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Thursday, November 3, 2016


Judicial Notice
RULES OF EVIDENCE Purpose; These rules are intended to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
TITLE 28, UNITED STATES CODE §2702; (a) The Supreme Court shall have the
power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. (b) All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
TITLE 28, UNITED STATES CODE §2074; Rules of procedure and evidence; (b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.
COURT RULES OF EVIDENCE, Requirement of Original; To prove the content of a record, the original record is required.
1. Yeazell v. Copins, 402 P. 2d . 541, 98 Ariz. 109,(1965). Party who asserts fact has burden to establish fact.
2. the burden of proof rests heavily upon the party making such charge. Ransburg
Electro-Coating Corp. v. Nordson Corp., N.D.Ill.1968, 293 F.Supp. 448, 158
U.S.P.Q. 385.
3. Allegations of hardship unsupported by particulars by way of proof or affidavit cannot be accorded much weight in balancing conveniences. Essex Crane Rental Corp. v. Vic Kirsch Const. Co., Inc., S.D.N.Y.1980, 486 F.Supp. 529.
4. In its capacity as accuser, the Board is held to same burdens and obligations of proof as any other litigant who takes the affirmative, and Board may not, by accusing, put accused upon proof but, as accuser, must prove its charge. N.L.R.B. v. Riverside Mfg. Co., C.C.A. 5 1941, 119 F.2d 302.
5. The Board had the burden of proof to establish before itself, in its capacity of trier, the accusations it had laid in its accusatorial capacity, by credible evidence from which men of unbiased minds could reasonably decide in its favor and could not leave right of matter to rest in mere conjecture. Magnolia Petroleum Co. v. N.L.R.B., C.C.A. 5 1940, 112 F.2d 545.
6. In re Hamlet (After Remand), 225 Mich.App 505, 521; 571 NW2d 750 (1997). “Mere statement of pleader's conclusions, unsupported by allegations of fact upon which they may be based, will not suffice to state cause of action.”
7. Instruction, in prosecution for willfully attempting to evade federal income taxes that whenever facts appear beyond a reasonable doubt from the evidence that accused has signed his tax return, jury may infer and find that accused had knowledge of contents, was not constitutionally infirm and did not require postconviction relief on theory that instruction created conclusive presumption contrary to constitutional safeguards pertaining to burden of proof. Wainwright v. U. S., C.A.10 (Colo.) 1971, 448 F.2d 984, certiorari denied 92 S.Ct. 2437, 407
U.S. 911, 32 L.Ed.2d 684.
8. “admission of evidence subject to motion to strike because of insufficiency of proof of necessary preliminary facts is well within trial judge's discretion.” U. S. v. Weiner, C.A.9 (Cal.) 1978, 578 F.2d 757, certiorari denied 99 S.Ct. 568, 439
U.S. 981, 58 L.Ed.2d 651, rehearing denied 99 S.Ct. 1060, 439 U.S. 1135, 59
L.Ed.2d 98.
9. § 282. Presumption of validity; defenses; “Use of phrases such as "clear and convincing" or "clear and satisfactory" adds nothing but confusion to the application of the basic preponderance standard on the issue of validity in a patent infringement action; those phrases imply that there is a murky middle ground of proof between preponderance and reasonable doubt, whereas in fact there are only those two levels of proof. Jack Winter, Inc. v. Koratron Co., Inc., N.D.Cal.1974,
375 F.Supp. 1, 181 U.S.P.Q. 353, supplemented 409 F.Supp. 1019, 191 U.S.P.Q.
10. The mere filing of charges by an aggrieved party or a complaint by Board creates no presumption of unfair labor practices under this section, but it is incumbent upon one alleging violation of this subchapter to prove charges by fair preponderance of all the evidence. Boeing Airplane Co., Wichita Division, v. N.L.R.B., C.C.A. 10 1944, 140 F.2d 423.
11. In proceedings against employer charged with violation of this subchapter, burden of proof was on Board to prove its charges by fair preponderance of evidence. Texarkana Bus Co. v. N.L.R.B., C.C.A. 8 1941, 119 F.2d 480.
12. Burden of proof, in secondary sense of going forward with evidence, rests on party who at particular stage of the trial is required to meet a prima facie case established by his adversary, once sufficient evidence has been offered to justify a finding. Lodge 743, Intern. Ass'n of Machinists, AFL-CIO v. United Aircraft Corp., D.C.Conn.1969, 299 F.Supp. 877, supplemented 336 F.Supp. 811,
affirmed in part, remanded in part on other grounds 534 F.2d 422, certiorari denied 97 S.Ct. 79, 429 U.S. 825, 50 L.Ed.2d 87, on remand.
13. Redress may be sought in equity or at law, and the required allegations and proofs are substantially the same in one form of remedy as in the other. Parks v. Booth, U.S.Ohio 1880, 102 U.S. 96, 12 Otto 96, 26 L.Ed. 54.
14. Complaint alleging patent infringement without stating facts cannot broaden suit, nor extend plaintiff's rights beyond maximum scope of patents sued on. New Jersey Zinc Co. v. E.I. Du Pont de Nemours & Co., D.C.Del.1926, 11 F.2d 908.
15. In patent infringement suit, plaintiff sustains the burden of proof, when it shows as to infringement, that alleged infringing product corresponds to the test of identity and the burden is then on defendant to prove, if it can, that the product, though identical in composition, was not produced by the patented process. Kalo Inoculant Co. v. Funk Bros. Seed Co., C.C.A.7 (Ill.) 1947, 161 F.2d 981, 74
U.S.P.Q. 1, certiorari granted 68 S.Ct. 89, 332 U.S. 755, 92 L.Ed. 341, 75
U.S.P.Q. 365, reversed on other grounds 68 S.Ct. 440, 333 U.S. 127, 92 L.Ed.
588, 76 U.S.P.Q. 280.
16. Woerth v. City of Flagstaff, 808 P.2d 297, 167 Ariz. 412, (1990). Generally, party asserting claim for relief has burden of proving facts essential to its claim.
17. United States v. Tilghman, 134 F.3d 414 (D.C. Cir. 1998) Court's questioning of defendant denied defendant a fair trial.
18. State Tax Commission v. Graybar Elec. Co., 344 P.2d 1008, 86Ariz. 253,(1959).
Failure to produce evidence readily available to a party raises a presumption that the inference from such evidence would be adverse to him.
19. Alger v. Brighter Days Min. Corp., 160 P.2d 346, 63 Ariz. 135, (1945). When one is possessed of information pertaining to a transaction which he fails to produce, presumption will be indulged against him.
20. Park Inns Intern., Inc. v. Pacific Plaza Hotels, Inc., (1988). The “adverse inference of adverse presumption rule,” provides that when a party has relevant evidence within its control which, it fails to produce, that failure gives rise to an inference that the evidence is unfavorable to the party.
21. Southwest Cotton Co., v. Clements, 213 P. 1005, 25 Ariz. 124. (1923). Peculiar knowledge or possession of evidence carries with it the duty of giving it out to avoid the natural imputation from its concealment.
22. United States v. Tory, 52 F.3d 207 (9th Cir. 1995) The defense was prevented from arguing that an absence of evidence implied that evidence did not exist.
23. McCay v. CAPITAL RESOURCES COMPANY, LTD. 96-200 S.W.2d 1997
Where appellee apparently never possessed appellants' original note as provided in Ark. Code Ann. 4-3-309(a)(i) (Repl. 1991), but was required, even if it had, to have proven all three factors specified in 4-3-309(a) and did not do so, appellee could not enforce the original note's terms by the use of a copy; even if all three requirements in 4-3-309(a) had been proven, the trial court was still obligated to ensure that appellee provided adequate protection to the appellants from any future claim, and this, too, was not done. First, as previously discussed, we mention the unfairness in these circumstances that, if a duplicate was allowed in place of the original note, the McKays could later be subjected to double liability
if the actual holder of the note appeared. Next, we add that the Rules of Evidence are rules of the court involving legal proceedings, while the UCC is composed of statutes of law that established the rights and liabilities of persons. Again, as previously discussed, Capital Resources, as an assignee of the McKays' note, could not sue on the underlying debt the McKays owed to Landmark Savings.
For Capital Resources to have prevailed in enforcing the McKays' note, it was required either to produce the original or satisfy the requirements for a lost negotiable instrument under 4-3-309(a) and (b). Because Capital failed to do either, we must reverse and remand.
24. Mortgage Securities Inc. v. Hartley LORD. No. 4D02-4051. July 23, 2003.
Mortgagee by assignment brought foreclosure action. The Circuit Court, 15th Judicial Circuit, Palm Beach County, Edward Fine and John Wessel, JJ., entered summary judgment for mortgagor. Mortgagee appealed. The District Court of Appeal, Stone, J., held that mortgagee could not maintain cause of action to enforce missing promissory note or foreclose mortgage, in absence of proof that mortgagee or assignor ever had possession of note. The purpose of the section is well expressed by commentator Carl W. Ehrhardt as follows: [21] The drafters of the Code excluded from the general rule of admissibility of duplicates these documents because the possessor of the documents is the owner of the obligation that they represent and the party who may bring a cause of action based on the document. Therefore, the person who possesses the duplicate may not possess the cause of action. For example, if A makes a xerox copy of a promissory note and subsequently negotiates the original to B, under section 90.953(1), A, the transferor, is not able to sue on the xerox copy of the promissory note. [22] Ehrhardt, Florida Evidence § 953.1 (2d ed. 1984). See also Lowery v. State, 402
So.2d 1287 (Fla. 5th DCA 1981). To fall under section 90.953(1), the agreement would have not only to evidence a right to the payment of money, but be "of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment" (emphasis added).
25. FIGUEREDOv.BANK ESPIRITO SANTO No. 88-1808.Jan. 31, 1989. FL Third District. The plaintiff failed to produce for admission into evidence the original copy of a negotiable promissory instrument as is expressly required by section
90.953(1), Florida Statutes (1987). For this reason, the final judgment of foreclosure is vacated with directions for the trial court to receive the original promissory note in evidence SMS Financial LLc. v. Abco Homes, Inc. No.98-
50117 February 18, 1999 (167 F. 3d. 235; 5th Circuit Court of Appeals.) In
contrast, here, the undisputed evidence was that EMC, the assignor, never had possession of the notes and, thus, could not enforce the note under section
673.3091 governing lost notes. Because EMC could not enforce the lost note under section 673.3091, it had no power of enforcement which it could assign to State Street.
26. RAYMOND E. SHORES AND MARCENE G. SHORES v. FIRST FLORIDA RESOURCE CORPORATION (10/11/72) Appellants are entitled to assurance that they will not later be sued by a holder of these instruments…. If there are parties having any claim to these instruments they should be brought into the action and the matter determined. The instruments should then be reestablished, recorded and an appropriate judgment entered.
27. 247 U.S. 142; 38 S. Ct. 452;62 L. Ed. 1038 MARIN v. AUGEDAHL No. 227 In Thompson v. Whitman, 18 Wall. 457, a decision obviously "rendered on great consideration," prior decisions dealing with the full faith and credit clause of the Constitution were carefully reviewed, and it was there decided that when the question of jurisdiction is appropriately presented the record of a judgment rendered may, constitutionally, be assailed in a collateral proceeding to enforce it in another State, even as to facts therein stated to have been passed upon by the court. This decision has been [28] repeatedly affirmed and followed, and in National Exchange Bank v. Wiley, 195 U.S. 257, it was accepted as authority sufficient for holding that a judgment by confession under warrant of attorney could be collaterally attacked in a foreign State by showing that the plaintiff in whose favor it was rendered in an Ohio court of general jurisdiction was not the owner of the note in suit at the time, and that the court entering it was, therefore, without jurisdiction, although the rendering of the judgment involved, or implied, the finding that the plaintiff was then the owner of the note…The taxation of the full value of the debts represented by these promissory notes deprived the executors and beneficiaries of the estate of their property without due process of law, and was in contravention of the Fourteenth Amendment…Promissory notes are only evidences of debt and not the debts themselves. Their situs, therefore, is not the situs of the debts; the situs of the debts is at the residence of one or the other of the parties to the relation. Buck v. Beach, 206 U.S. 392; Pelham v. Way,
15 Wall. 196. The situs of bonds appears to determine the situs of the debts they symbolize, but bonds have always been sharply distinguished from promissory notes in that regard. For certain purposes bonds have a peculiar recognition in the common law, and for purposes of taxation, annual or inheritance, are often treated as having a situs dependent [*4] upon their physical whereabouts. Matter of Bronson, 150 N.Y. 1; Matter of Fearing, 200 N.Y. 340; State Tax on Foreign Held Bonds, 15 Wall. 300. But the rule does not embrace promissory notes. Buck v. Beach, 206 U.S. 392, 403. This distinction between bonds and promissory notes has a historical basis. Selliger v. Kentucky, 213 U.S. 200, 204. A promissory note may be the subject of larceny. People v. Ogdensburgh, 48 N.Y. 390, 397; Buck v. Beach, 206 U.S. 407… In support of this position it was argued that if bonds were subject to taxation simply because of their presence within the jurisdiction it [*7] was due to the survival of primitive notions that identified the obligations with the parchment or paper upon which they were written, that bills and notes had a
different history, and that there was no ground for extending the conceptions of the infancy of the race to them. It was pointed out that the power to tax simple contracts depends upon power over the person of one of the parties and does not attach to documentary evidence of such contracts that may happen to be within the jurisdiction. Cases were cited in which this court has pronounced bills and notes to be only evidences of the simple contracts that they express, Pelham v. Way, 15 Wall. 196; Wyman v. Halstead, 109 U.S. 654, 656, and the precise issue was thought to be disposed of by Buck v. Beach, 206 U.S. 392. We shall discuss
this case, but for the moment it is enough to say that for the purposes of argument we assume that bills and notes stand as mere evidences at common law. But we are bound by the construction given to the New York statutes by the New York courts, and the question is whether a statute that we must read as purporting to give to bills and notes within the State the same standing
28. No. 45 1914.SCT.244 , 233 U.S. 434, 58 L. Ed. 1030, 34 S. Ct. 607 WHEELER v. SOHMER, COMPTROLLER OF THE STATE OF NEW YORK [10] Promissory notes are only evidences of debt and not the debts themselves. Their situs, therefore, is not the situs of the debts; the situs of the debts is at the residence of one or the other of the parties to the relation. Buck v. Beach, 206
U.S. 392; Pelham v. Way, 15 Wall. 196. [11] As to the distinction between a debt and the evidence establishing it, see Wyman v. Halstead, 109 U.S. 654; Attorney General v. Bouwens, 4 M. & W. 171, 191; Hunter v. Supervisors, 33 Iowa, 376; Hanson's Death Duties (4th ed.), p. 239. [12] A note is the representative of a debt as a warehouse receipt is the representative of personal property, but such a
receipt cannot be taxed at the value of the goods on the theory that in some way it
represents them. Selliger v. Kentucky, 213 U.S. 200. [16] The situs of bonds appears to determine the situs of the debts they symbolize, but bonds have always been sharply distinguished from promissory notes in that regard. [19] This distinction between bonds and promissory notes has a historical basis. Selliger v. Kentucky, 213 U.S. 200, 204. [20] A promissory note may be the subject of larceny. People v. Ogdensburgh, 48 N.Y. 390, 397; Buck v. Beach, 206 U.S. 407.
29. The “Doctrine of trust responsibility” See: Utah L. Rev. 1471, 1496-97 (1994)
Fax Telecommunicaciones, Inc. v. AT&T, 138 F.3d 479, 487 (2d Cir. 1998). Given that contracts – unlike tariffs – are not a species of federal law, it follows that state law must govern them. See Quayle v. MCI Worldcom, Inc., 2001 WL
132 9594 (N.D.Cal. 2001)
30. The “Doctrine of trust responsibility” See: Utah L. Rev. 1471, 1496-97 (1994)
31. Federal Crop Ins Comp v. Merrill, 332 U.S. 380, 68 S.Ct. 1 (1947) “Whatever the form in which the Government functions, anyone entering into arrangement with the Government takes the risk of having to accurately ascertain that he who purports to act for the Government stays within the bounds of his authority. The scope of his authority may be explicitly defined by the Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may be unaware of the limitations upon his authority.” 332 U.S. at 384.
32. Bankamerica Pension Plan v. McMath, 206 F.3d 821, 826 (9th Cir. 2000) (citations omitted). “A party abandons an issue when it has a full and fair opportunity to ventilate its views with respect to an issue,” “and instead chooses a position that removes the issue from the case,”
33. Sittler v. Board of Control of Michigan College of Mining and Technology, 333
Mich. 681, 53 N.W. 2d 681 (1952) “The extent of the authority of the people’s public agents is measured by the statute from which they derive their authority, not by their own acts and assumption of authority.”
34. Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790 (1955) “Agencies, created by statute or Executive Order, must of course be free to give reasonable scope to the terms conferring their authority. But they are not free to ignore plain limitations on that authority.” 349 U.S., at 345
35. Lavin v. Marsh, F. 2d. 1378 (9th Cir., 1981) “persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority and provide misinformation.” 644 F. 2d., at 1383.
36. In re Benny, 29 B.R. 754, 762 (N.D. Cal., 1983): “An unlawful or unauthorized exercise of power does not become legitimated or authorized by reason of habitude.”
37. Outboard Marine Corp. v. Thomas, 610 F. Supp. 1234, 1242 (N.D. Ill., 1985) “Acting without statutory power at all, or misapplying one’s statutory power, will result in a finding that such action was ultra vires.”
38. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587 (1931): “Official powers can not be extended beyond the terms and necessary applications of the grant. If broader powers be desirable, the must be conferred by Congress.
They cannot be merely assumed by the administrative offices; nor can they be created by the courts in the proper exercise of their judicial functions.” 283 U.S., at 649
39. Obviously, administrative agencies, like police officers (People v. Cahan (1955)
44 Cal.2d 434, 437 [282 P.2d 905, 50 A.L.R.2d 513] [former Pen. Code, § 653h "could not authorize violations of the Constitution]), must obey the Constitution and may not deprive persons of constitutional rights. Southern Pac. Transportation Co. v. Public Utilities Com., 18 Cal.3d 308 [S.F. No. 23217. Supreme Court of California. November 23, 1976.]
40. ...a police officer [145 Cal.App.3d 399] must be held to a higher standard than other employees. A police officer is expected to tell the truth.
41. Unlawful activity by a police officer warrants dismissal. (Parker v. State Personnel Bd. (1981) 120 Cal.App.3d 84, 88 [174 Cal.Rptr. 333]; Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 577 [168 Cal.Rptr. 822].) [4b] Further, "honesty is not considered an isolated or transient behavioral act; it is more of a continuing trait of character." (Gee v. State Personnel Bd. (1970) 5 Cal.App.3d
713, 719 [85 Cal.Rptr. 762].)
42. "Any breach of trust must therefore be looked upon with deep concern.
Dishonesty in such matters of public trust is intolerable." (Italics added; Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 882 [130 Cal.Rptr. 292]
Ackerman v. State Personnel Bd. (1983) 145 Cal.App.3d 395 , 193 Cal.Rptr. 190
[No. AO21059. Court of Appeals of California, First Appellate District, Division
Three. June 27, 1983.]
43. Cramer v. U.S., 261 U.S. 219 (1923); Cobell v. Norton, 240 F.3d 1081, 1098 (D.C. Cir. 2001); Brown v. U.S., 86 F3d. 1554, 1559-63 (Fed Cir. 1996); Pelt v. Utah, 104 F.3d 1534 (10th Cir. (1996); “holding that a federal statute delegating authority to state officials … creates trust duties that can be enforced against those officials”. and “Federal officials must faithfully execute their trust duties, and courts are required to carefully scrutinize their actions”.
44. U.S. v. Mitchell, 463 U.S. 206, 225 (1983); Cobell v. Norton, 240 F.3d 1081,
1098 (D.C. Cir. 2001) “the government has a longstanding and substantial trust obligation” and “a fiduciary relationship normally exists with respect to such monies or properties, unless Congress has provided otherwise”.
45. Cobell v. Norton, 240 F.3d 1081, 1098 (D.C. Cir. 2001); “stricter standards” that apply to a fiduciary” and “Thus, federal officials, as a result of the trust doctrine, should interpret their responsibilities to Indians broadly and assist them to the maximum extent allowable under the treaties and statutes they are implementing.”
46. U.S. v. Sandoval, 231 U.S. 28, 48 (1913) “recognizing that a trust relationship exists with the Pueblos of New Mexico, despite the fact that no treaties were signed with any of the Pueblos”.
47. U.S. v. Mitchell, 463 U.S. 206, 225 (1983); Morton v. Mancari, 417 U.S. 535,
551-52 (1974); U.S. v. Mason, 412 U.S. 391, 397 (1973): Courts have recognized that when Congress delegates to federal officials the power to control or manage…. resources, their actions with respect to those resources must then “be judges by the most exacting fiduciary standards.”
48. US v. SILVA, No. 03-3628 (7th Cir. August 18, 2004)
Defendant successfully appeals his drug conviction and sentence where defendant was convicted on the basis of hearsay and is subsequently entitled to a new trial.
49. US v. RODRIGUEZ-MARRERO, No. 01-1647 (1st Cir. November 05, 2004) Defendant's conviction for conspiracy to commit murder is reversed where the district court erred in admitting testimonial hearsay against him.
50. United States v. Beydler, 120 F. 3d 985 (9th Cir. 1997) Unavailable witness incriminating the defendant was inadmissible hearsay.
51. Frunzar v. Allied Property and Casualty Ins. Co. (Iowa 1996) 548 N.W.2d 880
Professional statements of litigants attorney are treated as affidavits, and attorney making statements may be cross-examined regarding substance of statement.
52. Porter v. Porter (N.D. 1979 ) 274 N.W.2d 235 – The practice of an attorney filing an affidavit on behalf of his client asserting the status of that client is not approved, inasmuch as not only does the affidavit become hearsay, but it places the attorney in a position of witness thus compromising his role as advocate.
53. McChain v. City of Fond Du Lac (Wis 1959) 96 N.W.2d 607 – An affidavit on information and belief is an anomaly, and is not affirmance on knowledge and is not proof which would be admitted in evidence on trial of the issues, and the most it does is to affirm that the Affiant was informed and believed as fact to be true
54. PEOPLE v. ADAMS, No. C040891 (Cal. 1st App. Dist. July 23, 2004)
Defendant successfully challenged his conviction based on the trial court's error in admitting evidence of the victim's out-of-court statements, in violation of the confrontation clause.
55. PEOPLE v. KILDAY, No. A099095 (Cal. 1st App. Dist. October 22, 2004) Defendant's convictions for torture and corporal injury upon a cohabitant are reversed where the trial court improperly admitted statements that are testimonial, which violated the confrontation clause under the new rule in Crawford v. Washington 124 S.Ct. 1354 (2004).
56. United States v. Marsh, 144 F.3d 1229 (9th Cir. 1998) Admission of complaints by defendant's customers denied confrontation.
57. United States v. Edwards, 154 F.3d 915 (9th Cir. 1998) Defendant was denied confrontation when prosecutor became potential witness during trial.
58. United States v. Beckman, 222 F.3d 512 (8th Cir. 2000) Limiting defense cross violated confrontation.
59. Positive law. "Law actually and specifically enacted or adopted by proper
authority for the government of an organized jural society." Black's Law
Dictionary 5th Edition
60. Prima facie. "At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary." Black's Law Dictionary 5th Edition
61. Von Hoffman v. City of Quincy, 4 Wall. 535, 552. "Nothing can be more material
to the obligation than the means of enforcement. Without the remedy the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable, and both are parts of the obligation, which is guaranteed
by the Constitution against invasion. The obligation of a contract 'is the law which binds the parties to perform their agreement.'" RED CROSS LINE vs. ATLANTIC FRUIT COMPANY. 264 U.S. 109, 68 L. Ed. 582, 44 S. Ct. 274
February 18, 1924 Decided
62. “however, that the illegal provisions of the contract are “void,” and thus those provisions were never part of a validly formed contract.” Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1140 (9th Cir. 1991),
“voidness” challenges go to the very existence of a contract provision, and are not merely a defense to a legally formed contract.”
63. “unconscionability is not merely a defensive doctrine but rather it goes to the predicate of whether a contract was validly formed in the first place.” California Grocers Ass’n, Inc. v. Bank of America, 22 Cal.App.4th 205, 217 1994):
64. Blake v. Ecker, 93 Cal.App.4th 728, 742 (2001) (the substantive element of
unconscionability “traditionally involves contract terms that are so one-sided as to
‘shock the conscience’ or that impose harsh or oppressive terms.”) (emphasis
added) (citing Armendariz, 24 Cal.4th at 114).
65. “if a contract is one of adhesion, it is procedurally unconscionable.” Circuit City v. Adams, 279 F.3d 889, 893 (9th Cir.), cert. denied, 122 S. Ct. 2329 (2002)…
66. “a contract is procedurally unconscionable if it is “a contract of adhesion: a
standard-form contract, drafted by the party with superior bargaining power,
which relegates to the other party the option of either adhering to its terms without modification or rejecting the contract entirely.”; Flores v. Transamerica HomeFirst, Inc., 93 Cal.App.4th 846, 853 (2001) (same); Mercuro v. Superior Court, 96 Cal.App.4th 167, 174 (2002), rev. denied.
67. It is essential to the creation of a contract that there be a mutual or reciprocal assent. Sanford v. Abrams (1888) 24 Fla 181, 2 So 373; Ross v. Savage (1913) 66
Fla 106, 63 So 148; McCay v. Sever (1929) 98 Fla 710, 124 So 44; United State Rubber Products, Inc. v. Clark (1941) 145 Fla 631, 200 So 385; Mann v. Thompson (1958, Fla App D1) 100 So 2d 634.
68. That the assent be to a certain and definite proposition. Fincher v. Belk-Sawyer Co. (1961, Fla App D3) 127 So 2d 130; Goff v. Indian Lake Estates, Inv. (1965, Fla App D2) 178 So 2d 910; Hewitt v. Price (1969, Fla App D3) 222 So 2d 247.
69. Without a meeting of the minds of the parties on an essential element, there can be no enforceable contract. Hettenbaugh v. Keyes-Ozon-Fincher Ins., Inc. (1962, Fla App D3) 147 So 2d 328; Goff v. Indian Lake Estates, Inc. (1965, Fla App D2)
178 So 2d 910.
70. In order to form a contract, the parties must have a distinct understanding, common to both, and without doubt or difference. Unless all understand alike, there can be no assent, and therefore no contract. Webster Lumber Co. v. Lincoln (1927) 94 Fla 1097, 115 So 498; Minsky's Follies of Florida, Inc v. Sennes (1953
206 F2d 1; O'neill v. Corporate Trustees, Inc. (1967) 376 F2d 818.
71. Until the terms of the agreement have received the assent of both parties, the negotiation is open and imposes no obligation on either. Goff v. Indian Lake Estates, Inc. (1965 Fla App D2) 178 So 2d 910: Carr v. Duval (1840) 39 US 77,
10 L Ed 361.
72. The assent of each party must be freely given; a contract entered into as a result of the exercise of duress or undue influence by the other party, or procured by the fraud of one of the parties, lacks the essential element of real assent and may be avoided by the injured party. Wall v. Bureau of Lathing and Plastering (1960, Fla App D3) 117 So 2d 767.
73. An actual assent by the parties upon exactly the same matters is indispensable to the formation of a contract. Bullock v. Hardwick (1947) 158 Fla 834, 30 So 2d
539: Hettenbaugh v. Keyes- Ozon - Fincher Ins. , Inc (1962, Fla App D3) 147 So
2d 328: General Finance Corp. V. Stratton (1963 Fla App D1) 156 So 2d 664.
74. Federal Deposit Insurance Corporation v. Turner, 869 F. 2d 270 (6th Cir. 1989) “Turner was told that the blank for the debtor’s name would be completed by adding the name of a company affiliated with Turner. Unknown to Turner, the guarantee was completed by filling in the name of a debtor with whom Turner
was not affiliated and by altering the guarantee to change the name of the bank/creditor. The court held that Turner could assert a fraud claim against the Federal Deposit Insurance Corporation as owner of the note in its corporate capacity.”
75. American National Bank & Trust Company v. Hanson Construction Co., Inc.,
1991 WL 42668 (Ky. 1991) “The court held that, considering the relationship of the parties, Hanson was reasonable in relying upon the alleged representations by the bank. The court held that the future financing provisions were not so indefinite that it would be unreasonable for Hanson to rely upon them. Hanson’s fail u re to read the loan documents was excusable since he was encouraged by the bank officer not to read them and the bank officer advised him not to have his lawyer present at the closing. The court affirmed a jury award of compensatory and punitive damages against the bank.”
76. Nibbi Brothers. Inc. v. Brannen Street Investors, 205 Cal. App. 3d 1415 (1988) “The court acknowledged that the statute would not bar a claim for unjust enrichment if it could be shown that a benefit had been conferred on the lender by mistake, fraud, coercion or request. Thus, had Home induced Nibbi to provide work on the project under circumstances in which Home’s inducement fell under circumstances traditional categories of mistake, fraud, coercion or request, a claim
for unjus t enrichment m i ght esc ape the re ach of th e statut or y b ar.”
77. Bank of Sun Prairie v. Esser, 151 Wis.2d 11, 442 N.W.2d 540 (1989) “The court affirmed the jury verdict in favor of Esser for fraud based upon evidence that at the closing the bank advised Esser that she was signing only for the new truck loan. The court h eld t hat Ess er’s r eli ance on the b a nk’s mis represent ati ons was
reasonabl e since she trust ed the bank’s s ecurit y pr acti ces and b eli eved that the
guarantee only applied to the new loan. The court also held that the trial court
shoul d have subm it ted Esser’s puniti ve dama ge cl aim to t he jur y be caus e o f
evidence th at t he bank’s mi srepresentation w as ac ti ve and the bank took
advanta ge o f Esser ’s trus t and r eli anc e.”
78. Touche Ross Limited v. Filipek, 778 P.2d 721 (Haw. 1989) “the court held that the alleged misrepresentations made by the bank were material and actionable since it was claimed that the bank affiliate did not have the development expertise it was represented to have and had no intention of advancing the funds when the promise was made.”
79. Blankenheim v. E.F. Hutton & Company, Inc., 217 Cal. App. 3d 1463 (1990) “The court held that a claim of negligent misrepresentation is included within the definition of “fr aud” as used in the statute and as that term is defined in Civil Code § 1572. The court also held that questions of fact were presented as to
whether the investors h a d just ifiabl y reli ed upon Hutton’s all eged rep rese ntations
concerning the investme nt.”
80. Official source for the United States laws is Statute at Large and United States
Code is only prima facie evidence of such laws. Royer's Inc. v. United States
(1959, CA3 Pa) 265 F.2d 615, 59-1 USTC 9371, 3 AFTR 2d 1137.
81. Statutes at Large are "legal evidence" of laws contained therein and are accepted as proof of those laws in any court of United States. Bear v. United States (1985, DC Neb) 611 F Supp 589, affd (1987, CA8 Neb) 810 F.2d 153.
82. Unless Congress affirmatively enacts title of United States Code into law, title is only prima facie" evidence of law. Preston v. Heckler (1984, CA9 Alaska) 734
F.2d 1359, 34 CCH EPD 34433, later proceeding (1984, DC Alaska) 596 F Supp
83. Where title has not been enacted into positive law, title is only prima facie or rebuttable evidence of law, and if construction is necessary, recourse may be had to original statutes themselves. United States v. Zuger (1984, DC Conn) 602 F Supp 889, affd without op (1985, CA2 Conn) 755 F.2d 915, cert den and app dismd (1985) 474 US 805, 88 L Ed 2d 32, 106 S Ct 38.
84. Even codification into positive law will not give code precedence where there is conflict between codification and Statutes at Large. Warner v. Goltra (1934) 293
US 155, 79 L Ed 254, 55 S Ct 46; Stephan v. United States (1943) 319 US 423,
87 L Ed 1490, 63 S Ct 1135; United States v. Welden (1964) 377 US 95, 12 L 2d
152, 84 S Ct 1082.
85. United States Code does not prevail over Statutes at Large when the two are inconsistent. Stephan v. United States (1943) 319 US 423, 87 L Ed 1490, 63 S Ct
1135; Peart v. The Motor Vessel Bering Explorer (1974, DC Alaska) 373 F Supp
86. Although United States Code establishes prima facie what laws of United States are, to extent that provisions of United States Code are inconsistent with Statutes at Large, Statutes at Large will prevail. Best Food, Inc. v. United States (1965) 37
Cust Ct 1, 147 F Supp 749.Where there is conflict between codification and
Statutes at Large, Statutes at Large must prevail.
87. American Export Lines, Inc. v. United States (1961) 153 Ct Cl 201, 290 F. 2d
925; Abell v. United States (1975) 207 Ct Cl 207, 518 F.2d 1369, cert den (1976)
429 US 817, 50 L Ed 2d 76, 97 S Ct 59.
88. "Law of the land," "due process of law," and "due course of law" are
synonymous. People v. Skinner, Cal., 110 P.2d 41, 45; State v. Rossi, 71, R.I.
284, 2d 323, 326; Direct Plumbing Supply Company v. City of Dayton, 138 Ohio
St. 540, 38 N.E. 2d 70, 72, 137 A.L.R. 1058; Stoner v. Higginson, 316 Pa. 481,
175 A. 527, 531.
89. The term "due process of law," as sued in the federal constitution, has been repeatedly declared to be the exact equivalent of the phrase "law of the land" as sued in the Magna Charta. 16 Am. Jur. 2d 547;
90. Due course of law: This phrase is synonymous with "Due Process of Law" or "Law of the Land" and means law in its regular course of administration through courts of justice. Kansas Pac. RY. CO. V Dunmeyer 19 KAN 542.
91. The words "due process of law" are intended to convey the same meaning as the words "by law of the land," in Magna Charta. Murray v. Hoboken Land Co., 59
U.S. (18 How) 272.
92. Amendment V of the constitution of the United States provides: "No person shall be deprived of life, liberty, or property without due process of law. A similar
provision exists in all the state constitution; the phrases "Due Course of Law", and the "Law of the Land" are sometimes used; but all three of these phrases have the same meaning and that applies conformity with the ancient and customary laws of the English people or laws indicated by parliament. Davidson v. New Orleans 96
U.S. 97, 24, L Ed 616.
93. "The effect of the statute is to eliminate altogether the question of intent and this is a denial of due process of law. Calder v. Bull, 3 Dall 386; Coffey v. Harlan County, 04 U.S. 659.
94. It has been said that due process of law must be understood to mean law in the regular course of administration through courts of justice according to those rules and forms which have been established for the protection of private rights. 16
Am. Jur., 2d 546.
95. A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias. 349 U.S. 133, 136 (1955).
96. When the responsibilities of lawmaker, prosecutor, judge, jury, and disciplinarian are thrust upon a judge, he is obviously incapable of holding the scales of justice perfectly fair and true, and reflecting impartially on the guilt or innocence of the accused. He truly becomes the judge of his own cause. The thus denied an indispensable element of the due process of law. Fisher v. Pace, 336
U.S. 155, 167.
97. Due process clause not only applies when one's physical liberty is threatened but also where a person's good name, reputation, honor or integrity are at stake. (Gotkin vs Miller, 514, F.2d 125 C.A. N.Y. 1975)
98. "A Statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of "due process of law." (Conally vs General Construction Co. 255 US 81; International Harvester Co. vs Kentucky
234 US 216; United States vs Reese 92 US 214; Yucong Eng vs Trinidad 271 US
99. "The due process clause of the Fifth Amendment guarantees to each citizen the equal protection of the laws and prohibits a denial thereof by any Federal official." (See rights) Bolling v. Sharpe, 327 U.S. 497.
100. "The due process guaranteed by this amendment means that there can be no proceeding against life, liberty, or property which may result in the observance of those general rules established in our system of Jurisprudence for the security
of private rights." (U.S. vs Kuwzbzva (DC-CAL) 56F Supp. 716.)

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