Read the scenario and contract for Assignment 2 closely and…
Read the scenario and contract...
Read the scenario and contract for Assignment 2 closely and then pretend you are the lawyer for Mrs. Smith who wishes to sue MSL Inc.
As preparation for the formal opinion letter she requested you will write a legal memo to your file analyzing and explaining her legal position. In that memo:
· identify three relevant legal issues that affect Mrs. Smith (hint: there are more than three in the scenario so you should have no problem)
· identify the relevant facts from the scenario for each issue
summarize the law we have learned that applies to each issue given   ;
On the 3rd of this month you got a call from Mrs. Smith who owns an acreage west of Edmonton. As a surprise for her husband’s 55th birthday she was looking for someone to transform a portion of their acreage into an exact replica of the 18th hole of the legendary St Andrew’s Royal and Ancient Golf Course in Scotland. Unfortunately, things went horribly wrong, she wants to sue MSL Inc. and she wants your opinion on her legal position.
Mrs. Smith says that in late July she saw an ad for MSL Inc. in the local newspaper, called them and invited a representative to visit the acreage. On August 1st of 2008 Robert Putter, of MSL Inc, appeared and Mrs. Smith took him for a walk around the property to indicate precisely where the replica hole was to be built.
In particular Mrs. Smith showed Robert a row of trees that provided shade and privacy to the house and swimming pool and told him that while they would form part of the boundary of the project, they were not to be touched under any circumstances.
She also asked Robert if the company had any experience with golf courses, meaning the construction of them. Robert assured her they did however she says she has since discovered that the company only had done routine grounds maintenance for golf courses
In any event, Mrs. Smith told Robert that she only likes to hire Grant MacEwan students for such work because her own children all graduated from GMC and she has a fond spot in her heart for the institution. She asked Robert if the company was affiliated with the college and if all the employees who will be working on her job would be GMC students. Robert assured her it was and they would. .
Finally she told Robert that she was organizing a huge, surprise birthday party for her husband at 6 pm on 31st August 2008. She said it was imperative the project be completed and ready for use by then. She asked Robert if he could guarantee that and he said there would be no problem.
She then asked Robert for a price. He offered to do the complete job for $150,000 plus GST. Mrs. Smith said she was surprised by this—she thought the price was low—so she immediately accepted. Robert asked her for a deposit of 50% by certified cheque payable to MSL Inc., Mrs. Smith provided that and he said he would be back in a few days with a written contract for her signature.
On August 3rd Robert appeared with a completed, standard form contract he had downloaded from a web site called “Contracts R Us.” (See the accompanying document on this WEBCT site.) Without reading it, Mrs. Smith signed her name and said how happy she was to be doing business with such a fine young person from such a fine school. Robert thanked her and signed it for the corporation. Then Mrs. Smith told Robert she had to leave town the next day to visit her sick mother in Ontario and she would not be back until August 27th , just in time to get ready for the party.
Robert and his crew arrived at Mrs. Smith’s bright and early on August 4th. As advised, neither she nor her husband was there. Unfortunately, the three GMC students who had been working for Robert had quit August 3rd because they got better paying jobs elsewhere. The only replacements available were two 50 year old labourers Robert found through the local day labour employment office. They were not, nor had they ever been, GMC students.
Robert tried hard to remember the exact location for the 18th hole as pointed out by Mrs. Smith as he staked out the boundaries of the project. He took great care to run a line right up against the trunks of the line of trees that were not to be touched, and he instructed his crew to remove only existing trees and shrubs from inside the marked area. They got busy with chain saws and a Bobcat and Robert left to order the necessary soil, bricks, trees, shrubs and sod, and to tend to other business at MSL Inc’s office.
On August 10th Robert visited the site again and noticed that the crew had removed the line of trees, but that proved to be the least of his worries because the weather forecast called for several weeks of solid rain and completion on time was going to be tight.
Sure enough, that afternoon the clouds rolled in and the rain began. It rained every day until August 25th. On August 26th when Robert’s crew returned to the acreage they got stuck in the thick, gooey mud but they persevered and by the evening of August 27th the project was ready for the sod, which is scheduled to arrive at 8 am the next morning. Mrs. Smith returned late on August 27th eagerly awaiting the arrival of the catering company and their big tent the following morning.
However as day broke August 28th, Mrs. Smith was not amused at what she saw. She watched in horror as Robert’s crew tried to roll out the sod and sunk up to their knees in gumbo. Further, when the caterers tried to set up the tent the poles sunk into the mud and almost disappeared.
At precisely 12 noon on August 28th Mrs. Smith had had enough. She ordered Robert and crew off the site with an ominous, “My party is ruined! You’ll be hearing from my lawyer!”
Your search at corporate registry shows that “McEwen Student Landscaping Inc. was officially incorporated under the Alberta Business Corporations Act on September 1, 2007 and that Robert Putter of Edmonton is the sole shareholder and director.
Made this 3rd Day of August 2008
McEwen Student Landscaping Inc.
hereinafter referred to as “MSL Inc.”
hereinafter referred to as “the Customer”
In consideration of the sum stated below and the promises contained herein,
the parties hereto agree as follows:
1. MSL Inc agrees to
construct an exact replica of the first hole of St Andrew’s Golf Course, Scotland on the lands of the Customer by noon, xxxx 30th, 200x
The Customer agrees to
Pay MSL Inc. the sum of $150,000 plus GST on completion of the project.
MSL warrants that all materials used in the project will be free from defects and the finished project will be functional for a period of two years from completion/installation provided the finished project was used as intended when this contract was signed. Any repairs or replacements required after that time will be at the Customer’s expense.
Plants, Trees and Shrubs
Notwithstanding paragraph 3 above, MSL Inc will replace free of charge any Plants, Trees and Shrubs that die within one year of completion as long as they were cared for by the Customer as instructed by MSL Inc., however MSL inc. bears no responsibility for damage caused by animals, insects, rodents, machinery of the Customer or its agents, or due to natural disasters over which MSL Inc has no control. Neither does MSL inc. bear any liability for damage done to any of the Customer’s existing plants, trees or shrubs or any other property owned by the Customer caused by MSL Inc, its employees or agents.
5. Lawns and Sod
MSL Inc. will install all lawns and sod to industry standards and it is the sole responsibility of the Customer to maintain, fertilize and water the lawns after completion of the project. Therefore, notwithstanding anything else in this contract, MSL Inc has no liability for those lawns after completion of the project.
It is MSL Inc.’s responsibility to obtain all necessary building permits for the project.
Because there may be delays due to circumstances beyond MSL Inc.’s control the completion date stated in paragraph 1 of this contract is an estimate only and the Customer will have no rights against MSL Inc. if the project is not completed on that date due to weather, or shortages of labour and materials.
This contract may be terminated on ten days notice to either party by mailing written notice of termination to MSL Inc. to the registered office given in its incorporating documents or to the Customer at his or her residence.
The Customer agrees to give MSL Inc. a deposit of 50% of the contract amount by certified cheque immediately on signing this contract and that deposit is agreed to be liquidated damages and is not refundable for any reason.
This contract is governed by the laws of Alberta.
at Edmonton Alberta on the date shown above by:
MSL Inc. per Robert Putter
The Customer Mrs. Smith