Multistate Bar Exam Flashcards

While Junior is out trapping in the Alaskan forest, his neighbor Franco trespasses onto Junior’s land and cuts down 500 of Junior’s corn stalks, which Franco’s wife will use to make corn bread for the county fair. Franco takes 250 of the stalks home and leaves the remaining stalks next to Junior’s barn. Franco plans to come back later at night to pick up the rest. Junior comes home and finds the 250 stalks and is baffled. He moves them onto his flat bed trailer and places a tarp over them. When Franco returns to Junior’s property later that night, he learns that the stalks were moved from the area where he left them next to the barn. He spends a half hour looking for them and finally finds them on Junior’s trailer. He takes off the tarp and brings the stalks home. Junior reviews his video surveillance system and observes Franco cutting down the stalks and his subsequent actions. He contacts the police, who charge Franco with larceny of 500 stalks. Franco objects to the charges. Has Franco committed larceny?

Answer: Yes, He is guilty of larceny.

Franco committed larceny because he severed the corn stalks from the land, converting them into personal property. His act of taking and carrying away the stalks, even in two stages, with the intent to permanently deprive Junior of them, fulfills the elements of larceny. The fact that Junior moved the remaining stalks does not negate Franco's initial intent or subsequent taking, as the property still belonged to Junior.

Herb is selling his home in the northwest to retire in the south. He has a large house filled with antique furniture, but he cannot take it all to his smaller home in the south. The buyer of the home wants it vacant. Herb calls his nephew Joe and tells Joe that if he moves the furniture out of his home, he can have it. Joe agrees, so he rents a truck and drives 300 miles to his uncle’s home and places the furniture into the truck. Before Joe departs, Uncle Herb decides that he wants to keep the furniture. Was a valid contract formed? I. Yes. There was a bargained for exchange. II. Yes. Herb made a valid unilateral contract offer. III. No. Herb merely stated a condition for Joe to receive a gift.

Answer: I only

A valid unilateral contract was formed because Herb made an offer that could only be accepted by Joe's performance, not a promise. Joe's actions of renting a truck and driving 300 miles constitute the requested performance, which serves as consideration for the contract. This performance created a bargained-for exchange, making the contract enforceable once Joe began his performance, preventing Herb from revoking the offer.

Boris is walking on a County street. His doctor had recommended that he stay in bed. He turns ill and stumbles along the sidewalk. He comes to a sidewalk vault that is flush with the sidewalk, but not in a hazardous condition. Boris misses a step and trips over the vault. He falls to the ground and breaks his left ankle and hip. He sues the owner of the vault for negligently maintaining it. A settlement offer is made to Boris by the vault owner’s insurance company, but Boris rejects it and wants more. At trial, the vault owner’s defense is that Boris was negligent and the sole proximate cause of his injuries. The vault owner calls a man who saw the accident to the stand. The vault owner’s attorney wants to question the witness about what he observed. The attorney asks the witness to describe how Boris looked. The witness states that Boris looked old, ill and looked like he suffered from AIDS. Boris’ attorney objects. Will the Court overrule the objection and allow the witness’ answer to stand?

Answer: The court will partially overrule the objection, and only allow the testimony pertaining Boris age and that he appeared ill.

A lay witness can testify to observations that are rationally based on their perception and helpful to understanding their testimony, such as a person's age or apparent illness. However, a lay witness cannot offer an opinion that requires specialized medical knowledge, like diagnosing a specific disease such as AIDS. Therefore, the court will allow testimony about Boris looking old and ill, but not the speculative diagnosis of AIDS.

Axton and Valentino are lifelong friends. Axton has had a successful career mining gold from Tombstone, Axton’s 20 acre property, which also has a 4 bedroom home. Valentino has always struggled to make a living. Feeling bad for Valentino, Axton leaves his 20 acre property to Valentino in his will for the life of Valentino and then to Axton’s heirs. When Axton dies, his heirs seek to enjoin Valentino from using the property to mine gold so Valentino does not exploit the natural resources. Will the heirs be able to succeed under the Doctrine of Waste?

Answer: No. Valentino will be permitted to mine.

Under the Open Mines Doctrine, a life tenant is generally permitted to continue exploiting natural resources if the property was already being used for that purpose when the life estate was created. Since Axton had a successful career mining gold from Tombstone, Valentino, as the life tenant, can continue the existing mining operations. This is considered a continuation of the prior use and not an act of waste against the future interest holders.

If Axton’s heirs permit Valentino to mine, and the jurisdiction in which the land is located does not follow the Open Mines Doctrine, what are Valentino’s rights?

Answer: Valentino can mine any part of the property, but there is a restriction on the amount of gold he can remove.

Even if the Open Mines Doctrine does not apply, if Axton's heirs permit Valentino to mine, Valentino can proceed with mining. However, the doctrine of waste still generally applies to prevent excessive exploitation that would harm the future interest. Therefore, Valentino can mine any part of the property, but there will likely be a restriction on the amount of gold he can remove to prevent unreasonable depletion of the resource and protect the value for the remaindermen.