EFTA00811439

RIBAR BAR REVIEW ultistate Bar Examination Released Questions n2 RACTICE EXAM 2 EFTA00811439 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • Question I • Contracts other eight, the state's evidence showed the following: The gang leader announced a party to In January, a teacher contracted with a summer camp celebrate the recent release of a gang member from to serve as its head counselor at a salary of $10,000 jail. But the party was not what it seemed. The gang for 10 weeks of service from the first of June to the leader had learned that the recently released gang middle of August. In March, the camp notified the member had earned his freedom by informing the teacher that it had hired someone else to act as head authorities about the gang's criminal activities. The counselor and that the teachers services would not be gang leader decided to use the party to let the other needed. In April, the teacher spent $200 traveling to gang members see what happened to a snitch. He told interview at the only other nearby summer camp for a no one about his plan. At the party, after all present position as its head counselor. The teacher was not had consumed large amounts of liquor, the gang chosen for that job. The teacher then took a position leader announced that the released gang member was teaching in a local summer school at a salary of an informant and stabbed him with a knife in front of $6,000 for the same 10-week period as the summer the others. The eight other gang members watched camp. and did nothing while the informant slowly bled to death. The jury found the eight gang members guilty In a breach-of-contract action against the camp, to of murder and they appealed. which of the following amounts, as damages, is the teacher entitled? Should the appellate court uphold the convictions? (A) $4,000 (A) No, because mere presence at the scene of a (B) $4,200 crime is insufficient to make one an accomplice. (C) $10,000 (B) No, because murder is a specific intent crime, (D) $10,200 and there is insufficient evidence to show that they intended to kill. Question 2 - Constitutional Law (C) Yes, because the gang members made no effort to save the informant after he had been stabbed. A federal statute imposes an excise tax of $100 on (D) Yes, because voluntary intoxication does not each new computer sold in the United States. It also negate criminal responsibility. appropriates the entire proceeds of that tax to a special fund, which is required to be used to purchase Question 4 - Real Property licenses for computer software that will be made available for use, free of charge, to any resident of A landlord leased an apartment to a tenant by written the United States. lease for two years ending on the last day of a recent month. The lease provided for $700 monthly rental. Is this statute constitutional? The tenant occupied the apartment and paid the rent for the first 15 months of the lease term, until he (A) No, because the federal government may not moved to a new job in another city. Without impose any direct taxes on citizens of the United consulting the landlord, the tenant moved a friend States. into the apartment and signed an informal writing (B)No, because this statute takes without just transferring to the friend his "lease rights" for the compensation the property of persons who hold remaining nine months of the lease. The friend made patents or copyrights on computer software. the next four monthly $700 rental payments to the (C) Yes, because it is a landlord. For the final five months of the lease term, reasonable exercise of the power of Congress to tax and spend for the no rent was paid by anyone, and the friend moved out general welfare. with three months left of the lease term. The landlord (D) Yes, because the patent power authorizes was on an extended trip abroad, and did not learn of Congress to impose reasonable charges on the the default and the vacancy until last week. The sale of technology and to spend the proceeds of landlord sued the tenant and the friend, jointly and those charges to advance the use of technology in the United severally, for $3,500 for the last five months' rent. States. Question 3 - Criminal What is the likely outcome of the lawsuit? Law and Procedure Nine gang (A) Both the tenant and the friend are liable for the members were indicted for tenth gang the murder of a full $3,500, because the tenant is liable on privity member who had become The gang leader an informant. of contract and the friend is liable on privity of pleaded guilty. At the trial of the estate as assignee. MBE RELEASED t'EsTIONS 31 MBE MIXED PRACTICE 2 EFTA00811440 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 (B) The hiend is liable for $1,400 on privity of moved for summary judgment, arguing that the estate, which lasted only until he vacated, and common-law firefighters' rule barred the suit. the tenant is liable for $2,100 on privity of contract and estate for the period after the friend Should the court grant the motion? vacated. (C) The friend is liable for $3,500 on privity of estate (A) No, because the firefighters' rule does not apply and the tenant is not liable, because the to police officers. landlord's failure to object to the friends (B) No, because the police officer's injuries were not payment of rent relieved the tenant of liability. related to any special dangers of her job. (D) The tenant is liable for $3,500 on privity of (C) Yes, because the accident would not have contract and the friend is not liable, because a occurred but for the emergency. sublessee does not have personal liability to the (D) Yes, because the police officer was injured on original landlord. the job. Question 5 - Evidence Question 7 - Contracts In a civil trial for professional malpractice, the A lumber supplier agreed to sell and a furniture plaintiff sought to show that the defendant, an manufacturer agreed to buy all of the lumber that the engineer, had designed the plaintiffs flour mill with manufacturer required over a two-year period. The inadequate power. The plaintiff called an expert sales contract provided that payment was due 60 days witness who based his testimony solely on his own after delivery, but that a 3% discount would be professional experience but also asserted, when allowed if the manufacturer paid within 10 days of asked, that the book Smith on Milling Systems was a delivery. During the first year of the contract, the reliable treatise in the field and consistent with his manufacturer regularly paid within the 10-day period views. On cross-examination, the defendant asked the and received the 3% discount. Fifteen days after the witness whether he and Smith were ever wrong. The supplier made its most recent lumber delivery to the witness answered, "Nobody's perfect." The defendant manufacturer, the supplier had received no payment asked no further questions. The defendant called a from the manufacturer. At this time, the supplier second expert witness and asked, "Do you accept the became aware of rumors from a credible source that Smith book as reliable?" The second witness said, "It the manufacturer's financial condition was once was, but it is now badly out of date." The precarious. The supplier wrote the manufacturer, plaintiff requested that the July be allowed to demanding assurances regarding the manufacturer's examine the book and judge for itself the book's financial status. The manufacturer immediately reliability. mailed its latest audited financial statements to the supplier, as well as a satisfactory credit report Should the court allow the jury to examine the book? prepared by the manufacturer's banker. The rumors proved to be false. Nevertheless, the supplier refused (A) No, because the jury may consider only passages to resume deliveries. The manufacturer sued the read to it by counsel or witness. lumber supplier for breach of contract. (B) No, because the plaintiffs expert in testifying did not rely on the treatise but on his own Will the manufacturer prevail? experience. (C) Yes, because an expert has testified that the (A) No, because the contract was unenforceable, treatise is reliable. since the manufacturer had not committed to (D) Yes, because the jury is the judge of the weight purchase a definite quantity of lumber. and credibility to be accorded both written and (B) No, because the supplier had reasonable grounds oral evidence. for insecurity and was therefore entitled to cancel the contract and refuse to make any future Question 6 - Torts deliveries. (C) Yes, because the credit report and audited A driver, returning from a long shift at a factory, fell financial statements provided adequate assurance asleep at the wheel and lost control of his car. As a of due performance under the contract. result, his car collided with a police car driven by an (D) Yes, because the supplier was not entitled to officer who was returning to the station after having condition resumption of deliveries on the receipt responded to an emergency. The police officer was of financial status information. injured in the accident. The police officer sued the driver in negligence for her injuries. The driver Question 8 - Constitutional Law • MBE RELEASED QUESTIONS 32 MBE MIXED PRACTICE 2 EFTA00811441 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • A toy manufacturer that has its headquarters and sole the friend recorded the deed from him. As soon as the manufacturing plant in the state of Green developed a daughter discovered this recording and the friend's "Martian" toy that simulates the exploration of Mars claim to the land, she brought an appropriate action by a remote-controlled vehicle. It accurately depicts against the friend to quiet title to the land. the Martian landscape and the unmanned exploratory vehicle traversing it. The toy is of high quality, safe, For whom should the court hold? durable, and has sold very well. Other toy manufacturers, all located outside Green, developed (A) The daughter, because the death of the similar toys that are lower in price. These landowner deprived the subsequent recordation manufacturers have contracts to sell their Martian of any effect. toys to outlets in Green. Although these toys are safe (B) The daughter, because the friend was dishonest and durable, they depict the Martian landscape less in reporting that he had destroyed the deed. realistically than the toys manufactured in Green. (C) The friend, because the deed was delivered to Nevertheless, because of the price difference, sales of him. these toys have cut severely into the sales of the (D) The friend, because the deed was recorded by Martian toys manufactured in Green. The Green him. legislature subsequently enacted a law "to protect the children of Green from faulty science and to protect Question 10 - Criminal Law and Procedure Green toy manufacturers from unfair competition." This law forbids the sale in Green of any toy that An undercover police detective told a local drug purports to represent extraterrestrial objects and does dealer that she wanted to buy cocaine, but that she not satisfy specified scientific criteria. The Martian needed time to raise the necessary funds. The drug toy manufactured in Green satisfies all of these dealer said that he needed time to get the cocaine. criteria; none of the Martian toys of the competing They agreed to meet again in 10 days. An hour later, manufacturers meets the requirements. without a warrant, other officers forcibly entered the drug dealer's apartment and arrested him for Is the Green law constitutional? attempted possession of a controlled substance. (A) No, because it abrogates the obligations of the If the drug dealer is prosecuted in a common-law contracts between the other toy manufacturers jurisdiction for attempted possession of cocaine, and their Green outlets who have agreed to sell should he be convicted? their Martian toys. (B) No, because it imposes an undue burden on (A) No, because he had not taken sufficient acts interstate commerce. toward commission of the crime. (C) Yes, because it deals only with a local matter, the (B) No, because he was illegally arrested. sale of toys in Green stores. (C) Yes, because by objective standards an (D) Yes, because the states interest in protecting the agreement between them had occurred. state's children from faulty science justifies this (D) Yes, because his intention to obtain the cocaine burden on interstate commerce. was unequivocally expressed. Question 9- Real Property Question 11 - Torts A landowner executed an instrument in the proper During a comprehensive evaluation of an adult form of a deed, purporting to convey his land to a patient's psychiatric condition, the psychiatrist failed friend. The landowner handed the instrument to the to diagnose the patient's suicidal state. One day after friend, saying, "This is yours, but please do not the misdiagnosis, the patient committed suicide. The record it until after I am dead. Otherwise, it will cause me no end of patient's father, immediately after having been told of days later, the trouble with my relatives." Two his son's suicide, suffered severe emotional distress, the deed to landowner asked the friend to return which resulted in a stroke. The patient's father was him should devise the because he had decided that he not present at his son's appointment with the than by deed. land to the friend by will rather psychiatrist and did not witness the suicide. The the deed The friend said that he would destroy and a day or so father brought an action against the psychiatrist to landowner that the later falsely told the recover for his severe emotional distress and the months ago, the deed had been destroyed. Six resulting stroke. a will, landowner, who had never executed died intestate, survived by a daughter as his sole heir at law. Will the father prevail? The day after the landowners death, MBE RELEAsth Qi FEsTiONS 33 MBE MIXED PRACTICE 2 EFTA00811442 MBE MIXED PRACTICE 2 AMERIBAR BAR REVIEW • terminated for this reason. sustain a physical (A) No, because the father did not employment, which of the impact. ional duty In a suit to reinstate her , because the psychiatrists profess LEAST support for the (B) No following claims provides the suffered by the did not extend to the harms woman? patient's father. was a member of the her unconstitutionally (C) Yes, because the father (A) The state's firing of ech. patient's immediate family. abridged her freedom of spe trist reasonably could unc ons titutionally denied (D) Yes, because the psychia (B) The state's firin g of her state citizenship is would result in of have foreseen that a misdiagnos her a privilege or immunity res ulting emotional the patient's suicide and the protected by Article IV. distress of the patient's fath er. violated the supremacy (C) The state's firing of her e it interfered with clause of Article VI, becaus s. Question 12 - Evidence the enforcement of federal rule of her with out affording her an (D) The state's firing an unconstitutional a car accident at an opportunity for a hearing is In a civil trial arising from on direct that he ess. intersection, the plaintiff testified denial of procedural due proc rsection. On cross- came to a full stop at the inte lawyer asked whether examination, the defendant's Question I4 - Contracts exercising due care the plaintiff claimed that he was at the time, and the plainti ff rep lied that he was tor entered into a written A landowner and a contrac tor agreed to build a bar conference, the driving carefully. At a side contract under which the contrac sidewalk for the mission to ask the cent defendant's lawyer sought per building and pave an adja ction accidents in the 0,000. Later, while plaintiff about two prior interse landowner at a pric e of $20 d traffic citations for the landowner and the last 12 months where he receive construction was proceeding, failing to stop at stop signs. The plaintiff's lawyer l modification under contractor entered into an ora obli gated to pave the objected. which the contractor was not to $200,000 upon itled sidewalk, but still would be ent Should the court allow defense counsel to ask the completed the building. completion. The contractor plaintiff about the two prior inci dents? ions with his landscaper, The landowner, after discuss tor pave the adjacent demanded that the contrac failing to stop on the . (A) No, because improperly r on the plaintiffs sidewalk. The contractor refused recent occasions does not bea ict his testimony in contract? veracity and does not contrad Has the contractor breached the this case. ication that failing to dification was in good (B) No, because there is no ind (A) No, because the oral mo stop on the recent occ asio ns led to convictions. faith and therefore enf orc eab le. failing to stop on the har ge of a contractual (C) Yes, because improperly the plaintiffs (B) Yes, because a disc recent occasions bears on obligation must be in writing. have stopped in ence rule bars proof credibility, since he claims to (C) Yes, because the parol evid this case. of the oral modification. ing to stop on the consideration for the (D) Yes, because improperly fail ict the plaintiffs (D) Yes, because there was no trad duty to pave the recent occasions tends to con discharge of the contractor's lly at the time he claim that he was driving carefu sidewalk. collided with the defenda nt. Question IS - Real Property Law Question 13 - Constitutional by quitclaim deed to A landowner conveyed his land employees may be tenants in fee simple." According to a state law, state his daughter and son "as joint woman who was both sufficient to create a fired only "for good cause." A The language of the deed was ee of the state was right of survivorship, a resident and an employ common-law joint tenancy with ground that she had The daughter then summarily fired on the sole which is unmodified by statute. that the state was not her interest in the land notified federal officials the administration duly executed a will devising will gov ern ing duly executed a following federal rules to a friend. Then the son son programs on which to a cousin. The of certain federally funded state devising his interest in the land eve r woman's request for . Neithe r had she worked. The state denied the died, and later the daughter died cou sin the charge. There is nd and the a hearing to allow her to contest married. The daughter's frie employee having been no record of any other state CE 2 MBE MIXED PRACTI 34 •• or act racy° nIIESTIONS EFTA00811443 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 survived. How is the federal court likely to rule in this action? After both wills have been duly probated, who owns (A) It will set aside the conviction, because the jury what interest in the land? was composed of fewer than 12 members. (B) It will set aside the conviction, because the 6- (A) The cousin owns the fee simple. person jury verdict was not unanimous. (B) The daughter's friend and the cousin own equal (C) It will set aside the conviction for both reasons. shares as joint tenants with right of survivorship. (D) It will uphold the conviction. (C) The daughters friend and the cousin own equal shares as tenants in common. Question IS - Real Property (D) The daughter's friend owns the fee simple. A grantor executed an instrument in the proper form Question 16 - Evidence of a warranty deed purporting to convey a tract of land to his church. The granting clause of the A defendant was charged with burglary. At trial, a instrument ran to the church "and its successors police officer testified that, after the defendant was forever, so long as the premises are used for church arrested and agreed to answer questions, the officer purposes." The church took possession of the land interrogated him with a stenographer present, but that and used it as its site of worship for many years. he could not recall what the defendant had said. The Subsequently, the church wanted to relocate and prosecutor presented the officer with a photocopy of entered into a valid written contract to sell the land to the stenographic transcript of the interrogation. The a buyer for a substantial price. The buyer wanted to officer, after looking at it, was prepared to testify that use the land as a site for business activities and he recalled that the defendant admitted to being in the objected to the church's title. The contract contained area of the burglary. The defendant objected to the no provision relating to the quality of title the church officers testimony on the ground that it violated the was bound to convey. There is no applicable statute. "original document" rule (also known as the "best When the buyer refused to close, the church sued the evidence" rule). buyer for specific performance and properly joined the grantor as a party. Should the officer's testimony concerning the defendant's recorded confession be admitted? Is the church likely to prevail? (A) No, because a photocopy cannot be used without (A) No, because the grantor's interest prevents the a showing that the original is unavailable. church's title from being marketable. (B) No, because the stenographer has not testified to (B) No, because the quoted provision is a valid the accuracy of the transcript. restrictive covenant. (C) Yes, because a photocopy is a duplicate of the (C) Yes, because a charitable trust to support religion original. will attach to the proceeds of the sale. (D) Yes, because the prosecutor is not attempting to (D) Yes, because the grantor cannot derogate from prove the contents of the document. his warranty to the church. Question 17 - Criminal Law and Procedure Question 19 - Evidence A state legislature passed a statute providing that In a civil trial for fraud arising from a real estate juries in criminal trials were to consist of 6 rather transaction, the defendant claimed not to have been than 12 jurors, and providing that jury verdicts did involved in the transaction. The plaintiff called a not have to be unanimous but could be based on 5 witness to testify concerning the defendant's votes out of 6 jurors. A defendant was tried for involvement in the fraudulent scheme, but to the murder. Over his objection, he was tried by a jury plaintiffs surprise the witness testified that the composed of 6 jurors. The jurors a vote of 5 to I found him guilty by defendant was not involved, and denied making any and, over the defendant's objection, statement to the contrary. The plaintiff now calls a the court entered a was affirmed on judgment of conviction, which second witness to testify that the first witness had appeal by the state supreme court. stated, while the two were having a dinner The defendant seeks to habeas corpus action overturn his conviction in a conversation, that the defendant was involved in the in federal court, claiming his fraudulent transaction. constitutional rights were verdict that was violated by allowing a jury jury composed not unanimous and by allowing a Is the testimony of the second witness admissible? of fewer than 12 members. • "BE RELEASED QUM-Ms 35 MBE MIXED PRACTICE 2 EFTA00811444 MBE MLXED PRACTICE 2 AMERIBAR BAR REVIEW funds that the party's legislature, and the university had no other (A) No, because a party cannot impeach could be used to pay them. own witness. within any (B) No, because it is hearsay not If the professors challenge the cons titutionality of the likely to uphold exception. ss. appropriations provision, is the court (C) Yes, but only to impeach the first witne the provision? and prove the to (D) Yes, to impeach the first witness defendant's involvement. the imposition of a (A) No, because it amounts to punishment by the legis latur e without trial. Question 20 - Torts was base d on conduct the (B) No, because it enacted. parked on a professors engaged in before it was A car owner washed her car while it was (C) Yes, because the Eleventh Amendm ent gives the tion of a statu te that prohibits to appropriate public street, in viola g rush state legislature plenary power vehic les on publ ic stree ts durin that it deem s most the washing of the state funds in the manner expe dite hours. The statute was enacted only to and conducive to the welfare of its peop le. a sudd en flow of automobile traffic. Due to Clause I of the Constitution. e water unexpected cold snap, the car owner's wast (D) Yes, because the full faith and credit clause pede stria n slipp ed on ision strictly formed a puddle that froze. A strian requires the cour t to enfo rce the prov her leg. The pede the frozen puddle and broke trial, according to its terms. ver for her injur y. At sued the car owner to reco to the pede stria n offer ed as edure the only evidence n that she Question 22- Criminal Law and Proc negligence was the car owner's admissio statu te. At the conc lusio n of the dealing was had violated the verd ict. Police officers received a tip that drug proofs, both parties moved for a directed occurring at a certain ground-fl oor dupl ex apartment. out the apar tmen t. The They decided to stake people How should the trial judge proceed? stakeout revealed that a sign ifica nt num ber of ds of time and case to the visited the apartment for short perio (A) Deny both motions and submit the then left. A man exited the apartmen t and started to on the facts , the jury may infer the man and, jury, because, walk briskly away. The officers grabbed that the car owner was negligent. when he struggled, wrestled him to the grou nd. They case to the (B) Deny both motions and submit the searched him and found a bag of hero in in one of his ider the statutory jury, because the jury may cons pockets. After discovering the hero in on the man , the violation as evidence that the car own er was apar tmen t. They knoc ked police decided to enter the an who negligent open ed by the wom because the on the door, which was (C) Grant the car owner's motion, lived there. The police asked if they could come d to offer adeq uate evidence ission to do pedestrian has faile inside, and the woman gave them perm that the car own er was negl igen t. several bags of of the car so. Once inside, the officers observed (D) Grant the pedestrian's motion, because heroin on the living room table . The woman is owner's admitted statutory violation. charged with possession of the hero in foun d on the es pretr ial to supp ress the living room table. She mov Question 21 - Constitutional Law heroin on the ground that it was obta ined by virtu e of an illegal search and seizu re. y drafted a Two tenured professors at a state universit latio n proh ibitin g certa in kinds of new university regu faculty Should the woman's motion be granted? us. Stud ents , staff , and speech on camp the viola ting convicted by campus tribunals of that (A) No, because the tip together with the heroin lties regulation were made subject to pena found in the man's pock et prov ided probable lsions, and included fines, suspensions, expu cause for the search. regu lation was termination of employment. The (B) No, because the woman consente d to the officers' was a grea t deal of public widely unpopular and there ed it. entry. profe ssor s who draft to enter the anger directed toward the (C) Yes, because the officers' decision the state legis latur e appr oved a h of the The following year, for the house was the fruit of an illegal searc in the appr opria tions bill severable provision man. university's university declaring that none of the (D) Yes, because the officers did not inform the ssors, who funding could be used to pay the two profe woman that she could refuse cons ent. . In the past, were specifically named in the provision ys been paid from the professors' salaries had alwa the Question 23 - Real Property univ ersit y by funds appropriated to the 36 MBE MIXED PRACTICE 2 MBE RELEASED QUESTIONS EFTA00811445 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A landowner died, validly devising his land to his trial "the accused shall have the right to confront all wife "for life or until remarriage, then to" their witnesses against him face to face." A defendant was daughter. Shortly after the landowner's death, his convicted in state court of child abuse based on daughter executed an instrument in the proper form testimony from a six-year-old child. The child of a deed, purporting to convey the land to her friend. testified while she was seated behind one-way glass, A year later, the daughter died intestate, with her which allowed the defendant to see the child but did mother, the original landowner's wife, as her sole not allow the child to see the defendant. The heir. The following month, the wife re-married. She defendant appealed to the state supreme court then executed an instrument in the proper form of a claiming that the inability of the witness to see the deed, purporting to convey the land to her new defendant while she testified violated both the United husband as a wedding gift. States Constitution and the state constitution. Without addressing the federal constitutional issue, the state Who now owns what interest in the land? supreme court reversed the defendant's conviction and ordered a new trial. The state supreme court held (A) The daughters friend owns the fee simple. that "the constitution of this state is clear, and it (B) The wife owns the fee simple. requires that while testifying in a criminal trial, a (C) The wife's new husband has a life estate in the witness must be able to see the defendant." The state land for the wife's life, with the remainder in the petitioned the United States Supreme Court for a writ daughter's friend. of certiorari. (D) The wife's new husband owns the fee simple. On which ground should the United States Supreme Question 24 - Contracts Court DENY the state's petition? During negotiations to purchase a used car, a buyer (A) A state may not seek appellate review in the asked a dealer whether the car had ever been in an United States Supreme Court of the reversal of a accident. The dealer replied: "It is a fine car and has criminal conviction by its own supreme court. been thoroughly inspected and comes with a (B) The decision of the state supreme court was certificate of assured quality. Feel free to have the car based on an adequate and independent state inspected by your own mechanic." In actuality, the ground. car had been in an accident and the dealer had (C) The Sixth Amendment to the United States repaired and repainted the car, successfully Constitution does not require that a witness concealing evidence of the accident. The buyer against a criminal defendant be able to see the declined to have the car inspected by his own defendant while the witness testifies. mechanic, explaining that he would rely on the (D) The state supreme court's decision requires a dealers certificate of assured quality. At no time did new trial, and therefore it is not a final judgment. the dealer disclose that the car had previously been in an accident. The parties then signed a contract of Question 26 - Criminal Law and Procedure sale. After the car was delivered and paid for, the buyer learned about the car's involvement in a major A husband and wife took their I2-year-old son to a accident. political rally to hear a controversial United States senator speak. The speaker was late, and the wife If the buyer sues the dealer to rescind the transaction, stepped outside to smoke a cigarette. While there, she is the buyer likely to succeed? saw a man placing what she believed to be a bomb against a wall at the back of the building. She went (A) No, because the buyer had the opportunity to back inside and told her husband what she had seen. have the car inspected by his own mechanic and Without alerting anyone, they took their son and left. declined to do so. Some 20 minutes later, the bomb exploded, killing (II) No. because the dealer did not affirmatively eight persons and injuring 50. In the jurisdiction, assert that the car had not been in (C) Yes, because the an accident. murder in the first degree is defined as an intentional (D) Yes, because contract was unconscionable. homicide committed with premeditation and the dealer's statement was deliberation; murder in the second degree is defined intentionally misleading and the concealed evidence of the dealer had as all other murder at common law; and manslaughter accident. is defined as either a homicide in the heat of passion Question 25 - arising from adequate provocation or a homicide Constitutional Law caused by gross negligence or reckless indifference to A state consequence. constitution provides that in every criminal MBE RELEASP.D QUESTIONS 37 MBE MIXED PRACTICE 2 EFTA00811446 MBE MIXED PRACTICE 2 AMEMBAR BAR REVIEW ir house on the day the • defendant wore as he left the persons, what crime, if her description to match As to the deaths of the eight bank was robbed, expecting the robbery. Both the any, did the wife commit? that of eyewitnesses to ct to her testifying against defendant and his wife obje (A) Manslaughter. the defendant. (B) Murder in the first degree. to testify? (C) Murder in the second degree. Should the wife be required (D) No crime. ndant has a privilege to ure (A) No, because the defe ng against him in a Question 27 - Criminal Law and Proced prevent his wife from testifyi criminal case. necklace that belonged to a privilege not to testify A woman decided to steal a (B) No, because the wife has the neighbor kept the a crim inal case. her neighbor. She knew where against her husband in l privilege does not bee n in the neighbor's inte rspo usa necklace because she had (C) Yes, because the n the neighbor had house on many occasions whe apply in criminal cases. it away in a jewelry wife's viewing of the taken off the necklace and put (D) Yes, because the ht, the woman went to not a confidential box in the bathroom. One nig defendant's clothing was hbor was away and the the neighbor's house. The neig communication. opened the bathroom house was dark. The woman on the counter, and window, saw the jewelry box Question 30 - Contracts cleared the window started to climb inside. As her leg let out a loud screech. t $1,000 to a debtor under sill, the neighbor's cat On January 5, a creditor len k outside and fled. tor to repay the loan at Terrified, the woman bolted bac a contract calling for the deb payable on the first day of the rate of $100 per month The crimes below are listed in descending order of 1, at the debtor's request, each month. On February most serious crime payment on February 5. seriousness. What is the the creditor agreed to permit ested a similar time committed by the woman? On March 1, the debtor requ lied, "Don't bother me extension and the creditor rep of payment to the date (A) Burglary, each month. Just change the must now make the (B) Attempted burglary. fifth of the month. But you The debtor said, (C) Attempted larceny. payments by cashier's check." rch 5 and April 5. on Ma (D) No crime. "Okay," and made payments cre dito r sold the loan contract to a On April 6, the k about the agreement Question 28 - Torts bank, but did not tell the ban fifth of the month. On permitting payments on the d revolver at her guest, debtor: "Your debt to A host pointed an unloade April 6, the bank wrote to the guest knew that the igne d to us. We hereby threatening to shoot him. The (the creditor) has been ass that the ammunition for must be made on the revolver was not loaded, and inform you that all payments ed basement closet, the revolver was stored in a lock first day of the month." were then standing. two stories below where the two st against the host for st that the payment date In an action brought by the gue Can the debtor justifiably insi is the fifth of each ents assault, will the guest prevail? for the rest of the installm month? not intend to shoot her (A) No, because the host did t modification is not guest. (A) No, because a contrac did not put her guest in had no knowledge of (B) No, because the host binding on an assignee who contact. apprehension of an imminent the modification. nition was aressible to the creditor waived the (C) Yes, because the am mu (B) No, because although first of the month, the host. condition of payment on the atened her guest with a (D) Yes, because the host thre the bank reinstated it. h the creditor waived the revolver. (C) Yes, because althoug first of the month, condition of payment on the ign to the bank his right Question 29 - Evidence the creditor could not ass to reinstate that condition. guilty to a federal r could assign to the A defendant has pleaded not (D) Yes, because the credito creditor had in the cipal issue at trial is charge of bank robbery. The prin secutor calls the bank only those rights the pro ignment. the identity of the robber. The contract at the time of the ass tes tify to the clothing that the defendant's wife to CE 2 • MBE MIXED PRACTI 38 MBE RELEASED QUESTIONS EFTA00811447 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • Question 31 - Contracts (B) Grant the construction company's motion, because no one could have foreseen that the A buyer entered into a written contract to purchase failure to place warning lights could result in the from a seller 1,000 sets of specially manufactured loss of a cargo of valuable goods. ball bearings of a nonstandard dimension for a price (C) Grant the construction company's motion, of $10 per set. The seller correctly calculated that it because the criminal acts of third persons were a would cost $8 to manufacture each set. Delivery was superseding cause of the loss. scheduled for 60 days later. Fifty-five days later, after (D) Grant the delivery company's motion, because the seller had completed production of the 1,000 sets, but for the construction company's actions, the the buyer abandoned the project requiring use of the goods would not have been stolen. specially manufactured ball bearings and repudiated the contract with the seller. After notifying the buyer Question 33 - Constitutional Law of his intention to resell, the seller sold the 1,000 sets of ball bearings to a salvage company for $2 per set. Several public high school students asked the The seller sued the buyer for damages. superintendent of the public school district whether the minister of a local church could deliver an What damages should the court award to the seller? interdenominational prayer at their graduation ceremony in the school auditorium. None of the (A) $2 per set, representing the difference between students or their guests at graduation would be the cost of production and the price the buyer required to pray while the minister delivered the agreed to pay. prayer. (B) $6 per set, representing the difference between the cost of manufacture and the salvage price. Would the minister's delivery of such a prayer at the (C) $8 per set, representing the lost profits plus the public high school graduation be constitutional? unrecovered cost of production. (D) Nominal damages, as the seller failed to resell (A) No, because it would be an unconstitutional the goods by public auction. establishment of religion. (B) No, because it would deny attendees who are not Question 32 - Torts members of the minister's denomination the right to freely exercise their religion. A construction company was digging a trench for a (C) Yes, because none of the students or their guests new sewer line in a street in a high-crime would be required to pray at the graduation neighborhood. During the course of the construction, ceremony. there had been many thefts of tools and equipment (D) Yes, because the idea for the prayer originated from the construction area. One night, the with the students and not with school officials. construction company's employees neglected to place warning lights around the trench. A delivery truck Question 34 - Evidence drove into the trench and broke an axle. While the delivery driver was looking for a telephone to At the defendant's trial for a gang-related murder, the summon a tow truck, thieves broke into the delivery prosecution introduced, as former testimony, a truck and stole $350,000 worth of goods. The statement by a gang member who testified against the delivery company sued the construction company to defendant at a preliminary hearing and has now recover for the $350,000 loss and for $1,500 worth of invoked his privilege against self-incrimination. damage to its truck. The construction company stipulated that it was negligent in failing to place If the defendant now seeks to impeach the credibility Warning lights around the trench, and of the gang member, which of the following is the for damage to the truck, admits liability but denies liability for the court most likely to admit? loss of the goods. On cross-motions for (A) Evidence that the gang member had three should the court rule? summary judgment, how misdemeanor convictions for assault. (B) Testimony by a psychologist that persons with (A) Deny both the gang member's background have a tendency motions, because there is evidence to to fabricate. support a finding that the construction company (C) Testimony by a witness that at the time the gang should have realized create an that its negligence could member testified, he was challenging the a crime opportunity for a third par ty to commit defendant's leadership role in the gang. (D) Testimony by a witness that the gang member is MBE Rkkk.AsEn QUESTIONS 39 MBE MIXED PRACTICE 2 EFTA00811448 ACTICE 2 MBE MIXED PR • AMERIBAR BAR REVIEW s directly to law en for ce me nt, (D) The rule relate rather tha n leg isl ati ve a cocaine dealer. which is an executive t ne ed sp ec ific it does no function, and hence Law and Procedure congressiona l au tho riz ation. Question 35 - Criminal At the ed with manslaughter. Question 37 - Evidenc e A defendant was charg ss ed the the magistrate dismi preliminary hearing, ide nc e wa s with aggravated assault . At ds that the ev A defendant was charged t the defendant beat her charge on the groun ug ht the ca se tha cutor then bro insufficient. The prose ter hearing the evidence trial, the victim testified said no t asked about anything before a grand jury. Af ed to savagely, but she was the n ca lle d a tor, the grand jury refus The prosecutor presented by the pro se cu a few during the incident. ating sto pp ed , the The prosecutor waited when the be return an indictment. neled witness to testify is let [th e de fen da nt) nd jury had been impa victim screamed: dying-don't months until a new gra e that grand jury, which and brought the case be for th get away with it!" an ind ict ment ch arging the defendant wi the returned dant moves to dis mi ss the the witness concerning manslaughter. The defen Is the testimony of rdy grounds. ssible? indictment on double jeo pa victim's statement admi n any is hearsay not withi Should the motion be gra nted? (A) No, because it exception. t the rdy had not attached. tim was not asked abou (A) No, because jeopa or (B) No, because the vic has been no conviction statement. (B) No, because there t under belief of impe nding acquittal. the (C) Yes, as a statemen tim did not die. y proceeding after death, even though the vic (C) Yes, because an would violate double era e. nc preliminary hearing (D) Yes, as an excited utt jeopardy. cond ing the case before the se Question 38 - Contrac ts (D) Yes, because bring of do ub le jeo pa rd y. grand jury was a violation a permanent full-time job as A bakery offered a chef 0 pe r mo nth . Th e tional Law y of $2,00 Question 36 - Constitu a pastry chef at a salar rk in position and to begin wo ef tes chef agreed to take the pli ca tio n, the ch e directing the United Sta two weeks. In her emplo ymen t ap Congress passed a statut ency, to issue regulations was seeking a perman en t job. Forest Service, a federa l ag d to had indicated that she ba ke ry, a federal public lands an was hired by the to control campfire s on late One week after the chef a res tau ran t penalties for tho se wh o vio ef a position as establish a schedule of t the hotel offered the ch nth . Th e ch ef pr ov ide d tha $2,500 a mo the new regulations. Th e statut e manager at a salary of e ns should "reduce, to the ptl y no tified the bakery that sh Forest Service regulatio tha t accepted and prom ke ry. sible, all potential hazards e would not report for wo rk at the ba maximum extent fea ds ." Th Forest Service lan arise from campfires on ulations and the schedule evail in a lawsuit again st the Forest Service issued the reg ns Is the bakery likely to pr Congress. The regulatio chef for breach of contr act? of penalties directed by do ub lin g of the vides for the include a rule that pro if the contract for perman ent ge nt or prohibited use of fire (A) No, because a fine for any negli erpreted to me an the user is intoxicated by alc ohol or dru gs . employment would be inte. y tim chef could leave at an th the is the best argument for ca us e the po sit ion the chef took wi Which of the following Se rvi ce 's (8 ) No , be lly comparable to the on e nality of the Forest hotel was not substantia sustaining the constitutio th the bakery. rule providing for the fines ? she had agreed to take wi of a chefs acceptance ich (C) Yes, because the ant that she ag ree d to nch of government, of wh permanent position me (A) The executive bra ere nt ru le- a reasonable tim e. the Forest Service is pa n, ha s inh leave the bakery only after blic lan ds . ch efs fai lur e to give the bakery making authority over pu (D) Yes, because the lary offered by the hotel issue d pu rsu an t to a valid exercise of a chance to match the sa (B) The rule is delegate rule-making ht of first refusal. Congress's power to breached the implied rig cies. authority to federal agen by a compelling erty (C) The rule is jus tified t Question 39- Real Prop in safeguarding fores governmental interest resources. -• PR AC TI CE; MBE MIXED • 40 ern nf irsTioNs EFTA00811449 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A creditor received a valid judgment against a debtor (C) Yes, because the applicant relied on the and promptly and properly filed the judgment in the personnel director's misrepresentations about the county. Two years later, the debtor purchased land in investment company. the county and promptly and properly recorded the (D) Yes, because the personnel director should have warranty deed to it. Subsequently, the debtor foreseen that his misrepresentations would cause borrowed $30,000 from his aunt, signing a the applicant to be upset. promissory note for that amount, which note was secured by a mortgage on the land. The mortgage Question 4! - Constitutional Law was promptly and properly recorded. The aunt failed to make a title search before making the loan. The A city zoning ordinance requires anyone who debtor made no payment to the creditor and defaulted proposes to operate a group home to obtain a special on the mortgage loan from his aunt. A valid judicial use permit from the city zoning board. The zoning foreclosure proceeding was held, in which the ordinance defines a group home as a residence in creditor, the aunt, and the debtor were named parties. which four or more unrelated adults reside. An A dispute arose as to which lien has priority. A individual applied for a special use permit to operate statute of the jurisdiction provides: "Any judgment a group home for convicts during their transition properly filed shall, for 10 years from filing, be a lien from serving prison sentences to their release on on the real property then owned or subsequently parole. Although the proposed group home met all of acquired by any person against whom the judgment is the requirements for the special use permit, the rendered." A second statute of the jurisdiction zoning board denied the individual's application provides: "No unrecorded conveyance or mortgage of because of the nature of the proposed use. The real property shall be good against subsequent individual sued the zoning board seeking declaratory purchasers for value without notice, who shall first and injunctive relief on constitutional grounds. record." Which of the following best states the appropriate Who has the prior lien? burden of persuasion in this action? (A) The aunt, because a judgment lien is subordinate (A) Because housing is a fundamental right, the to a mortgage lien. zoning board must demonstrate that denial of the (B) The aunt, because she is a mortgagee under a permit is necessary to serve a compelling state purchase money mortgage. interest. (C) The creditor, because its judgment was filed first. (B) Because the zoning board's action has the effect (D) The creditor, because the aunt had a duty to of discriminating against a quasi-suspect class in make a title search of the property. regard to a basic subsistence right, the zoning board must demonstrate that the denial of the Question 40 - Torts permit is substantially related to an important state interest. The personnel director of an investment company (C) Because the zoning board's action invidiously told a job applicant during an interview that the discriminates against a suspect class, the zoning company was worth millions of dollars and that the board must demonstrate that denial of the permit company's portfolio would triple in the next several is necessary to serve a compelling state interest. months. The applicant was very excited about the (D) Because the zoning board's action is in the nature company's prospects and accepted an offer to work of an economic or social welfare regulation, the for the company. Two in the newspaper days later, the applicant read individual seeking the permit must demonstrate that the investment company had that the denial of the permit is not rationally tiled for bankruptcy reorganization. As a result of reading this news, the related to a legitimate state interest. applicant suffered severe emotional distress but he immediately found another Question 42 - Criminal Law and Procedure comparable position. Is the State troopers lawfully stopped a driver on the applicant likely to prevail in his action negligent for turnpike for exceeding the speed limit by four miles misrepresentation? per hour. One trooper approached the car to warn the (A) No, driver to drive within the speed limit. The other because the applicant did physical injury or not suffer any trooper remained in the patrol car and ran a computer (B) No. because pecuniary loss. check of the car's license number. The computer the personnel directors was Purely statement check indicated that there was an outstanding warrant speculative. for the drivers arrest for unpaid traffic tickets. The MBE REI.E.Ast Qt ES TIONS y. 41 MBE MIXED PRACTICE 2 4 ra EFTA00811450 2 MBE MIXED PRACTICE AMERIBAR BAR REVIEW e admissible? • nt, Is the plumber's respons driver based on the warra troopers then arrested the ive r. Du rin g the offer in compromise. and they proceeded to se arch the dr e of (A) No, because it is an hearsay not within any ve red a package of heroin in on (B) No, because it is search, they disco s lea rne d tha t the ter, it wa exception. the driver's pockets. La da ys edial measure. anding traffic tickets 10 s, as a subsequent rem driver had paid the outst bu t the (C ) Ye the plumber's fault. nt had been quashed, (D) Yes, as evidence of earlier and that the warra uter, failed to update the comp clerk of the court had din g. operty warrant as outstan Question 45 - Real Pr which continued to list the cing a th unlawful possession of a tract of land, finan The driver was charged wi d a motion to suppress An investor purchased loa n fro m a ase price by a heroin. Her attorney ha s file large part of the purch secured by a mortgage. The was the use of the he ro in as ev idence. business partner that the tallment payments on investor made the ins several years. Then the for Should the motion be gra nted? mortgage regularly bject ed a ne ighbor to buy the land, su d investor persuad ly ree ag opers could reasonably rely partner. They express (A) No, because the tro to the mortgage to his to pay and the se arc h was not assume and agree on the computer report that the neighbor would inv es tor's the partner. The incident to arrest. the investors debt to du e-o n-s ale may lawfully search a rtner contained a (B) No, because troopers mortgage to the pa /he r int ere st ffic stop. agor transfers his driver incident to a valid tra est for the traffic clause stating, "If Mortg rtg ag ee firs t nsent of Mo (C) Yes, because there was no arr without the written co ee's option the entire est could be made on obtained, then at Mo rtgag violation and no lawful arr the debt secured by this ce of the basis of the warrant. e or principal balan me immediately due and was no probable caus Mortgage shall beco (D) Yes, because there believe tha t the dr iver thout seeking his pa rtn er's reasonable suspicion to payable." However, wi nveyed the land to the co possessed drugs. consent, the investor ,, r, the de ed sta tin g in pertinent part " neighbo an d giv ing to (the partner]," Question 43 - Contracts subject to a mortgage age. ing da ta related to the mortg of details and record lan d an d ma de r $1,500. The statute The neighbor took poss ession of the A debtor owed a lende e de bto r yments, wh ich the pa rtn er ery on the claim. Th several mortgage pa limitations barred recov pa y yo u er the ne igh bo r no r the ting, "I promise to accepted. Now, howeve r, neith wrote to the lender, sta der t three mortgage paymen ts. gu ish the debt." The len s ma de the las $500 if you will extin investor ha neighbor for the am ou nt of agreed. The partner has sued the ts. 00 the delinquent paymen to pay the lender $5 Is the debtor's promise om should the court render enforceable? In this action, for wh to judgment? r made no promise not (A) No, because the debto tions as a defense. use she did not assume and plead the statute of limita the (A) The neighbor, beca s mortgage debt. was no consideration for agree to pay the investor (B) No, because there use e is not in privi sh ty of debtor's promise. d a (B) The neighbor, beca btor's promise provide estate with the partner. (C) Yes, because the de use the investor's deed to the benefit to the lender. rt of (C) The partner, beca us e. btor's promise to pay pa due-on-sale cla (13) Yes, because the de neighbor violated the ty of bt is enforceable. er, be ca us e the neighbor is in privi the barred antecedent de (D ) Th e pa rtn estate with the partner. e Question 44 - Evidenc tional Law lting Question 46 - Constitu mber for damages resu A homeowner sued a plu tal lat ion of land in the mountain foothills edly faulty ins A purchaser bought from the plumber's alleg ing flo od ing . At town and planned to build a nt, caus just outside a resort water pipes in her baseme pared to testify that nt the re. Soon the rea fte r, the ow ne r wa s pre housing de ve lop me pectedly trial, the home f d was located unex t de tec ted the flooding, she turned of coun ty in wh ich the lan prohibited when she firs en cy t, for the first time, mountain plumber at his emerg re gu lat ion tha the water and called the me ad op ted a veral foothill and mber responded, "('II co all construction in se number for help. The plu installation for free." by tomorrow and redo the • E2 MBE MIXED PRACTIC 42 _ Cuit- MIMS EFTA00811451 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 areas, including the area of the purchaser's property. the woman's conduct in downloading photographs The purpose of the county's regulation was "to from the man's computer violated the interception conserve for future generations the unique natural statute. wildlife and plant habitats" in the mountain areas. Since the adoption of the regulation, the purchaser How should the court rule on the defendant's motion has been unable to lease or sell the property at any to suppress? price. Several realtors have advised the purchaser that the property is now worthless. The purchaser sued the (A) Deny the motion as to all photographs. county, claiming that the regulation has taken the (B) Grant the motion as to all photographs, because purchaser's property and that the county therefore the woman acted without probable cause. owes the purchaser just compensation. (C) Grant the motion as to all photographs, because the woman violated the federal interception Is the court likely to rule in favor of the purchaser? statute. (D) Grant the motion only as to the second set of (A) No, because the county did not take title to the photographs. property from the purchaser. (B) No, because the regulation has not caused or Question 48 - Contracts authorized any uninvited physical invasion or intrusion onto the property. A car dealer owed a bank $10,000, due on June I. (C) Yes, because the conservation objective of the The car dealer subsequently sold an automobile to a county ordinance is not sufficiently compelling buyer at a price of $10,000, payable at $1,000 per to justify the substantial diminution in the month beginning on June 1. The car dealer then property value. asked the bank whether the bank would accept (D) Yes, because the effect of the county's regulation payments of $1,000 per month for 10 months is to deny the purchaser's investment-backed beginning June 1, without interest, in payment of the expectation and essentially all economically debt. The bank agreed to that arrangement and the car beneficial use of the property. dealer then directed the buyer to make the payments to the bank. When the buyer tendered the first Question 47 - Criminal Law and Procedure payment to the bank, the bank refused the payment, asserting that it would accept payment only from the A woman who is a computer expert decided to car dealer. On June 2, the bank demanded that the car dedicate herself to exposing persons who trafficked dealer pay the debt in full immediately. The car in child pornography. She posted a number of dealer refused to pay and the bank sued the car dealer sexually oriented photographs on her web site. The to recover the $10,000. file for each photograph contained an embedded Trojan horse program (a program that would allow In this suit, which of the following arguments best the woman to enter the computer of anyone who supports the bank's claim for immediate payment? downloaded the photograph). A man downloaded one of those photographs onto his personal computer. (A) The agreement to extend the time for payment Using the embedded program, the woman entered the was not in writing. man's computer and found a file containing (B) The car dealer could not delegate its duty to pay a pornographic photograph of a child. She copied the to the buyer. file and turned it over to a federal law enforcement (C) The car dealer gave no consideration for the agency. A federal agent told her that a successful agreement to extend the time of payment. prosecution would require more than one photograph (D) The car dealers conduct was an attempted and offered her a monetary reward for additional novation that the bank could reject. photographs leading to the man's conviction. woman entered the The this time she defendant's computer again, and Question 49 - Evidence found hundreds of child pornography photographs, which she turned agency. The man is over to the federal A defendant was charged in federal court with selling violating federal child charged with multiple counts of a controlled substance (heroin) in interstate moved to suppress the pornography statutes. He has photographs that the woman commerce. At trial, the prosecutor introduced discovered on his evidence that the defendant obtained the substance both the Fourth computer. The motion is based on from a supplier in Kansas City and delivered it in Amendment and a federal statute Chicago. The defendant denied that the substance in withoutinpgintiessreioenption of electronic communication question was heroin, but he introduced no contrary enn • The parties have stipulated that evidence on the issue of transportation. MBE RELEASED QUESTIONS 43 MBE MIXED PRACTICE 2 EFTA00811452 TICE 2 MBE MIXED PRAC VIEW from her. AMERIBAR BAR RE d th e ca r as having been stolen recogn ize ty is stolen ns regarding w, a person whose proper llowing instructio Unde r St ate B la ssessor is an Which of the fo e judge legitimately give the it, ev en if the current po th m ay re cla im the man in a judicial notice may rc ha se r. The woman sued inn oc en t pu man defended, jury? claim the car. The State B court to re e law of State e defendant obtained the drugs d good title under th fin d th at th claiming that he ha t applied State B (A) "I f yo u delivered them to Ch ld in icago, I A. Nevertheless , the State B cour d not in Kansas City and so an pr ev ailed. The man di at the substance wa m s e wo law, and th n of the instruct you to find th " e sh er iff ga ve the woman possessio n. an interstate transactio ndant obtained the drugs appeal. Th the car to l m on th s la te r, the woman drove th e de fe car. Se ve ra against the (B) "If you fin d th at livered them to Chica t go, e m an br ought a new suit in Kansas City and de State A. Th t in the prior rsuasion is on th e de fe nd an m an , cla im in g th at the State B cour w, which then the burden of pe e transaction was not wo applied the State A la to establish that th suit should have rs . Th e wo man appeared purchase interstate." protected innocent d the drugs iss the suit. "I f yo u fin d th at th e defendant obtaine go, and moved to dism (C) livered them to Chica in Kansas City and de are not required to, find ate A court do? u then you may, but yo interstate in nature." What should the St n wa s s, because that the tra ns ac tio ere is a presumptio n that Ap pl y th e fe de ra l law of sale of good th at th (A) ce. (D) "I inst ru ct yo u int er state in interstate commer the substance was sold in an that the car has moved , be ca us e th e car is sio n on e A law transaction, but the burden of pers ua (B) Apply the Stat State A. issue is still on the gove rnment." currently located in court must because the State A (C) Dismiss the suit, credit to the State B judgment. give full faith and the car Question 50 - Torts e th e ca se to fe deral court, because (D) Rem ov erefore partment of int er sta te commerce, and th r in the pediatrics de ha s m ov ed in An associate professo re He asked a . the case raises a fe deral question. ol was denied tenu a local medical scho g organization to repr esent uc at ion lo bb yin cision national ed have the tenure de l Property hi s ef fo rts to nization Question 52 - Rea him in a letter from the orga edical se to ct for the sale revers ed . In re sp on the m ser signed a contra behalf, the dean of truthfully A seller and a purcha e. The contract required a on the professor's ng us organizatio n ex pl ai ni of a 60-year-old ho ven at closing. The contract school wrote to the because of gi d been denied tenure patients. warranty de ed to be use, and that the profes so r ha rm er in g th e condition of the ho ived a abused two of his fo was sil en t re ga rd r rece reports that he had investigation, t ask. The purchase r, afte r a th or ou gh the purchaser did no l covenants of title at the Several months late e professor al proven false and th warranty deed with ptly recorded the deed. the allegations were had remained working at the pr om was granted tenure. He closing and e closing, the ll pa y during the tenure decision pr ox im at el y on e month after th e basement fu Ap medica l sc ho ol at suffered no pecunia ry harm. stopped working, th e second d th us furnace in the house at th revie w pr oc es s an of leaked so badly th en told of flooded, and the ro r, wh the professor against the dean of occupied. The selle floor could not be rp rised. In a suit for libel by evail? n, was genuinely su will the professor pr the house's conditio the medical school, e libel. ble statute. professor invited th pecuniary There is no applica (A) No, because the d no the seller for dama ges. Will e professor suffere ha s su ed (B) No, because th The pu rc ha se r be successful? loss. investigate the purchaser likely residential Ye s, be ca us e th e de an had a duty to ith a conveyance of (C) ating iL (A) Ye s, be ca us e w plied. the rumor before repe 's defamatory statement rranty of fitness is im e th e de an real property, a wa s of tit le co nt ained in (D) Yes, becaus a w riting. (B) Ye s, ba se d on th e covenant was in the fo rm of r received. the deed the purchase no warranty the seller gave itutional Law (C) No, because ition of the house. Question 51 - Const regarding the cond r. dealer in the doctrine of merge ug ht an an tiq ue car from a car (O) No, because of A man bo ys from de r St at e A la w, a person who bu State A. Un property Question 53 - Torts ale r ac qu ire s go od title, even if the such a de an showed fro m a pr ev ious owner. The m wa s st ol en B. A woman ca r at an an tiq ue car show in State th e PRACTICE 2 MBE MIXED 44 MRR RELEASED QUESTIONS EFTA00811453 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A dentist was anesthetizing a patient's gum before is defined as "knowingly causing the death of another pulling a tooth. Although the dentist used due care, person." Manslaughter is defined as at common law. the hypodermic needle broke off in the patient's gum, Deliberation is defined as "cool reflection for any causing injury. The needle broke because of a length of time, no matter how brief." The defendant, manufacturing defect that the dentist could not have despondent and angry over losing his job, was detected. contemplating suicide. He took his revolver, went to a bar, and drank until he was very intoxicated. A Is the patient likely to recover damages in an action customer on the next stool was telling the bartender against the dentist based on strict products liability how it was necessary for companies to downsize and and malpractice? become more efficient in order to keep the economy strong. The defendant turned to him and said, "Why (A) No, on neither basis. don't you shut the hell up." The customer responded, (B) Yes, based on malpractice, but not on strict "This is a free country and I can say what I want," all products liability. the while shaking his finger at the defendant. The (C) Yes, based on strict products liability, but not on finger-shaking, combined with his already bad malpractice. disposition and the alcohol, enraged the defendant. (D) Yes, on both bases. Trembling with fury, he snatched his revolver from his pocket and shot and killed the customer. Question 54 - Contracts What crime did the defendant commit? A bottling company sent a purchase order to a wholesaler that stated, "Ship 100,000 empty plastic (A) Manslaughter, because there was a reasonable bottles at the posted price." Two days after receipt of explanation for his becoming enraged. this purchase order, the wholesaler shipped the (B) Murder in the first degree, because deliberation bottles and the bottling company accepted delivery of can take place in an instant. them. A week after the bottles were delivered, the (C) Murder in the first degree, because he bottling company received the wholesaler's contemplated taking a human life before acknowledgement form, which included a provision becoming intoxicated. disclaiming consequential damages. After using the (D) Murder in the second degree, because he bottles for two months, the bottling company knowingly caused the customer's death without discovered a defect in the bottles that caused its deliberation. products to leak from them. The bottling company recalled 10,000 of the bottles containing its product, Question 56 - Constitutional Law incurring lost profits of $40,000. A state statute requires, without exception, that a Assuming all appropriate defenses are seasonably woman under the age of 18 notify one of her parents raised, will the bottling company succeed in at least 48 hours before having an abortion. A proper recovering $40,000 in consequential damages from lawsuit challenges the constitutionality of this state the wholesaler? statute. (A) No, because buyers are generally not entitled to In that suit, should the court uphold the recover consequential damages. constitutionality of the statute? (B) No, because the bottling company's acceptance of the goods also constituted an acceptance of (A) No, because a 48-hour waiting period is the terns included in the wholesaler's excessively long and, therefore, it imposes an acknowledgement. undue burden on a woman's right to procure an (C) Yes, because the disclaimer of consequential abortion. damages is unconscionable. (B) No, because the state law does not provide a (0) Yes, because the wholesaler's acknowledgement bypass procedure that would allow a court to did not alter the terms of an existing contract authorize a minor to obtain an abortion without between the parties. prior parental notification under appropriate Question 55 - Criminal circumstances. Law and Procedure (C) Yes, because parents' rights to supervise their A state statute minor daughter's health care outweighs any defines murder in the first degree as individual right she may have. knowingly causing the death of another person after (D) Yes, because such parental notification and deliberation upon the matter." Second-degree murder waiting-period requirements do not impose an MBE RELEASED QUESTIONS 45 MBE MIXED PRACTICE 2 EFTA00811454 E2 MBE MIXED PRACTIC AMERIBAR BAR REVIEW on that marble entry, but I think that there was slush of your right to procure an els were the real cause bills, undue burden on a mi nor's your four-inch-high he al t we'll pay your medic ve." abortion. fall. So let's agree tha t ha m any claims you migh aintiff and you release us fro the pl the offer. At trial, Question 57 - Real Prop erty The plaintiff refused t "there manager's statement tha rtgage seeks to testify to the a hotel, subject to a mo rble entry." A businessman owned bu sin es sman was slush on that ma ed to a bank . Th e securing a debt he ow ga rag e, fin an cin ga t ab out the slush on the floor parking tem en later acquired a nearby cin g Is the sta by a loan from a finan part of the purchase price pa rki ng admissible? a mortgage on the company, secured by an a statement made in the course reafter, the businessm (A) No, because it is tiations. garage. Two years the ich ca us ed ed to the bank, wh of compromise nego defaulted on the loan ow im me dia tel y nager denied that the sli ppery loan to become (B) No, because the ma e of the plaintiffs fall. the full amount of that t to for ec los e due and payable. The bank decided no ins tea d condition was the caus an agent about a matter tim e, bu t ion by tel at tha the mortgage on the ho amount of the defaulted t (C) Yes, as an admiss full within the scop e of his authority. properly sued for the d a rule excluding offer s of nk ob tai ned and properly file ) Ye s, be ca us e the t loan. The ba ount. A statute of the (D tect statements of fac judgment for that am judgment properly filed compromise does not pro gotiations. ise ne jurisdiction provides: "A ny real made during comprom ten ye ars fro m filing, be a lien on the shall, for ire d by any subsequently acqu Question 59 - Torts property then owned or t is ren de red ." the judgmen person against whom ex ce pt the sta tut e intiff sued a decedent's estate There is no other applica ble statute, , In a civil action, the pla injuries she suffered in a foreclosure of mortgages to recover damages for the providing for judicial fic ien cy jud gm en ts. he r ca r and one driven by the ion on de collision between which places no restrict ate rod uc ed un dis pu ted rea fte r, the ba nk brought an appropri decedent. At trial, the plaintiff int ros the s Shortly the ag e on dent's car swerved ac losure of its first mortg evidence that the dece action for judicial forec pa rki ng ay, where it collided with an gment lien on the median of the highw the hotel and of its jud any was joined as a party by the plaintiff. The de cedent's garage. The financing co mp oncoming car driven t, prior to ately counterclaimed for puted evidence tha defendant, and ap pro pri estate introduced undis nt su ffered a pa rki ng ga rag e, dian, the decede age on the foreclosure of its mortg lt. AU procedures were the car's crossing the me e had no reason to foresee, sh which was also in de fau fatal heart attack, which nt had the confirmed foreclos ure the he art attack, the decede properly follow ed an d and that, prior to in a lowing: The net proce ed s of sonable speed and sales resulted in the fol third party were $200,000 been driving at a rea tute makes it a traffic A sta the sale of the hotel to a reasonable manner. rtgage balance. The net ss the me dian of a highway. less tha n the ba nk 's mo e to a fou rth offense to cro the parking garag proceeds of the sale of the fin an cin g om should the court render more than In this case, for wh party were $200,000 ce. company's mortgage balan judgment? nce is 0 surplus arising from the tate, because its evide How should the $200,00 (A) The decedent's es be distributed? undisputed. bid on the parking garage tate, because the plaint iff has (B) The decedent's es facie case of liabil . ity bank. (A) It should be paid to the sinessman. not established a prima a type use the accident was of e of (B) It should be paid to the bu (C) The plaintiff, beca happen in the ab se nc the financing company. that does not ordinarily (C) It should be paid to nk and 's part. equally between the ba negligence on the actor (D) It should be split ca us e the decedent crossed the the financing company. (D) The plaintiff, be statute. median in violation of the e Question 58 - Evidenc tional Law retail Question 60 - Constitu se, the plaintiff sued a In a personal injury ca in the sto re. a state university's law school ined from a fall A group of students at ure of affirmative action in store for injuries she susta ne gli ge ntl y that the store wished to debate the fut bate they The plaintiff alleged du e to sn ow school. For this de school become slippery te an d at tha t law allowed its entryway to aintiff that sta a meeting room in the law the sid ewalk. When the pl requested the use of tracked in from ge r sa id, "I know store's mana threatened to sue, the • PRACTICE 2 MBE MIXED _ 46 ".•nrwrinAIC EFTA00811455 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 that is available on a first-come, first-served basis for most recent sale, when he owned only one unsold lot, extracurricular student use. Speakers presenting all the buyer of Lot I constructed a one-story house on sides of the issue were scheduled to participate. The Lot I and then conveyed Lot I to a doctor. The deed law school administration refused to allow the use of to the doctor contained no reference to any restriction any of its meeting rooms for this purpose solely on the use of Lot I. The doctor applied for an because it believed that "such a debate, even if appropriate certificate of occupancy to enable her to balanced, would have a negative effect on the morale use a part of the house on Lot I as a medical office. of the law school community and might cause The landowner, on behalf of himself as the owner of friction among the students that would disrupt the the unsold lot, and on behalf of the other lot owners, institution's educational mission." sued to enjoin the doctor from carrying out her plans and to impose the quoted restriction on Lot I. Is the refusal of the law school administration to allow the use of its meeting room for this purpose Who is likely to prevail? constitutional? (A) The doctor, because Lot I was conveyed without (A) No, because the law school administration the inclusion of the restrictive covenant in the cannot demonstrate that its action was necessary deed to the first buyer and the subsequent deed to to vindicate a compelling state interest. the doctor. (B) No, because the law school administration (B) The doctor, because zoning ordinances override cannot demonstrate that its action was rationally private restrictive covenants as a matter of public related to a legitimate state interest. policy. (C) Yes, because the law school administration's (C) The landowner, because the doctor, as a only concern was the adverse effect of such a sucnccor in interest to the first buyer, is discussion of affirmative action on the estopped to deny that Lot I remains subject to immediate audience and the mission of the the zoning ordinance as it existed when Lot I institution. was first conveyed by the landowner to the first (D) Yes, because the law students do not have a right buyer. to use a state-owned law school facility for a (D) The landowner, because with the first buyer's meeting that is not organized and sponsored by knowledge of the facts, Lot I became the law school itself. incorporated into a common scheme. Question 61 - Real Property Question 62 - Contracts A fee-simple landowner lawfully subdivided his land A seller and a buyer have dealt with each other in into 10 large lots. The recorded subdivision plan hundreds of separate grain contracts over the last five imposed no restrictions on any of the 10 lots. Within years. In performing each contract, the seller two months after recording the plan, the landowner delivered the grain to the buyer and, upon delivery, conveyed Lot I to a buyer, by a deed that contained the buyer signed an invoice that showed an agreed no restriction on the lot's use. There was then a lull in upon price for that delivery. Each invoice was silent sales. Two years later, the real estate market in the in regard to any discount from the price for prompt state had generally improved and, during the next six payment. The custom of the grain trade is to allow a months, the landowner sold and conveyed eight of 2% discount from the invoice price for payment the remaining nine lots. In each of the eight deeds of within 10 days of delivery. In all of their prior conveyance, the landowner included the following transactions and without objection from the seller, the language: "It is a term and condition of this buyer took I5 days to pay and deducted 5% from the conveyance, which shall be a covenant running with invoice price. The same delivery procedure and the land for the benefit of each of the 10 lots [with an invoice were used in the present contract as had been appropriate reference to the recorded subdivision used previously. The present contract called for a plan], that for 15 years from the date of recording of single delivery of wheat at a price of 5300,000. The the plan, no use shall be made of the premises herein seller delivered the wheat and the buyer then signed conveyed except for single-family residential the invoice. On the third day after delivery, the buyer Purposes." The buyer of Lot I had actual knowledge received the following note from the seller: "Payment .of what the landowner had done. The landowner in full in accordance with signed invoice is due ded the quoted language in part because the immediately. No discounts permitted." s/Seller. -420Nng ordinance of the municipality had been fiPI' amended a Year earlier to permit professional Which of the following statements concerning these lipony residential zone. offices Shortly after the landowner's facts is most accurate? E RELEASED Q u Es-I" oNs 47 MBE MIXED PRACTICE 2 EFTA00811456 E2 MBE MIXED PRACTIC• W AMERIBAR BAR REVIE srepresentation in the sale of • In a civil action for mi the trade controls, and the bu n yer s contested whether (A) The custom of the ys wi thi real estate, the partie by the State Board of count if he pa defendant was licen sed is entitled to take a 2% dis ag ency established by statute to Realtors, a pu bli c testified 10 days. d the kers. The defenda nt of dealing controls, an license real estate bro (B) The parties' course a 5% disco un t if he pays rebuttal, the plaint iff offers a buyer is entitled to take she was licensed. On cre tar y of the seal of the se within 15 days. waiver certification, bearing the e certification states that lle r's ret raction of his prior State Board of Realtors . Th the (C ) Th e se is entitled to no discoun t. uc ted a thorough search of controls, and the buyer ye r is the secretary cond da tab as es , an d tha t t controls, and the bu all relevant (D) The written contrac t because of the parol agency's records and se ev er no record of a licen entitled to no discoun this search uncovered fen da nt, Th e ce rtif ication the de evidence rule. having been issued to y. tar is signed by the secre Question 63 - Torts of a t there was no record om Is the certification tha ated next to a woman wh license issuance admiss ible? A bus passenger was se od to ex it the bu s, man sto he did not know. The wo ht ly is hearsay not withi n any seat. The passenger lig be ca us e it leaving a package on the en tio n (A ) No , the back to get her att exception. tapped the woman on ck ag e. writing was not pro perly e had forgotten the pa (B) No, because the and to inform her that sh rgery, ha recently had back su and d authenticated. Because the woman tw ist d purpose of impeachin g the d caused her to (C) Yes, for the limite the tap was painful an seriously injure her ba ck . defendant. blic nonexistence of a pu for the (D) Yes, to prove the passenger to recover record. If the woman sues the il? back injury, will she preva operty nsented Question 66 - Real Pr is presumed to have co (A) No, because she of daily life. written contract to se ll a tract to the ordinary contacts A seller entered into a ntion t put in apprehension The contract made no me (B) No, because she wa s no of land to an investor. aft er, the be conveyed. There because of the touching. ched of the quality of title to sa le, an d the ssenger intentionally tou completed the (C) Yes, because the pa seller and the investor inv es tor . So on nty deed to the her. ching seller delivered a warra lan d inc rea se d ssenger's intentional tou of the (D) Yes, because the pa thereafter, the value ed int o a wr itte n . Th e inv estor enter seriously injured her. dr am ati ca lly d to a buyer. The contr ac t contract to sell the lan d the buyer expressly an Question 64 - Constitutio na l Law between the investor le tha t the inv es tor would convey a marketab provided the titl e to executive order in an eff ort to ey discovered that The president issued an title. The buyer's attorn t been (C els ius ) sy stem rketable, and had no e the metric encourage citizens to us I of the executive order the land was not ma nal seller conveyed to the origi of temperatures. Secti on marketable when the le. The ite d Sta tes Weather Bureau, a federal investor. The buye r ref used to complete the sa requires the Un ly in mu ltip le co unts. state temperatures on nal seller on executive agency, to investor sued the origi een the er reports. Section 2 of the ach of the contract betw Celsius in all weath One count was for bre the all privately owned fed era lly damages resulting from executive order requires seller and the investor for rke tab le ision stations giv ing we ath er ey to the investor ma licensed radio and telev seller's failure to conv d to the ratures only in Ce lsi us . No s of the sale of the lan reports to report tempe title, resulting in the los federal statute is appli ca ble . subsequent buyer. ve order constitutiona l? on this count? Is the president's executi Who is likely to prevail in the tional, but Section 2 is no t. use the law implies (A) Section 1 is constitu is no t. (A) The investor, beca that the title would be tional, but Section 1 contract a covenant (B) Section 2 is constitu constitutional. marketable. is liable (C) Sections 1 and 2 are use the original seller unconstitutional. (B) The investor, beca (D) Sections I and 2 are able damages. for all reasonably foresee contract e or igi na l se lle r, because her Question 65 - Evidenc (C) Th e PRACTICE2 MBE MIXED • 48 NS MBE RELEASED QUESTIO EFTA00811457 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • obligations as to title merged into the deed. In a criminal trial, the evidence showed that the (D) The original seller, because she did not expressly defendant's neighbor tried to kill the defendant by agree to convey marketable title. stabbing him. The defendant ran to his room, picked up a gun, and told his neighbor to back off. The Question 67 - Torts neighbor did not, but continued her attack and stabbed him in the arm. The defendant then shot the A consumer became physically ill after drinking part neighbor twice. The neighbor fell to the floor and lay of a bottle of soda that contained a large decomposed quietly moaning. After a few seconds, the defendant snail. The consumer sued the store from which she fired a third shot into the neighbor. The jury found bought the soda to recover damages for her injuries. that the neighbor died instantly from the third shot The parties agreed that the snail was put into the and that the defendant was no longer in fear of being bottle during the bottling process, over which the attacked by her. store had no control. The parties also agreed that the snail would have been visible in the bottle before the The defendant could properly be convicted of which consumer opened it. of the following degrees of criminal homicide, if any? Will the consumer prevail in her action against the store? (A) Attempted murder only. (B) Manslaughter only. (A) No, because the consumer could have seen the (C) Murder or manslaughter. snail in the bottle. (D) No degree of criminal homicide. (B) No, because the store was not responsible for the bottling process. Question 70 - Real Property (C) Yes, because the consumer was injured by a defective product sold to her by the store. When a homeowner became ill, he properly executed (D) Yes, because the store had exclusive control over a deed sufficient to convey his home to his nephew, the bottle before selling it to the consumer. who was then serving overseas in the military. Two persons signed as witnesses to qualify the deed for Question 68 - Evidence recordation under an applicable statute. The homeowner handed the deed to his nephew's friend A defendant is on trial for attempted fraud. The state and said, "I want [the nephew] to have my home. charges that the defendant switched a price tag from a Please take this deed for him." Shortly thereafter, the cloth coat to a more expensive fur-trimmed coat and nephew's friend learned that the homeowner's death then presented the latter for purchase at the cash was imminent. One day before the homeowner's register. The defendant testified in her own behalf death, the nephew's friend recorded the deed. The that the tag must have been switched by someone nephew returned home shortly after the homeowner's else. On cross-examination, the prosecutor asks death. The nephew's friend brought him up to date, whether the defendant was convicted on two prior and he took possession of the home. The homeowner occasions of misdemeanor fraud in the defrauding of died intestate, leaving a daughter as his sole heir. She a retailer by the same means of switching the price asserted ownership of his home. The nephew brought tag on a fur-trimmed coat. an appropriate action against her to determine title to the home. The law of the jurisdiction requires only Is the question about the convictions for the earlier two witnesses for a will to be properly executed. crimes proper? If the court rules for the nephew and against the (A) It is not proper either to impeach the defendant daughter, what is the most likely explanation? or to prove that the defendant committed the crime. (A) The deed was delivered when the homeowner (B) It is proper both to prove that the defendant handed it to the nephew's friend. committed the crime and to impeach the (8) The delivery of the deed was accomplished by defendant. the recording of the deed. (C) It is proper to impeach the defendant, but not to (C) The homeowner's death consummated a valid prove that the defendant (D) It is proper to committed the crime. gift causa mortis to the nephew. prove the defendant committed the (D) The homeowner's properly executed deed was crime, but not to impeach the defendant. effective as a testamentary document. Question 69- Criminal Law and Procedure Question 71 - Criminal Law and Procedure MBE REI.F:•%SED QUESTIONS 49 MBE MIXED PRACTICE 2 EFTA00811458 TICE 2 MBE MIXED PRAC • AMERIBAR BAR RE VIEW items owned collector to acquire independent antique during the president's lifetime. • ive-through city wo m an dr ov e he r car through the dr n. When by residents of the ra ct , the collector purc hases A rnoo co nt staurant in the afte Accordin g to th e to the Park Service % at a lane of a fast-food re us ed to pla ce orders, she d th en se lls th em 10 ophone items an plus a she reached the micr ross the street with a rifle. He e collector's cost llectors are said, "There's a man ac price equal to th ue co u do. If you do not do exactly ases by antiq yo commission. Purch state in which can see ev er yt hi ng al l the money to the sales tax of the ill shoot you. Put ordi na ril y su bje ct s suit in state what I tell you, he w ck and give it to m e when I loc at ed . The collector file in to a sa th e ci ty is tax on these from th e re gi st er did not see anyone s there. across the collection of the e cle rk court to enjoin sales tax is drive up ." Th re whether anyone wa ing that the street and was unsu risk harm to himself, he put purchases, claim plied to them. ap However, unwilling to e woman unconstitutional as ba g and handed it to th n? $500 in a pape r to the delivery wind ow. The urt issue the injunctio Should the state co when she drove up the money but was arrested a ith antiques, woman drove off w an with a th e purchaser of these rnment e had lied about the m (A) N o, be ca us e as gove short tim e la te r. Sh er than the federal ne. the collector rath rifle and had acted alo x. is liable for the ta exclusive man be suit is within the e or crimes can the wo (B) No, beca us e th e Of wh at cr im federal courts. jurisdiction of the vernment is convicted? e the federal go (C) Yes, becaus at ed to pay th e am ount of the cont ract ua lly ob lig cost of (A) Embezzlement. . en it covers the collector's ty by false pretenses sa les ta x wh (B) Obtaining proper . these antiques. (C) Robbery and larce ny y clause, the ) Ye s, be ca us e under the supremac tiques (O) Robb er y or la rc en y. (D to acquire these an of federal program rc ha se sales tax on the pu preempts the state Question 72 - Tons these items. ries when four-y ea r-o ld ch ild sustained serious inju parked A two ence him from between Question 74 - Evid a playmate pushed a car. The ere he was struck by arged with cars into the street, wh tive, sued the driver of the car, an t, a yo ung doctor, is ch ta The de fe nd income tax child, by his represen At trial, ons on her federal re nt s, and his own parents. false ly cla im in g de du cti the defendant the playm at e's pa ries were de te rm ine d to be tri al , a witness testified for the child's total inju re tu rn . A t mmunity for de te rm ine d to putation in the co . Th e pla ym at e's parents we re that she has a re ter a sidebar conference at $100,0 00 adequately . Af at fa ul t be ca use they had failed to complete honesty or gave the judge a record be 20 % to be 50% at ec ut Th e driver was found which th e pr os l school had su pe rv ise he r. rmined to be defendant's medica cript, the n parents were dete showing th at th e ns fault. The child's ow rvise him. for altering her tra re to adequately supe disciplined her s on cross- 30% at fault for failu co mparative es to ask the wi tn es opted the pure prosec ut or pr op os defendant The court has ad ith joint and several liability, in at io n: "H av e yo u ever heard that the e, w exam negligence doctrin s relating to l school transcript?" of th e common-law rule on-law falsified her medica in place dition, th comm e ul t. In ad plaintiff 's fa tra-family liability ha ve been question proper? doct rin es re la tin g to in Is the prosecutor's t within any abrogated. calls for hearsay no (A) No, because it representative hing, is the child's exception. al relevance on the issue of How much, if anyt us e its m in im m the driver? (B) No, be ca substantially outweigh ed by entitled to recover fro income tax fraud is prejudice. the danger of unfair swer will be (A) $30,000 ) Ye s, be ca us e an affirmative an acter for (B) $50,000 (C fendant's bad char probative of the de (C) $100,000 e, her guilt. honesty and, therefor ative answer will impeach (D) Nothing affir m (D) Yes, because an ility. s's cr ed ib itutional Law the wi tn es Question 73 - Const president is e of a former U.S. Question 75 - Torts The childhood hom Th e National rk located in a city. part of a national pa ra ct with an d into a cont Park Service entere PRACTICE 2 MBE MIXED 50 TIONS MBE RELEASED QUES EFTA00811459 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A homeowner owned a large poisonous snake which A customer asked to see an expensive watch in a had been defanged and was kept in a cage. A storm jewelry store. In conversation with the clerk, the damaged the homeowner's house and the snake's customer falsely claimed to be the son of the mayor. cage, allowing it to escape. During the cleanup after When handed the watch, he asked if he could put it the storm, a volunteer worker came across the snake. on, walk around a bit so he could see how it felt on The worker tried to run away from the snake and fell, his wrist, and then briefly step outside to observe it in breaking his arm. natural light. The clerk agreed, saying, "I know I can trust someone like you with the merchandise." The In a suit by the worker against the homeowner based customer walked out of the store wearing the watch on strict liability in tort to recover for his injury, will and never returned. A week later, the clerk was at a the worker prevail? gathering when she spotted the customer wearing the watch. She told him that he must either pay for the (A) No, because the snake's escape was caused by a watch or give it back. He hissed, "I'll knock your force of nature. block off if you mess with me." Intimidated, the clerk (B) No, because the worker should have anticipated backed off. The following list of crimes is in an injury during his volunteer work. descending order of seriousness. (C) Yes, because the homeowner did not take adequate precautions to secure the snake. What is the most serious crime the customer (D) Yes, because the worker's injury was the result committed? of his fear of the escaped snake. (A) Robbery. Question 76 - Real Property (B) Larceny. (C) False pretenses. A buyer validly contracted in writing to buy land (D) Embezzlement. from a seller. The contract had no contingencies and was silent as to risk of loss if there were damage to, Question 78 - Evidence or destruction of, property improvements between contract and closing, and as to any duty to carry In a civil action for breach of an oral contract, the insurance. As soon as the parties signed the contract, defendant admits that there had been discussions, but the seller (who had already moved out) canceled her denies that he ever entered into an agreement with the insurance covering the land. The buyer did not know plaintiff. this and did not obtain insurance. A few days later, three weeks before the agreed closing date, the Which of the following standards of admissibility building on the land was struck by lightning and should be applied by the court to evidence proffered burned to the ground. There is no applicable statute. as relevant to prove whether a contract was formed? In an appropriate action, the buyer asserted the right to cancel the contract and to recover his earnest (A) Whether a reasonable juror would find the money. The seller said the risk of fire loss passed to evidence determinative of whether the contract the buyer before the fire, so the buyer must perform. was or was not formed. If the seller prevails, (B) Whether the evidence has any tendency to make what is the most likely the fact of contract formation more or less explanation? probable than without the evidence. (C) Whether the evidence is sufficient to prove, (A) Once the parties signed the contract, only the absent contrary evidence, that the contract was or buyer had an insurable interest and so could have was not formed. protected against this loss. (3) The buyer's constructive (D) Whether the evidence makes it more likely than the contract gave possession arising from not that a contract was or was not formed. him the affirmative duty of protecting against loss by (C) The seller's fire. Question 79 - Contracts cancellation of her casualty insurance practically construed the contract to A mother, whose adult son was a law school transfer the risk of loss (Di Upon to the buyer. graduate, contracted with a tutor to give the son a bar execution of the contract, the became the equitable buyer exam preparation course. "If my son passes the bar owner of the land under the exam," the mother explained to the tutor, "he has doctrine of equitable conversion. been promised a job with a law firm that will pay Question 77 - $55,000 a year." The tutor agreed to do the work for Criminal Law and Procedure $5,000, although the going rate was $6,000. Before mBE RI% I %INF I) QUESTIONS 51 MBE MIXED PRACTICE 2 EFTA00811460 E2 MBE MIXED PRACTIC VIEW AMERIBAR BAR RE t, refuse to issue the • the reasonably believe tha u. , the tutor repudiated injunction against the Burea the instruction was to begin r or the son reasonably wh eth er the process used by the the (B) Determine contract. Although the mo lly pasteurization and, if it is, ve em plo ye d, for $6,000, an equa brewery is as safe as st the Bureau. could ha ith er did ain lace the tutor, ne issue the injunction ag qualified instructor to rep m merits of the suit at thi s ba r exam and the law fir (C) Refus e to ad jud ica te the so. The son £ailed the tha t ha d the tion until the Bu rea u ha s refused to employ him . It can be show n time and stay the ac s. ction, he would have pa ssed ality standard son received the ins tru actually issued beer qu it, ica te the merits of the su the bar exam. (D) Refuse to adjud involve a justiciable case or and because it does not n join as parties plaintiff controversy. If the mother and the so ch , if of contract, how mu sue the tutor for breach acts ed to recover? Question 81 - Contr anything, are they entitl t with a other damages could ha ve into a single contrac (A) $1,000, because all A landowner entered ilt on ying an oth er eq ua lly different structur bu er. es been avoided by emplo builder to have three the lan do wn perty owned by qualified instructor. were separate pieces of pro oth er tw o and damages of that amount distinct from the (B) $55,000, because Each structure was for ea ch . Af ter ion of the parties at the the parties agreed on a specific price within the contemplat ucture in ac co rda nc e wi th the time they contracted. r was completing the first str builder demanded payment ly, because the mothe terms of the co ntr ac t, the (C) Nominal damages on h and the tutor made no for that structure. At the same not injured by the breac of the specified price bu ilder the landowner that the promise to the son. son time, the builder told an d wo uld er the mother nor the truction business" (D) Nothing, because neith was "tired of the cons uc tur es . Th e cons eq ue nc es of the other two str took steps to avoid the not even begin the the bu ild er . y anything to tutor's breach. landowner refused to pa agreed prevail in a suit for the Question 80 - Constitutio nal Law Is the builder likely to e? of price of the first structur ed the National Bureau A federal statute requir sta nd ard s for tantial performance is a nimum quality (A) No, because subs to the landowner's duty to Standards to establish mi also ite d States. The statute constructive condition all beer sold in the Un st pre ce de provided that public proceedings mu pay at the contract rate. on of s, and tha t on ce the y we re the builder's cessati adoption of the standard ici al (B) No, because al ex cu se is a willful s would be subject to jud ral performance without leg adopted, the standard Se ve ve yet been adopted. breach of the contract. review. No standards ha ve contract is divisible, and e the l Bureau of Standards ha (C) Yes, because the officials of the Nationa pro du ce d uired to bring a se pa rat l preference for beer landowner will be req indicated their persona err ed to as s failure to complete the cess commonly ref claim for the builder' by a special brewing pro not ve r, these officials have other two structures. pasteurization. Howe to inc lud e a contract is divisible, bu t the y intend (D) Yes, because the indicated whether the mi nim um be er to deduct an y rec ov era ble zation in the requirement for pasteuri opted by the Bureau. A landowner will be able ild er' s fai lur e to the bu quality standard s to be ad lieves damages caused by t du ce s an unpasteurized beer be complete the contract. brewery tha pro n. as safe as pasteuri tio za that its brewing process is t, after the appropriate operty The brewery is concern ed tha s Question 82 - Real Pr u may adopt quality standard proceedings, the Burea ste uri ze d be er. title holder of a vaca nt tract of any unpa An uncle was the record s that he would leave the that will prohibit the sale court As a result, the brewe ry su ed in federal district of land. He often told friend ew of opting an y sta nd ard s that ne ph ew in his will. The nephew kn to enjoin the Bureau from ad this land to his ior to the uncle's death , the unpasteurized beer in these conversations. Pr d by warranty deed to a would prohibit the sale of lan country. nephew conveyed the a title 0,0 00 . Sh e did not conduct from woman for $1 de ed court dispose of the suit? e she accepted the How should the district search of the land befor y and properly recorded her ptl the nephew. She prom land to the Bureau could reaso ss nably mo nth , the un cle died, leaving the (A) Determine whether n is the sa fes t pro ce deed. Last duly probated wi ll. Bo th the believe that pasteurizatio Bu rea u co uld the nephew in his d if the by which to brew beer, an PRACTICE2 MBE MIXED 52 "nr , n n, vAcvn IFSTIONS EFTA00811461 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • • nephew and the woman now claim ownership of the of the commerce clause of the Constitution. land. The nephew has offered to return the $10,000 to the woman. Which of the following is the best argument in favor of the state's effort to have this lawsuit dismissed? Who has title to the land? (A) Any burden on interstate commerce imposed by (A) The nephew, because at the time of the deed to the state law is outweighed by a legitimate state the woman, the uncle was the owner of record. interest. (B) The nephew, because the woman did not conduct (B) Congress has the authority to authorize specified a title search. state regulations that would otherwise be (C) The woman, because of the doctrine of estoppel prohibited by the negative implications of the by deed. commerce clause, and it has done so in this (D) The woman, because she recorded her deed prior situation. to the uncle's death. (C) The state law does not discriminate against out- of-state citrus growers or producers. Question 83 - Torts (D) The state law furthers a legitimate state interest, the burden it imposes on interstate commerce is A customer fell and injured himself when he slipped only incidental, and the state's interest cannot be on a banana peel while shopping at a grocers store. satisfied by other means that are less burdensome The banana peel was fresh and clean except for a to interstate commerce. mark made by the heel of the customer's shoe. In an action brought by the customer against the grocer, Question 85 - Contracts these are the only facts in evidence. In financial straits and needing $4,000 immediately, a Should the trial judge permit the case to go to the nephew orally asked his uncle for a $4,000 loan. The jury? uncle replied that he would lend the money to the nephew only if the nephew's mother "guaranteed" the (A) No, because the customer had an obligation to loan. At the nephew's suggestion, the uncle then watch where he stepped. telephoned the nephew's mother, told her about the (B) No, because there is not a reasonable basis for loan, and asked if she would "guarantee" it. She inferring that the grocer knew or should have replied, "Surely. Lend my son the $4,000 and I'll known of the banana peel. repay it if he doesn't." The uncle then lent $4,000 to (C) Yes, because it is more likely than not that the the nephew, an amount the nephew orally agreed to peel came from a banana offered for sale by the repay in six weeks. The next day, the nephew's grocer. mother wrote to him and concluded her letter with the (0) Yes, because the grocer could foresee that a words, "Son, I was happy to do you a favor by customer might slip on a banana peel. promising your uncle I would repay your six-week $4,000 loan if you don't. is/ Mother." Neither the Question 84 - Constitutional Law nephew nor his mother repaid the loan when it came due and the uncle sued the mother for breach of The United States Congress enacted a federal statute contract. In that action, the mother raised the statute providing that any state may "require labeling to of frauds as her only defense. show the state or other geographic origin of citrus. fruit that is imported into the receiving state." Will the mothers statute-of-frauds defense be Pursuant to the federal statute, a state that produced large quantities of citrus successful? fruit enacted a law requiring all citrus fruit imported into with a two-letter the state to be stamped (A) No, because the amount of the loan was less than postal abbreviation signifying the $5,000. state of the fruit's origin. such requirement The law did not impose any (B) No, because the mother's letter satisfies the for citrus fruit grown within the statute-of-frauds requirement. slate. When it adopted the law, the state legislature (C) Yes, because the mothers promise to the uncle declared that its purpose infection of local citrus was to reduce the risks of was oral. . that have been crops by itinerant diseases (D) Yes, because the nephew's promise to the uncle found to attack citrus fruit. A national association of citrus was oral. law declared growers sued to have the state that the law isunconstitutional. The association claims Question 86 - Criminal Law and Procedure prohibited by the negative implications MBE RELEAsEu QuesrioNS 53 MBE MIXED PRACTICE 2 EFTA00811462 TICE 2 MBE MIXED PRAC • AMERIBAR BAR RE VIEW apartment. His nted a furnished A law student re s advice about he r legal e received so lic it hi s robbed, the polic 111, landlord be ga n to lord then Afte r a liq uo r sto re wa ing a store fu se d to provide it. The land ym ou s te lephone call nam affairs, bu t he re the apartment imm ediately. an an on y. Honestly va ca te as th e pe rp etrator of the robber demande d th at he d in a pattern of ha rassment, em plo ye e ed by the en ga ge actions were permitt of the The la nd lo rd als o at home every ev t during ening and believing that their on e de nt the police talked callin g th e stu nsen U.S. Constitution, em ployee's ent without his co ring these ors into going to th e entering his apartm Du employee's neighb pe recorder to engage him in a was at sc ho ol. ta times when he ndles from the home with a hidden the crime. Durin g the g the vis its she removed the ha ou t unauthorized did not touch conver sa tio n ab mmittin chen sinks, but ployee admitted co bathroom and kit e lease has a conversation, the em in state court g to the student. Th ing in the ye e was char ged anything belongin liv robb ery. Th e em plo oved to suppress th e recording the student is still landlord for with the robbery. He m e method of obtaining it year to run, and th e dent has sued at th apartment. The stu on the grounds th th the state ns tit ut ional rights under bo a clear trespass to land. violated his co th at utions. Assume and federal constit t holds that the ail? state su pr em e co ur Is he likely to prev precedent from the in making e reco te th rding e po lic e ing to sue for conduc t of th r the sta he has no stand yee's rights unde le is the (A ) N o, be ca us e violated the emplo na ry ru trespass. at the exclusio no damage to constitution, and th e landlord caused is violation. (B) No, because th proper remedy for th his property. only. ion? pensatory damages ant the employee's mot (C) Yes, for com compensatory Should the court gr s, fo r in ju nc tive relie f, (D) Ye e damages. nstitutional damages, and punitiv employee's federal co mstance (A) No, because the d, and th is cir cu rights were not violate utional provisions. tracts nstit overrides any state co were acting in the good- Question 89 - Con (B) No, because th e po lic e r to his adult actions were perm itted by cle mailed a lette faith belief th at th ei r On May I, an un "I am thinking of selling my d: n. the federal Constitutio ing of the recording nephew that state u have seen and rid 3, the den in. I ak tru ck , wh ich yo the m pickup n May (C) Yes, beca us e g $7,000 for it." O violated th e sta te co ns tit ution. late would consider takin llowing response: "I will buy use of th e recording would vio nephew mailed th e fo received this (D) Yes, because ral constitutiona l rig ht s. fo r $7 ,0 00 cash." The uncle the neighbor's fede yo ur pi ck up d a note that ay 5 an d on May 6 maile le tte r on M re the nephew al." On May 7, befo ed his uncle ce stated: "It's a de on Question 87 - Eviden tter of May 6, he ph had received the le nt ed to bu y the pickup showed that long er wa l tri al fo r sla nder, the plaintiff to report that he no driver's license had been At a ci vi a thief. In his called the plaintiff testify, "I truck because the defendant had to ant called a witness suspen de d. defense, the defend r fo r m an y years, and iffs ne igh bo erning this have been the plaint ve said that he fo llo w ing statements conc munity generally ha Whi ch of th e people in our com te? is a thief." exchange is accura ning the plaintiff's re putation ract as of May 3. y co nc er (A) There is a cont Is th e te st im on ract as of May 5. missible? (B) There is a cont in the community ad ntract as of May 6. (C) There is a co ial element of (D) There is no cont ract. aracter is an essent (A) No, because ch oof must be made by specific the defense, and pr al Property t. instances of conduc plaintiff is a thief, and to Question 90- Re th at th e itten contract (B) Yes, to pr ov e da mages claimed, bu ye r an d a se lle r entered into a wr land. The reduce or refute th e A of e plaintiff is a thie f, but not an identified parcel s, to pr ov e th at th for the sale of th at th e bu ye r was to pay (C) Ye ovided ges. on the issue of dama te the damages claimed, contract expressly pr land at the time of the closing e ce or re fu $150,000 cash for th sing date. The parties had not (D) Yes, to redu e plaintiff is a thief. no t sta te th e clo r was not but not to pr ov e th at th but did te because the buye w she on th e clo sin g da agreed ned ho the contract was sig sure at the time Question 88 - Torts PRACTICE 2 MBE MIXED • 54 - gm. ocelinNS EFTA00811463 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • would raise the cash. Question 92 - Contracts Fifteen days after the contract was signed, the seller A seller and a buyer entered into a contract obligating learned that he could sell the land to a third party for the seller to convey title to a parcel of land to the $200,000. buyer in exchange for $100,000. The agreement provided that the buyer's obligation to purchase the The seller asked the buyer if she would agree to parcel was expressly conditioned upon the buyer's rescind the contract. The buyer refused. The seller obtaining a loan at an interest rate no higher than then told her that he would not complete the 10%. The buyer was unable to do so but did obtain a transaction, contending that the contract was loan at an interest rate of 10.5% and timely tendered unenforceable under the statute of frauds because an the purchase price. Because the value of the land had essential element (time for performance) was not increased since the time of contracting, the seller agreed upon by the parties and was not expressly refused to perform. The buyer sued the seller. stated in the written agreement. The seller sold the land to the third party. Is the buyer likely to prevail? The buyer brought an appropriate action against the (A) No, because an express condition will be seller for breach of contract. For which party is the excused only to avoid forfeiture. court likely to find? (B) No, because the contract called for a loan at an interest rate not to exceed 10% and it could not (A) The buyer, because of the doctrine of unjust be modified without the consent of the seller. enrichment. (C) Yes, because the buyer detrimentally changed (B) The buyer, because the court will infer that position in reliance on the seller's promise to performance within a reasonable time was convey. intended. (D) Yes, because the buyer's obtaining a loan at an (C) The seller, because the contract is unenforceable interest rate no higher than 10% was not a under the statute of frauds. condition to the seller's duty to perform. (D) The seller, because time of performance is presumed to be of the essence. Question 93 - Torts Question 91 - Criminal Law and Procedure A bright 12-year-old child attended a day-care center after school. The day care center was located near a Four men are charged with conspiracy to commit a man-made duck pond on the property of a series of bank robberies. Nine successful bank corporation. During the winter, the pond was used for robberies took place during the period of the charged ice-skating when conditions were suitable. At a time conspiracy. Because the robbers wore masks and when the pond was obviously only partially frozen, gloves and stole the bank surveillance tapes, no direct the child sneaked away from the center's property and identification of the robbers by the witnesses has walked out onto the ice over the pond. The ice gave been made. Some circumstantial evidence ties each way, and the child fell into the cold water. He of the men to the overall conspiracy. During cross- suffered shock and would have drowned had he not examination, a prosecution witness testified that one been rescued by a passerby. At the time of the defendant was in jail on other charges during six of incident, the pond was clearly marked with signs that the robberies. That defendant's lawyer has moved for stated, 'THIN ICE - KEEP OFF." When the child a judgment of acquittal at the close of the sneaked away from the day-care center, the center government's case. was staffed with a reasonable number of qualified personnel, and the employees were exercising Should the motion be granted? reasonable care to ensure that the children in their charge did not leave the premises. There had not been (A) No, because a conspirator is not required to agree a previous instance of a child coming onto the to all of the objects of the corporation's property from the day-care center. The (B) No, because a conspiracy. conspirator need not be present at jurisdiction follows a rule of pure comparative the commission of each crime conspired upon. negligence. (C) Yes, provided the defendant has complied the rule requiring with (D) Yes, regardless of pretrial notice of alibi. In a suit brought on the child's behalf against the compliance with the alibi rule, corporation and based only on the facts above, who is because the government is bound by exculpatory likely to prevail? evidence elicited during its case-in -chief. MBE BEI. EASED QUES11ONS 55 MBE MIXED PRACTICE 2 EFTA00811464 E2 MBE MIXED PRACTIC AMERIBAR BAR REVIEW intent to cause that ag ain st an other person with the safety may be ca us e the co rporation owes a duty n to fea r for his or her life or (A) Th e ch ild , be pe rso fense, the man its pre mi se s free of dangerous pri so ne d for up to five years." In de to ke ep im ch his neighbors, im ed tha t he did not intend to lyn conditions. tive cla y would move away. ) Th e ch ild , be ca us e the pond was an attrac bu t on ly to scare them so that the (B nuisance. use the danger of thin ice convicted under this (C) The corporation, beca by Ca n the man constitutionally be cted to be understoo d may reasonably be expe law? a 12-yea r-o ld ch ild . icating his ion , be ca us e the day-care center had ) No , be ca us e he was only commun (D) The co rpo rat (A overt action ty to ke ep the ch ild of f the ice. vie ws an d ha d not commenced any a du against the neighbors. in trespass when 94 - To rts (B ) Ye s, be cause he was engaged Qu es tio n ighbors house. .1 he pa inted the words on his ne was a threat by repeated from question 93 communication [NOTE: These facts are (C) Yes, because his bors. atten de d a da y-c are ce nte r ich he inten de d to intimidate his neigh A bright 12-year-old child ce nter's property wa s wh e his communica tio n wa s racially ol. Th e da y ca re (D ) Ye s, be ca us tions of after scho ck pond on the property an d thus violated the protec ar a ma n-m ad e du mo tiv ate d located ne was g the winter, the pond the Thirteenth Amendm ent. of a corporation. Durin re su ita ble . en conditions we used for ice-skating wh s obviously only partially ocedure a tim e wh en the po nd wa Qu es tio n 96 - Criminal Law and Pr At and d away from the center frozen, the child sneake ice ga ve sault and battery in a walked out onto the ice over the po nd . Th e He A de fen dant was charged with as at" doctrine, and . ed the "retre ll into the cold water jurisdiction that follow At his trial, the evidence way, and the child fe ve dr ow ne d ha d he no t efe ns e. suffered shock and wo uld ha he pleaded self-d re by a pa ss erb y. At the tim e of the lis he d the fo llo wi ng : A man and his wife we been res cu ed es tab fen nt da the po nd wa s cle ar ly marked with signs that en joy ing a dr ink at a tavern when the de ered incident, OFF." When the child fe whisp , "T HI N IC E - KE EP en ter ed an d sto od near the door. The wi man who stated nter defendant was the day-care center, the ce to her husband that the sneaked away from the er of qu ali fie d street the day before. The nable numb had insulted her on the was staffed with a reaso yees were exercising nt and sa id, "G et out personnel, and the emplo the ir hu sb an d approached the defenda e defendant said, re that the children in ur nose." Th reasonable care to ensu of here, or I'll break yo the se s. Th er e ha d no t be en clo se r, or I'll hurt you." When charge did not leave the pre mi on to the "D on't come any gly , the de fen da nt tan ce of a ch ild coming sb an d rai se d his fists menacin a previou s ins hu et, aim it ed pe rty fro m the day-care center. The lle d a ca n of pe pper spray from his pock corporati on 's pro e pu e husband fell ict ion fol low s a ru le of pure comparativ at the hu sb an d's face, and sprayed. Th jurisd pain. negligence. to the floor, writhing in y ild's behalf against the da Should the defendant be convicted? In a suit brought on the ch evail? to pr care center, who is likely ation to retreat (A ) No , be cause he had no oblig . he adly force left the center while before resorting to non-de (A) The child, because he on to retreat s un de r the ce nte r's ca re. (B ) No , be ca us e there is no obligati wa ated d structure. the day care center is loc when one is in an occupie retreat even though (B) The child, because failed to near a pond. was not (C) Yes, because he ce nte r, be ca us e it re wa s an op po rtu nity available. (C) The day care the not threaten to use negligent. a (D ) Ye s, because the hu and did sb s r, because the child wa deadly force against him . (D) The day care cente trespasser. Question 97 - Contracts tiona l La w Question 95 - Constitu experience in the An inn ke ep er, who had no previous who knew en se ly dis lik ed his neighbors, who were of mo tel or co mm erc ial laundry business and business, A man int n his usages of either ht, intending to frighte nothing about the trade d an agreement with a a different race. One nig us e wi th ra cia l sig ne inted their ho bought a motel and services. neighbors, he spray-pa y wo uld be lynched. The y for the motel's laundry service ts tha t the ry co mp an epithets and threa law laund nt provided for "daily secuted under a state The one-year agreeme man was arrested and pro who threatens violence rson providing that "any pe PRACTICE 2 MBE MIXED • 56 EFTA00811465 AMERIBAR BAR REVIEW MBE MIXED PFtACTICE 2 • at $500 a week." From their conversations during expectation that he would finish the work and have negotiation, the laundry company knew that the the homeowner's payment on June I, the carpenter innkeeper expected laundry services seven days a contracted to buy a car for "$10,000 in cash, if week. When the laundry company refused to pick up payment is made on June I; if payment is made the motel's laundry on two successive Sundays and thereafter, the price is $12,000." The carpenter indicated that it would not ever do so, the innkeeper completed the work according to specifications on canceled the agreement. The laundry company sued June I and demanded payment from the homeowner the innkeeper for breach of contract. At trial, clear on that date. The homeowner, without any excuse, evidence was introduced to show that in the refused to pay. Thereupon, the carpenter became very commercial laundry business "daily service" did not excited, suffered a minor heart attack, and, as a result, include service on Sundays. incurred medical expenses of 81,000. The reasonable value of the carpenter's services in remodeling the Will the laundry company succeed in its action? homeowner's home was $13,000. (A) No, because the laundry company knew the In an action by the carpenter against the homeowner, meaning the innkeeper attached to "daily which of the following should be the carpenter's service," and, therefore, the innkeeper's meaning measure of recovery? will control. (B) No, because the parties attached materially (A) $10,000, the contract price. different meanings to "daily service: and, (B) $11,000, the contract price plus $1,000 for the therefore, no contract was formed. medical expenses incurred because the (C) Yes, because the parol evidence rule will not homeowner refused to pay. permit the innkeeper to prove the meaning she (C) $12,000, the contract price plus $2,000, the attached to "daily service." bargain that was lost because the carpenter could (D) Yes, because the trade usage will control the not pay cash for the car on June I. interpretation of "daily service." (13) $13,000, the amount the homeowner was enriched by the carpenter's services. Question 98 - Real Property Question 100 - Evidence A landowner orally gave his neighbor permission to share the use of the private road on the landowner's A plaintiff sued her employer, alleging that poor land so that the neighbor could have more convenient working conditions had caused her to develop a access to the neighbor's land. Only the landowner stomach ulcer. At trial, the plaintiff's medical expert maintained the road. After the neighbor had used the testified to the cause of the plaintiffs ulcer and stated road on a daily basis for three years, the landowner that his opinion was based in part on information in a conveyed his land to a grantee, who immediately letter the plaintiff's personal physician had written to notified the neighbor that the neighbor was not to use the plaintiffs employer, explaining why the plaintiff the road. The neighbor sued the grantee seeking a had missed work. declaration that the neighbor had a right to continue to use the road. When offered to prove the cause of the plaintiffs condition, is the letter from the plaintiffs doctor Who is likely to prevail? admissible? (A) The grantee, because an oral license is invalid. (A) No, because it is hearsay not within any (B) The grantee, because the neighbor had a license exception. that the grantee could terminate (C) The neighbor, because at any time. (B) No, because the plaintiffs physician is not shown the grantee is estopped to to be unavailable. terminate the neighbor's use of the road. (D) The neighbor, because (C) Yes, because it was relied upon by the plaintiff's the neighbor's use of the medical expert. road was open and notorious when the grantee (D) Yes, under the business records exception to the purchased the land. hearsay rule. Question 99 - Contracts A carpenter the contracted with a homeowner to homeowner's home for remodel completion of the $10,000, to be paid on work. On May 29, relying on his AlliE Rt:l,£ASED QUESTIONS 57 MBE MIXED PRACTICE 2 EFTA00811466