of “untimeliness.”24 In denying H & H Poultry’s motion to amend its answer to include the affirmative defense of the Statute of Frauds, the trial court observed that three years had lapsed between the filing of the lawsuit by Whaley and when H & H filed its motion to amend. Due to the flagrant violation of the rules of pleading and practice, the trial soundly did not reach the merits of the case. The trial court then reiterated that it was denying H & H Poultry’s motion as being “untimely.”25
Being roasted to a golden brown was not enough for H & H Poultry; and so, after three years of litigation, they took an appeal to a highest poultry tribunal in the state, the Supreme Court of Delaware.
H & H Poultry had all the fixin’s of a contracts law exam. Material breach of contract; detrimental reliance; damages and mitigation of damages. Throw into the giblet gravy the law of evidence, of admission of hearsay; a pinch of pleading and practice; and oh yes . . . a taste of equity jurisprudence.26 This is the platter of turkey law and a boat of gravy that the justices of the Supreme Court of Delaware digested in September 1979.
Affirming the trial court’s decision, the state Supreme Court plucked the pinfeathers of appellants argument, rendering a clean bird. First: the Court rejected the Statute of Frauds claim, holding: “In addition to the inexcusable neglect, we must consider the possible prejudice to Whaley arising from the impossibility of taking the deposition of Gouge, Chairman of the Board of H & H, whose testimony might have proved favorable to Whaley for one reason or another27
Second: In rejecting appellant’s argument that Whaley did not mitigate his damages, the Court observed that, “Whaley called all companies whose names were furnished him by H & H as possible outlets, as well as processors he knew in the Shenandoah Valley and elsewhere. Time was of the essence because if Whaley was unable to move the turkeys for the Thanksgiving market his next high market would be Christmas. By that time the turkeys would weigh more and be worth less per pound.”28 Here we see the state Supreme Court taking the time and pain in ascertaining whether there existed any underlying pinfeathers or two hiding beneath the skin. The Court concluded that Whaley had, indeed, mitigated his damages. Suffice to say, the Court rid themselves of these pesky little things by tossing the gobbler into a pot of boiling water.29
Last but not least, H & H Poultry objected to Whaley’s testimony as to the market price of the gobblers “as a price given on an arbitrary date, [.];”30 and for the further reason, that Whaley’s testimony was hearsay.31 The Supreme Court of Delaware combined the two sides holding: “We cannot accept either objection since H & H admits to using the Valley price throughout the years, and the date of the price obtained is the day after Whaley was informed by Mr. Gouge that H & H would not process his turkeys. H & H cannot rely upon Valley price on the one hand and deny it on the other.”32
By the time the state Supreme Court laid down their carving instruments, all that remained of H & H Poultry’s arguments were bare bones, some skin for taste, and a carcass suitable for the stockpot.
SCOTUS and Turkeys
A.L.A Schechter Poultry
In an age not too long ago, some of us studied in constitutional law the famous case of A.L. A Schechter Poultry Corporation v. United States.33 It was the Great Depression. During his first 100 days in office FDR pushed through Congress the National Industrial Recovery Act (NRA) and other tasty or not so tasty pieces of legislation, depending upon ones digestive tract.34 In A.L.A. Schechter Poultry, the Court held unconstitutional the poultry regulations (as applied to chickens –their cousin, the turkey was not covered under the regulations), as violating the nondelegation doctrine –simply stated, there are some things Congress cannot delegate to the Executive Department, such as, primary legislation as compared to “gap fillers.” But what of wartime regulations regarding the price of turkeys? Are such regulations exempt from the butcher’s block?
Kraus & Brothers
Eight years after A.L.A. Schechter Poultry was decided, the United States was in the throes of World War II. In 1942, a wartime Congress enacted the Emergency Price Control Act. Everything was rationed. Prices were fixed by the government; including the price of turkeys. In M. Kraus & Brothers, Inc. v. United States,35 petitioner was convicted by a jury sitting in the United States District Court for the Southern District of New York for violating Emergency Regulation 269 which made it a criminal offense to sell certain things, including turkeys, above a price established by the Office of Price Administration (OPA). In 1943, the government’s price for turkeys was low, and demand for the gobblers far exceeded supply. A classic economic situation, except that the United States was at war. The Second Circuit affirmed petitioner’s conviction;36 and the Supreme Court granted cert.37
Prior to World War II and the emergency war regulations, M. Kraus & Brothers received between 100 to 150 cars of turkeys for Thanksgiving Day sales. But this was wartime, and under the regulations enforce, the company received one carload.38 To supplement what would have been their sales from the gobblers, the company tied the chicken legs and skin to the birds. M. Kraus & Brothers then sold the bird to their respective retailer butchers, but the chicken legs and skin were “tied-in” to the purchase of the bird.
Seven retailer butchers testified that the poultry parts purchased from M. Kraus & Brothers was a combination sale, a ‘tying agreement,” in order to receive the turkeys for Thanksgiving. One butcher who regularly did business with M. Kraus & Brothers testified at trial that he did not want to purchase the legs and skin, but had been told that the sale of their turkeys was “conditioned upon the sale of poultry parts which he did not want and for which there was no consumer demand.”39 Based on these facts the Government charged M. Kraus & Brothers with evasion of the OPA regulation. Petitioner, M. Kraus & Brothers was convicted by a jury sitting in the United States District for the Southern District of New York of violating the OPA regulations. On appeal, the Second Circuit affirmed.
Reversing petitioner’s conviction and remanding the case to the district court for a new trial, Mr. Justice Murphy held that the regulation in question was ambiguous. “The dividing line between unlawful evasion and lawful action,” wrote Mr. Justice Murphy, “cannot be left to conjecture. The elements of evasive conduct should be so clearly expressed by the Administrator that the ordinary person can know in advance how to avoid an unlawful course of action.” 40
Dissenting, Mr. Justice Black with whom Mr. Justice Reed and Mr. Justice Burton, joined, declared: “We were at war in 1943. Scarcity of food had become an acute problem throughout the nation. To keep the public from being gouged the government had set ceiling prices on food items. Congress made it a crime to sell above the ceiling prices.”41 Mr. Justice Black was of the opinion that “petitioner’s practice in forcing the butchers to buy unwanted chicken feet on order to get wanted turkeys amounted to a direct violation of the Price Control Act.”42 Nor did the dissent concur that the regulation had to specify every hypothetical evasion under the Price Control Act.43
The Court’s plurality opinion in M. Kraus & Brothers, Inc., speaks to the times: of the waning years of price controls, of a nation tired at being at war, and of a need to return to normalcy. But what was “normalcy post-1945?44
Is A Turkey A Chicken?
Not full yet? Haven’t had your fill of bird? In Frigaliment Importing Co., Ltd. v. B.N.S. International Sales, Corporation,45 Circuit Judge Henry J. Friendly sitting on the District Court was called upon to decide if a turkey is a chicken. Plaintiff, Frigaliment contended that ““chicken” means a young chicken, suitable for broiling and frying.”46 The defendant, B.N.S. International argued that ““chicken” means any bird of a genus that meets contract specifications on weight and quality, including what it calls “stewing chicken” and plaintiff pejoratively terms “fowl.”47 Evidently, in 1960, dictionaries did not give a definitive meaning to chicken or turkey.48 As one dissects the wings from the legs, as the thighs fall off leaving the breast for white meat lovers, one begins to see that the term “chicken” is ambiguous. Is a chicken a chicken, or is a chicken only a young chicken?49 In this case at bar, the contract with the Swiss firm was drafted and executed in German; and there is more than one term for chicken in German.50
We need not baste the bird in all its definitions. When Judge Friendly weighed all the evidence, it was clear that the parties were contracting for the delivery of stewing chickens in the 2 ½ −3 lbs. size. Defendant’s subjective intent would not be significant if this did not coincide with the objective meaning of the term “chicken.””51 Based upon the size of the birds contracted for, the District Court held that plaintiff had “the burden of showing that “chicken” was used in the narrower rather than in the broader sense and this it has failed to do.”52 Plaintiff’s complaint was dismissed. As to the turkey issue . . . well, defendant’s expert witness who operated a chicken eviscerating plant in New Jersey served up fowl in a New York federal courthouse testifying that, “Chicken is everything except a goose, a duck, and a turkey.”53
Every Child’s Wish: The Wishbone
It’s Thanksgiving Day and you have only one turkey? More than one child graces the Thanksgiving Day table. What to do? After all, every child wants to end up with the larger side of the wishbone. Buy an artificial wishbone to go with the real one! But don’t violate the laws of intellectual property. In Lucky Break Wishbone Corp. v. Sears, Roebuck and Company,54 the purported copyright owner brought suit against an advertising agency, retailer, and other competitors alleging copyright infringement. Swallowing intellectual property on Thanksgiving Day is a sure path towards indigestion. All you need to know is that artificial wishbones do exist, and they can make every child happy and sooth the nerves of parents. And if you are thinking on improving the model, see a copyright lawyer first. By the way, there is more than one wishbone on this day – ask any football fanatic!55
Cranberries, Thanksgiving and the Law
The turkey legs fills more than half of my special Thanksgiving Day plate. But I need color and some sweet and tart to make the day. Alas, cranberries. But what of the law of Thanksgiving cranberries?56
The year was 1959. At least for some of us. In a pre-Thanksgiving Day press conference, Arthur Flemming, Secretary of Health, Education and Welfare (HEW), “stated that certain Washington−and Oregon grown cranberries were potentially hazardous because they contained pesticides shown to cause cancer in laboratory rats and that he was not going to eat them at Thanksgiving dinner.”57 At the time Secretary Flemming made his announcement that he was not going to have cranberries on his Thanksgiving Day plate, the Food and Drug Administration (FDA) charged with protecting the health of the public, was unable to determine where the particular contaminated cranberries were grown. Cranberry farmers had produced that year approximately 33,600,000 pounds of the delicious tart berries, of which only 325,800 pounds were found to be contaminated.58 “The government compensated the cranberry growers approximately 9 million dollars for the destroyed market.”59
In the world of cranberries, tart in 1959 did not win out. Growers discovered that, the government is immune to suit for issuing statements of adverse publicity. In fact, Section 375(b) of the Food, Drug & Cosmetic Act vests in the FDA express authority “to cause to be disseminated information regarding, food, drugs, devices or cosmetics in situations involving, in the opinion of the Secretary, imminent danger to health or gross deception to the consumer.”60 Because the “FDA does not have authority on its own to detain products pending investigation, the FDA has used its publicity power in conjunction with its “voluntary recalls” not only to warn the public but also as a means of ensuring compliance.”61 Though adverse publicity can destroy a market, as was the case with cranberries in 1959; the federal courts have held that the government in the exercise of its discretionary function exception under the Federal Tort Claims Act [FTCA], retains sovereign immunity from suit.62
Cranberry growers do have recourse by introduction of private bills in Congress. Such legislation has been held to constitute a waiver of sovereign immunity.63 Private bills are fine and dandy, but what of my cranberry sauce? Sorry. Health legisaltion,64 regulations and good faith statements made by the FDA and/or the Secretary of Health, Education and Welfare trump the sweet-tart combination of the Thanksgiving Day plate. In the wake of the cranberry crisis of 1959, Congress held hearing into the Secretary’s statement. Appearing before Congress, the Secretary of HEW defended the agency’s decision stating, “a responsible government . . . cannot fail to place at the top of its lists of priorities the health of all people even though by doing so it may be or appear to be acting against the economic interests of a segment of our society. . . . The innocent consumer should not be made the victim . . . in order to protect the innocent producer.”65
Overindulging??? A Thanksgiving Day Guest Contract
Do you have overindulgent guests? Does your homeowner’s policy cover the waistbands of one and all? If not, consider a release and hold harmless agreement. Below is an indemnification agreement, after all, we do believe in preventive lawyering. Right???
“Thanksgiving Guest Liability and Indemnification Agreement66
____________ [hereinafter referred to as “Guest’], has been given
permission to eat at the table of ___________________ [hereinafter referred
to as “Host’].
“Guest acknowledges and understands that no warranty, either expressed or
implied, is made by the Host as to the nutritional content of the meal. This
document is offered in order to duly warn Guest that dangerous conditions,
risks, and hazards may lurk in the turkey, stuffing, vegetables, cranberry sauce,
fixings, drinks, deserts, appetizers, and any other comestibles that may be
served.
“Guest is hereby informed that Host’s foods may contain any of the following:
calories, carbohydrates, sodium (salt), fat, saturated fat, trans fat,
polyunsaturated fat, monounsaturated fat, peanuts, sugar,, alcohol,
tryptophan, caffeine, and good cheer.
“Guest acknowledges that eating may incur risks, including but not
limited to, satiation, indigestion, heart burn, dizziness, laziness, heart
disease, holiday spirit, “food coma,” and “that bloated feeling.” Host’s
meal includes all items served, including those brought by other Guests
(“including Grandma”).
“If Guest has brought minors to Host’s Thanksgiving table, Guest assumes
the responsibility for monitoring said minors’ eating habits and guarding
against hazards at all times.
“As consideration for being allowed by Host to enjoy a Thanksgiving meal,
“Guest hereby indemnifies Host from all liability for personal injury suffered
by Guest−which may be caused, in whole or in part, by any element of Host’s
meal. Guest agrees that neither he/she, nor his/her heirs or personal
representatives, will sue Host or his/her associates for any injury that Guest
suffers, in whole or in part, from consuming food on Host’s premises. This
indemnification includes an agreement not to haul Host into court on the
basis of:
“1. Failure to provide nutritional information;
“2. Failure to warn of potential for overeating because food tastes too good and
is provided at no costs;
“3. Failure to offer “healthier alternatives,” or vegetarian “tofurkey;”
“4. Failure to provide information about other venues serving “healthier”
Thanksgiving meals;
“5. Failure to warn that dark meat contains more fat than white meat; and
“6. Failure to warn that eating may lead to obesity.
“GUEST INDEMNIFIES AND RELEASES OWNER FROM ALL LIABILITY.
“GUEST HAS READ THIS DOCUMENT AND UNDERSTANDS IT. HE/SHE
IS SIGNING IT FREELY AND VOLUNTARILY, AND PROMISES NOT TO
APPEAR AS A WITNESS IN SUPPORT OF JOHN “SUE THE BAS****S”
BANHZAF, ESQ., AT ANY TIME.
“ GUEST:______________________ DATE:___________________
“ HOST: _______________________
“WITNESS: ________________________________________
“WITNESS: ________________________________________
Football
Did you think I would be so kind as to let you off the hook without a comment on the law of Thanksgiving Day football? “Ha!”67 Seriously, we have Judge Charles Blakey Blackmar to thank for NCAA football being broadcast across the airwaves. While a partner in the Kansas City law firm Blackmar, Newkirk, Eager, Swanson, and Eager, the National Collegiate Athletic Association (N.C.A. A.) was referred to Kenneth Midgley by Professor Ralph Aigler of the [University of] Michigan Law School . . .”68 In the words of Judge Blackmar: “Midgley treated the client as a charitable agency which should be modestly charged. He was busy when the first contract was signed with ABC for the right to broadcast college football games, and asked me to handle the negotiations. The agreed price was $ 32,000, 000, which is modest by present day standards but seemed like a lot of money in 1963.”69 So if you wanted to know how college football came to invade that boob tube called a television, look no further than Charles Blakely Blackmar.
Enjoy the food, good cheer, family, friends and football this Thanksgiving Day. But don’t forget there is an excellent lawyer movie on T.V. that has turkey in it: “Miracle on 34th Street.”70
Happy Thanksgiving!
* © Copyright Joseph Fred Benson, November 16 2023. All rights reserved.
Rabbi Joseph Fred Benson, a native of University City, Missouri, received an A.B. cum laude in English Legal History; American Legal History; and Political Science, American National Politics with an emphasis in Constitutional Law 1976; A.M. in American Legal History with an emphasis in Constitutional Law 1977; J.D., 1985, Saint Louis University; Semichah/Rabbinic Ordination 2007, Saint Louis Beis Din/Rabbinical Court. He served as the first Supreme Court Archivist – Legal Historian to the Supreme Court of Missouri (2000-2015). In retirement, Rabbi Benson teaches Hebrew to adults in Jefferson City and officiates at life cycle events throughout Mid-Missouri. He is also a provocateur of articles appearing in the Missouri Lawyer’s Weekly; St. Louis Jewish Light; and, the Catholic Missourian. His first article in JURIST appeared on July 4, 2020 titled “The Real Independence Day: July 2, 1776.”
Notes
1 See Jacobson-Reimers Company v. Tozai Company et al., 42 Cal App. 178, 183 P. 466, at 466 (Cal App. 3rd Dist. 1919) (All citations are to the Pacific Reporter). In 1917, Thanksgiving Day was November 29th. Id. Not until 1941 did Congress enact legislation setting aside the fourth Thursday in November as a Day of Thanksgiving. See H. J. Res. 41, 77th Cong, 1st Sess., Pub. L. No. 77-379, 55 Stat. 862 (1941) (Act of December 26, 1941). The House version set the date of Thanksgiving for the third Thursday in November. The Senate’s amendment of December 9, 1941 to H.J. Res. 41 changed the date to the fourth Thursday of November. With this amendment, the Resolution passed both chambers.
2 183 P. at 466.
3 Id. It is settled law that a rise or collapse in the market in itself is not justification for a party being released or excused from its contractual obligations. If the rise in turkey prices were unforeseen, something that Tozai failed to plead, excuse of performance would have been a sound argument. See e.g., Uniform Commercial Code §2-615 (impossibility of performance) addressed in Gay v. Seafarer Fiberglass Yachts, Inc., 14 UCC Rptr Serv. 1335 (N.Y. Sup. Ct., Suffolk County1974). In Gay, the New York Supreme Court soundly recognized: “The mere fact that performance pursuant to the terms obviously became economically unprofitable . . . is not sufficient reason to relieve [defendant] from its contractual obligations.” Id., at 1336−37 (citation omitted). In the commercial world, Tozai could have allocated to Jacobson−Reimers the increased costs of the turkeys, as the United States had been at war with Germany since April 6, 1917. It cannot be said that the potential for increased costs in turkeys during wartime was not unforeseeable. See Transatlantic Financing Corporation v. United States, 363 F.2d 312, 319 (D.C. Cir. 1966) (Held: Increased cost alone does not constitute impracticability.)
4 See Jacobson-Reimers, supra note 1, at 466.
5 Id.
6 Id.
7 Id.
8 Id.
9 Id., at 467. Appellant, Tozai challenged the “sufficiency of the evidence,” and not the “weight of the evidence.”
10 Id. (quoting, Calif. Civ. Code, § 1448).
11 Id. [Emphasis added].
12 See Mo. Rev. Stat. chap. 432 (2000) (Statute of Frauds), see generally John D. Calamari and Joseph M. Perillo, The Law of Contracts § 19.1, 774−775, esp. 775 (3rd ed., St. Paul, Minn.: West Publishing Company 1987) (quoting Sections 4 and 17 of An Act for the Prevention of Frauds and Perjuries, 29 Car. II, c. 3, 8 Stat. at Large 405 (1677)).
13 408 A.2d 289 (Del. 1979).
14 Id., at 290.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id., at 290−91. For contract scholars, my present to you this Thanksgiving Day is the following practice exam: “Does Mr. Gouge’s statement to Whaley, “Yes, you can put in twenty-four thousand [dressed turkeys] for us [.],” constitute adequate assurance of performance as applied to merchants under the Uniform Commercial Code § 2-609 (2) (codified under Mo. Rev. Stat. § 400.2-609(2) (2000))?” As law clerk to United States District Judge Frank Gobbles of the District of Fowl, prepare an office memorandum addressing the subject−matter with a conclusion of law and recommendation as to how Judge Fowl should rule.
20 Id., at 291.
21 Id. The case came down to credibility of the witnesses. Horace Pepper’s testimony at trial was diametrically opposite that of George Whaley’s. In the words of the trial judge: “[G]entlemen, I have determined that I could not get any better a feeling for a close case, where I believe people may sincerely feel that they are telling thy story as it is, than I have now, and there is no need to deliberate on the matter. I am convinced that judgment must be and shall be entered in favor of the plaintiff in this case.” H & H Poultry, 408 A.2d at 291. Affirming the trial court on this point, the state Supreme Court held that, sufficient facts in the record supported the trial court’s judgment in favor of plaintiff, George Whaley. Id.
22 Id., at 292.
23 Id., at 290.
24 Id.
25 Id., at 291.
26 The more one adds to the saucepan, the more one conjures up the old written Missouri Bar Examination (pre-1990’s, pre-Multi State Essay Exam, was a time in which Bar Examiners drafted their own essays on Missouri law). Is the gravy too rich? Try a nice Riesling, or have an antacid. It is after all, Thanksgiving Day; time to raid the box!
27 H & H Poultry, 408 A.2d at 291. The impossibility of taking Mr. Gouge’s deposition on the merits of the litigation is a footnote reference to his death. See H & H Poultry, 408 A.2d at 291 note.
28 Id., at 292.
29 There are two preferred ways to pluck pinfeathers: 1) tossing the bird into boiling water; 2) singe the feathers off. A third and more tedious way is to soak the gobbler in hot water, and then pluck for two to three hours. This observational footnote is based upon my age, I am 68 years old, and will turn 69 years of age come mid-December. In over 50 years, I have plucked many pinfeathers. The third option is not desirable.
30 H. H. Poultry, 408 A.2d at 292.
31 Id.
32 Id. [Emphasis added].
33 295 U.S. 495 (1935) (plurality opinion).
34 For an excellent history see William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal (New York: Harper and Row 1963). Professor William E. Leuchtenburg is considered among American historians as the preeminent authority on FDR. Not only is Leuchtenburg an excellent historian known for presenting balanced works, he is also an excellent writer.
35 327 U.S. 614 (1946).
36 See United States v. M. Kraus & Brothers, Inc., 149 F. 2d 773 (2nd Cir. 1945).
37 See M. Kraus & Brother, Inc. v. United States, 326 U.S. 699 (1945) (granting certiorari to the Second Circuit).
38 See M. Kraus & Brothers, Inc. v. United States, 327 U.S. 614, 629, 630 (1946) (Opinion of Black, J., dissenting). The majority opinion does not set forth the number of carloads of turkeys which petitioner purchased prior to the War. For such details, one must read Mr. Justice Black’s dissent.
39 See M. Kraus & Brothers, supra, note 35, at 617.
40 M. Kraus & Brothers, Inc., 327 U.S. at 621−22.
41 See M. Kraus & Brothers, Inc. v. United States, 327 U.S. 614, 629, at 629 (1946) (Opinion of Black, J., dissenting).
42 Id., at 631.
43 Id.
44 See G. Edward White, Tort Law in America: An Intellectual History passim (1st ed., New York: Oxford University Press 1980). In his classic study of tort law, Professor White argues that in the days following the end of World War II, the United States sought a return to “consensus thought.” White argues that the period 1945-1970 was such a time in our history: one marked by a perception of a return to fundamental moral and ethical principles that had been discounted , abused and out-right refused to be followed during the years 1933 to 1945.
45 190 F. Supp. 116 (S.D.N.Y. 1960) (Opinion of Friendly, Cir. J.).
46 Id., at 117.
47 Id. If one needs a break from fowl puns, I suggest waltzing as a means of burning off those Thanksgiving Day calories. See Arthur Murray Dance Studios of Cleveland, Inc. v. Witter, 105 N.E.2d 685,687 (Common Pleas, Cuyahoga County, Ohio 1952) (“When defendant, Clifford Witter, a dance instructor, waltzed out of the employment of the plaintiff, the Arthur Murray Dance Studios of Cleveland, Inc., into the employment of the Fred Astaire Studios, the plaintiff waltzed Witter into court.”) And you thought law was dull and boring. Ha! For approbation of the highly used and classic term, “Ha,” see note 67, infra.
48 See Frigaliment Importing, supra note 45, at 117.
49 Id., at 119.
50 Id., at 118. In German, “huhn,” is the generic for chicken. The word “hahnchen,” refers to a fryer or a roasting chicken. The word “feig,” is an informal adjective for chicken, but normally used in the pejorative as in, “he’s chicken, “er ist ein Feigling.”” See Collins’ English-German Dictionary, on-line at, http://www.collinsdictionary.com/dictionary/english-german.chicken.
51 Id., at 121.
52 Id. Compare the outcome here to the ship “Peerless,” in Raffles v .Wichelhaus, 2 H & C 906, 159 Eng. Rep. 373 (Ex. 1864). In this classic contract case, Raffles (Plaintiff) entered into a contract with Wichelhaus (Defendant) to sell 125 bales of Surat cotton to Wichelhaus. The goods were to be shipped from Bombay, India to Liverpool, England on the ship “Peerless.” At the time of contract formation, neither party to the agreement was aware that there existed two ships named “Peerless” carrying cotton from Bombay to Liverpool; one arriving in October, and the other in December. Wichelahus thought that he was purchasing the cotton arriving on the October ship Peerless; Raffles thought that he was selling to Wichelhaus Surat cotton arriving in England on the December ship Peerless. Wichelhaus refused acceptance of the December cotton and Raffles brought suit. In dismissing plaintiff’s action and entering judgment in favor of Defendant, Wichelhaus, the Exchequer held that because there was a latent ambiguity, the parties never came to a “meeting of the minds,” or in today’s nomenclature, “mutual assent.” See Restatement (Second) Contracts § 20 (1). What differentiates Frigaliment from Raffles? Did the size of the birds contracted for in Frigaliment constitute a total integration that explained what the parties had actually contracted for? See Restatement (Second) Contracts § 20, cmt. c (1981) (contract formation and mutual assent).
53 Frigaliment, supra note 45, at 119.
54 528 F. Supp. 2d 1106 (W.D. Wash. 2007). The author readily admits, that there are some cases in which the names of the parties just lend themselves to gobbles of puns. For those who want to engage in fowl trivia this Thanksgiving, consider the case L & R Egg Company, Inc. v. Director of Revenue, 796 S.W.2d 624 (Mo. 1990) (en banc). In this chicken processing case, the sole question before the Supreme Court of Missouri was whether or not “equipment used to clean, oil, inspect, weigh, grade, pack and mark chicken eggs is “manufacturing” equipment, within the meaning of § 144.030.2 (5) RSMo 1986, so as to exempt Appellant from payment of the use tax on that equipment.” Id., at 625. (RSMo. is in the in-house citation to Mo. Rev. Stat. used by Missouri courts and the Missouri Bar). Dissenting from the proposition that the washing of eggs does not constitute “manufacturing” under the revenue statute, Judge Holstein wrote: “From time immemorial, hens have been thought of as the manufacturer—the exclusive manufacturer of eggs. But, despite the hen’s best efforts, she has been unable to manufacture eggs that are uniform in size, color, and quality. At the risk of sounding indelicate, the hen’s method of delivery does not always result in the most sanitary or aesthetically pleasing product.” L. & R. Egg Company, Inc. v. Director of Revenue, 796 S.W.2d 624, 627, at 627 (Mo. 1990) (en banc) (Opinion of Holstein, J., dissenting, with whom Rendlen, J., joins in dissent).
55 The “wishbone” formation debuted on September 21, 1968 when the Longhorns of the University of Texas coached by Darrell Royal played the University of Houston. Dubbed the “pulley bone,” by reporters, Coach Royal later referred to it as the “wishbone offense.” See n.a., Wish Bone Football, on-line at, http://www.wishbonefootball.com/history.html.
56 The law of cranberries is governed by more than 90 sections in the Code of Federal Regulations (C.F.R.). See e.g., 7 C.F.R. Pt. 929.1−929.76; 7 C.F.R. Pt. 929.101-106 (2013), just to mention some of the many sections of cranberry regulations contained in the Code of Federal Regulations. The source for today’s regulations can be found in 27 Fed. Reg. 8101 (Aug. 15, 1962) (regulation of the cranberry industry following the 1959 cranberry scare). See also, n.a., Regulating the Cranberry, RegBlog: a source of regulatory news, analysis, and opinion in affiliation with the Penn Program on Regulation, University of Pennsylvania Law School, Philadelphia, Pennsylvania (Nov. 22, 2010), on-line at, http://www.law.upenn.edu/blogs/regblog/2012/11/22-regblog-thanksgiving.html.
57 See Lisa M. Willis, No Cranberries for Thanksgiving: The Impact of FDA Adverse Publicity (Food & Drug Law Course, Harvard Law School Winter 2005), available on-line at Digital Access to Scholarship at Harvard: A Service for the Scholarly Community (Dash), http://dash.harvard.edu/handle/1/8889457; see also John F. Henahan, Whatever Happened to the Cranberry Crisis,? The Atlantic (March 1977), available on-line at, http://www.theatlantic.com/past/docs/issues/95dec/lead/hencran.htm. For lovers of cranberries and culinary historians see A Guide to the Historical Holdings in the Eisenhower Library: Cranberry Scare of 1959 (compiled by Barbara Constable, March 1994), on-line at, http://www.eisenhower.archives.gov/research/subject_guides/pdf/Cranberry_Scare_1959.pdf.
58 See Lisa M. Willis, No Cranberries for Thanksgiving: The Impact of FDA Adverse Publicity, id.
59 Id.
60 Id. (quoting 21 U.S.C. §375 (b) (1958)).
61 See Lisa M. Willis, No Cranberries for Thanksgiving: The Impact of FDA Adverse Publicity, supra note 57 and note 12 accompanying text (citing, Ernest Gellhorn, Adverse Publicity by Administrative Agencies, 86 Harv. L. Rev. 1380, at 1407−08 (1973)).
62 Id. (citing the Federal Tort Claims Act [FTCA], 28 U.S.C. § 2680(a) (2000)).
63 Id. (citing Mizokami v. United States, 188 Ct. Claims 736, 469 F.2d 1375 (1969)).
64 See e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding as constitutional compulsory smallpox vaccination. In Jacobson, Mr. Justice Harlan held: “According to settled principles the police power of the State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id., at 25 (internal citations omitted)); see also James Colgrove and Ralph Bayer, The Legacy of Jacobson v. Massachusetts, Manifold Restraints: Liberty, Public Health and the Legacy of Jacobson v. Massachusetts, 95 Am. J. Pub. Health 571 (April 2005), available on-line at, http://www.mailman.columbia.edu/sites/default/files/Manifold%20Restraints%20Colgrove%20Bayer.pdf; Wendy E. Parmet, Richard A. Goodman and Amy Farber, Individual Rights versus the Public’s Health— 100 Years after Jacobson v. Massachusetts, 352 New Eng. J. Med. 652 (Feb. 2005), also available on-line at, http://www.masslocalinstitute.org/onlinecourses/legal/NEJM%20Parmet%20-%20100%20years%20after%20Jacobsen.pdf. Jacobson is still sound law and public policy. See Note, Towards a Twenty-First Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820 (2008).
65 See Lisa M. Willis, No Cranberries for Thanksgiving: The Impact of FDA Adverse Publicity, supra note 57 (quoting Hearings before House Committee on Interstate and Foreign Commerce, 86th Cong., 2nd Sess. H.R. 7624 168-171 (1961)).
66 See Center for Consumer Freedom: Promoting Personal Responsibility and Protecting Consumer Choice (Nov. 24, 2003), on-line at, Home – Center for Consumer Freedom
67 The author gives approbation of the expression, “Ha,” to Cari Collins of the Missouri Bar, a former law clerk to Supreme Court Judge Duane Benton, now a Judge on the United States Court of Appeals for the Eighth Circuit. Ms. Collins earned a double undergraduate degree majoring in Latin and English from the University of Missouri− Columbia before entering William & Mary Law School. Who in their right mind would argue the nomenclature of the word “Ha,” with Ms. Collins who not only is versed in languages; but who is a daughter of an English teacher? Cuilibet in arte sua perito est credendum (“A person skilled in his peculiar art or profession is to be believed.”) See Co. on Litt. 125a (1628).
68 See Charles Blakey Blackmar, Doing My Best: The Memoirs of Charles Blakey Blackmar 147 (Jefferson City, Mo.: private printing 2006).
69 Id.
70 See George Seaton, Miracle on 34th Street (Los Angeles, Calif.: 20th Century Fox 1947) [Original screenplay and movie].
