Midland Funding vs. me in Arizona 2010

Recommended Posts

Good grief...that would be laughable if it wasn't so pathetic!

Oh...and did they mention under job requirements...

Must be able to sign at least 2500 affidavits a day without questioning what is stated in the affidavit or whether or not a notary happens to be watching as you sign them?

Absolutely laughable 8-)


Pretty funny!!

Share this post

Link to post
Share on other sites

i tend to visit the law library a lot here in ny.

if there are cases that you have not been able to find that you might want me to look up at the law library feel free to let me know. i'd be more than glad to pull up cases on lexisnexis or fdcpa material.


Thanks a lot for your wish to help !

I need one case that cannot find by Googling:

Norm Adver., Inc. v. Monroe St. Lumber Co., 25 Wn.2d 391, 398, 171 P.2d 177 (1946).

that says:

"In order to establish a cause of action involving breach of contract,

it’s necessary to show “the making and existence of a valid and enforceable contract between the parties; the right of the plaintiff and the obligation of

the defendant thereunder; a violation of the contract by the defendant;

and the amount of damages resulting to the plaintiff therefrom.” "

Share this post

Link to post
Share on other sites
How did your case go? Update?


I'm finishng my Motion in Limine,

and would appreciate your feedback (will PM it to you).

Share this post

Link to post
Share on other sites

I'm submitting this Motion in Limine the next week to not miss deadline

"30 days before the Trial".








Defendants under Arizona RCP ("ARCP") Rule 7.2(B) respectfully move this Court for an Order, in Limine, barring Plaintiff Midland Funding LLC (“Midland”) from introducing any Evidence outside of the Evidence Plaintiff produced in its Original and Amended Disclosure Statements filed in October 2010 (Plaintiff’s Exhibits A, B, C and D).


1. ARCP Rule 37©(1) provides that a party's failure to disclose information required by ARCP Rule 26.1(B)(2), without substantial justification, bars use of that evidence at trial or in any motion unless such failure is harmless.

2. ARCP Rules 26.1(B)(2) and 37©(2) provide that a party seeking to use information which that party first disclosed later than sixty (60) days before trial shall seek leave of court to extend the time for disclosure.

3. ARCP Rule 37©(2) provides that a party seeking to use information which that party first disclosed during trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure.

4. In their only one Discovery Request (September 2010) Defendants asked Plaintiff to produce documentation that could provide:

a) Proof that the Plaintiff acquired the alleged account from OC, and such proof must include the alleged account number, both Defendants’ names, Social Security Numbers, Dates of Birth, the Defendants’ address,

Date of Sale and Amount of Sale in U.S. dollars;

B) Proof that the Plaintiff is the real successor-in-interest of the alleged debt. The Defendants demand proof of ownership specifically that the alleged account is the legal property of the Plaintiff with all of the original creditor’s rights and privileges intact.

5. This Discovery Request was sent by certified U.S. Mail to Plaintiff's Attorney on September xx, 2010.

A copy of the certified mail receipt is attached hereto as “Attachment 1".

6. Defendants sent via e-mail two letters to Plaintiff's Attorney on November yy, 2010 and December zz, 2010, asking him to produce all requested documents. The copies of these e-mails attached as Attachments 2 and 3.

7. Plaintiff never provided any of Documents requested in Defendants’ Discovery breaching its “Duty to Disclose” under ARCP Rule 26.1.

8. Plaintiff never sent to Defendants a “Good Cause” notice explaining why requested documentation cannot be produced in timely manner.

9. A proof that Plaintiff is the real successor-in-interest of the alleged debt is the most important and essential information that the Plaintiff is required to produce to support its Standing as the Real Party in Interest under ARCP Rule 17(a).

10. As such said, Plaintiff has failed to disclose to Defendants requested in their Discovery documentation in timely manner required by ARCP Rule 26.1, and without any good cause.

11. If Plaintiff is allowed to disclose untimely any new Evidence after Discovery is closed, then Plaintiff will be unjustly advantaged on expense of Defendants that will be prejudiced in their ability to review, analyze and question such Plaintiff’s new Evidence.

12. Therefore, Defendants will be unduly prejudiced if this Motion in Limine is not granted and Plaintiff is allowed to introduce any Evidence that was not previously disclosed to Defendants.


For the foregoing reasons, Defendants ask this Court to enter an Order precluding Plaintiff from presenting any Evidence, outside of the previously produced Exhibits A, B, C and D.

The Defendants state under penalty of perjury that the foregoing is true and correct.

Date: Defendant(s) Signature(s):

Attachment 1: A copy of the certified mail receipt.

Attachment 2: A copy of the e-mailed letter dated by November xx, 2010.

Attachment 3: A copy of the e-mailed letter dated by December zz, 2010.

Share this post

Link to post
Share on other sites

Edward X. Clinton Commercial Litigation Law Blog on


By Edward X. Clinton, Jr.

The Law Offices of Edward X. Clinton, P.C.

30 North LaSalle Street, Suite 3400

Chicago, IL 60602

Obtaining the admission of business records is a often a

critical component of any trial. Under Rule 803(6) if a

document qualifies as a business record, it is not hearsay. The

rule applies whether or not the declarant is available as a

witness. The Rule presupposes that a business will have strong

incentives to keep accurate records.

Timberlake Construction

Co. v. U.S. Fidelity and Guaranty Co., 71 F.3d 335 (10th Cir.


I. The Rule

The Rule defines a business record as "a memorandum,

report, record, or data compilations, in any form, of acts,

events, conditions, opinions, or diagnoses, made at or near the

time by, or from information transmitted by, a person with

knowledge." Rule 803(6) is not limited to businesses. The Rule

specifies that "the term 'business' as used in this paragraph

includes business, institution, association, profession,

occupation, and calling of every kind, whether or not conducted

for profit."

Edited by GDayMateAZ

Share this post

Link to post
Share on other sites

2- A business record is admissible if it is "kept in the

course of a regularly conducted business activity, and if it was

the regular practice of that business activity to make the

[record]." Id. A business record is not admissible where "the

source of information or the method of circumstances of

preparation indicate lack of trustworthiness."

The Ninth Circuit summarizes the Rule's requirements as

follows: "a business record is admissible when

(1) it is made or based on information transmitted by a person with knowledge

at or near the time of the transaction;

(2) in the ordinary course of business; and

(3) is trustworthy, with neither the

source of information nor method or circumstances of preparation

indicating a lack of trustworthiness."

The Monotype Corporation PLC v. Int'l Typeface Corp., 43 F.3d 443, 449 n.6

(9th Cir. 1994).

Edited by GDayMateAZ

Share this post

Link to post
Share on other sites

II. Regularly Conducted Business Activity

The key foundational inquiry is whether the document was

prepared in the course of "a regularly conducted business

activity." The document must concern business activity.

In Hargett v. National Westminster Bank, 78 F.3d 836 (2d Cir.


plaintiff, an african-american, was terminated from his

position as an executive of the defendant bank after he

allegedly retained a stripper to perform at an office meeting.

Plaintiff alleged that he was terminated by reason of his race.

At trial, he sought to introduce a handwritten note allegedly

prepared by a co-employee of the defendant bank in which the co-

employee admitted that he had procured the services of the

stripper. The note was unsigned. The district court denied

plaintiff's offer of admission because plaintiff could not

establish a foundation for its admissibility as a business

record. Indeed, it is hard to imagine that the letter was "a

record of regularly conducted activity." Moreover, plaintiff

could not offer testimony concerning when and where the

handwritten letter was prepared.

The business activity must also be regular. In The

Monotype Corporation, the defendant and plaintiff entered into a

licensing agreement to allow plaintiff to distribute several of

defendant's typefaces. Plaintiff developed several typefaces

independently and began selling them to purchasers. Defendant

claimed that plaintiff's typefaces were copies of its typefaces.

Plaintiff sued to bar defendant from making such claims to

plaintiff's customers, including Microsoft. At trial, defendant

sought to admit a report prepared by an employee of plaintiff's

customer Microsoft concerning the similarities in several

typefaces sold by plaintiff and defendant. The report was not a

business record because it was not Microsoft's regular practice

to prepare such reports. Id. at 449-50 (also excluding an

electronic mail message which was a one-time event).

Share this post

Link to post
Share on other sites

III. The Chain Of Knowledge

The proponent must establish a chain of knowledge.

According to Weinstein's Evidence, "Each participant in the

chain producing the record -- from the initial observer-reporter

to the final entrant -- must be acting in the course of the

regularly conducted business."

Jack B Weinstein & Margaret A.

Berger, Weinstein's Evidence P803(6) [04] (1994).

In United States v. Warren, 42 F.3d 647 (D.C. Cir. 1994),

the defendant

was found in a room containing drugs and a handgun. The

defendant sought to introduce a statement from a police report

that two other occupants of the apartment were dealing drugs and

carried handguns. The police report did not qualify as a

business record because the defendant could not show that the

report's author had personal knowledge concerning the activity

of the other occupants of the apartment or had based the

statement on information provided to him by a person with

personal knowledge acting in the regular course of business.

Id. at 656.

IV. The Custodian's Knowledge

The custodian of business records need not have detailed

knowledge concerning who prepared a particular business record.

The custodian need only show that he is "sufficiently familiar

with the business practice" of the business and show that the

record was made pursuant to that practice.

Phoenix Associates III v. Stone, 60 F.3d 95 (2d Cir. 1995).

In Phoenix Associates,

the plaintiffs claimed that they had an oral contract with

defendant. At trial, plaintiffs sought to introduce a record of

a wire transfer to substantiate the claimed oral contract.

Plaintiff's witness, its records custodian, testified that

plaintiff's accounting department regularly compiled records of

every wire transfer it received or issued. The district court

denied plaintiff's offer of the exhibit on the ground that the

records custodian worked for both the plaintiff and another

company which made the wire transfer. The Court of appeals

reversed. The custodian's source of employment was irrelevant

"as long as his testimony can supply a sufficient foundation."

Id. at 101.

Moreover, the custodian was not required to

demonstrate personal knowledge of the actual creation of the

document. Nor was he required to identify the specific employee

who prepared the document.

The Rule required only that the

proponent prove that the business entity's regular practice was

to obtain the information from the person who created the

document. Id. V. I


So, JDB<->Alleged OC business is NOT a REGULAR business activity.

It's just an ONE TIME purchase of distressed/defaulted consumer debt portfolio(s). So, JDB's Custodian's Testimony about alleged OC created documentation should not be admitted by the court,

based on Phoenix Associates III v. Stone, 60 F.3d 95 (2d Cir. 1995).


Share this post

Link to post
Share on other sites

V. Is The Document Trustworthy?

The Rule requires the court to determine whether the source

of the information or the method or circumstances of the

preparation of a document cast doubt on its trustworthiness.

In Hoselton v. Metz Banking Co., 48 F.3d 1056 (8th Cir. 1995),plaintiffs, minority shareholders in defendant's business,

claimed that defendants breached their fiduciary duties when

they were excluded from a sale of the business to a third party.

Notes taken by plaintiffs' accountant were properly admissible

because they were prepared in the regular course of the

accountant's activity. The notes appeared to be trustworthy

because the accountant had professional duties to his clients

which would give him strong motivation to make accurate notes.

Id. at 1061.

Information provided by the customers of a business can

create problems under the Rule because many businesses do not

verify information received from customers. Such information

may be admissible under Rule 803(6) if the proponent can show

that "the business entity has adequate verification or other

assurance of accuracy of the information provided by the outside

person." United States v. McIntyre, 997 F.2d 687 (10th Cir.

1993), cert. denied, 114 S.Ct. 736 (1994).

In McIntyre, the court listed two ways to demonstrate reliability:

(1) proof that the business has a policy of verifying patrons' identities

by examining their credit cards and other forms of

identification; or

(2) "proof that the business possesses

'sufficient self-interest in the accuracy of the [record]' to

justify an inference of trustworthiness."

United States v Cestnik, 36 F.3d 904, 908 (10th Cir. 1994)

(quoting McIntyre, 997 F.2d 687, 700 (10th Cir. 1993).

In McIntyre, the court held

it was improper to admit a hotel's guest registration cards

because it was unclear whether the hotel had procedures to

verify the accuracy of the cards. 997 F.2d at 701.

VI. Documents Prepared In Anticipation of Litigation

Documents prepared in anticipation of litigation are

usually not admissible because they were not prepared in the

regular course of business.

Timberlake Construction Co., 71 F.3d 335; Fed. R. Evid. 803(6) Advisory Committee Note.

In Timberlake Construction, the plaintiff claimed that the

defendant insurer wrongfully denied insurance coverage. At

trial, plaintiff introduced several letters written by

plaintiff's president and by plaintiff's attorney containing

legal conclusions claiming the existence of insurance coverage.

The court of appeals reversed on the ground that the letters

were written in anticipation of litigation and therefore did not

fall within Rule 803(6).

However, an auditor's report prepared in anticipation of

litigation may also qualify as a business record.

In United States v. Frazier, 53 F.3d 1105 (10th Cir. 1995),

the defendant was convicted of falsely describing his use of government funds

on official forms. At trial, the Government admitted the report

of a government auditor as a business record. The defendant

objected that the report was prepared in anticipation of

litigation. The court found that the report was trustworthy

because the auditor prepared it pursuant to a contract with the

government, the auditor had ten years experience in preparing

that type of audit report and the auditor was a "neutral party"

who had "nothing to gain" from litigation against the defendant.

Edited by GDayMateAZ

Share this post

Link to post
Share on other sites

VII. Laying A Foundation

The lawyer seeking to admit the business record must, however, lay a foundation that the record was, in fact a business record.

A recent Seventh Circuit case discusses the requirement that a foundation be


In United States v. Adrianoros, 578 F.3d 703 (7th Cir. 2009),

the Government obtained the admission of a summary of telephone and bank records of the illegal activity.

The Government called a policeman to testify that he obtained records by serving a subpoena. The Government sought to admit the

records under FRE 1006, which allows a party to present, and enter into

evidence, a summary of voluminous writings, recordings or photographs. However, the Seventh Circuit held that

the records were improperly admitted because there was no testimony to

establish that the records were kept in the course of regularly conducted

business activity and there was no certification by the custodian of the

records. Thus, no foundation was laid.

VIII. Specific Types of Documents

1. Laboratory Reports

It is well established that a laboratory report identifying a substance as a narcotic is admissible as a business record because such reports are routinely prepared by government lab technicians.

United States v. Roulette, 75 F.3d 418 (8th Cir. 1996).

Additionally, in Roulette, the defendant argued that

under the Confrontation Clause, the government should be required to provide

proof of the unavailability of the lab technician when admitting the

report. The court disagreed reasoning

that the exception to the hearsay rule was "firmly rooted." Id.

See also Sherman v. Scott, 62 F.3d 136, 140-41 (5th Cir. 1995).

2. Computer Records

Computer business records are admissible if

(1) they are kept pursuant to a routine procedure designed

to assure their accuracy,

(2) they are created for motives that tend to assure

accuracy (e.g., not including those prepared for litigation), and

(3) they are not themselves mere accumulations of hearsay."

United States v. Hernandez, 913 F.2d 1506, 1512 (10th

Cir. 1990), cert. denied, 499 U.S. 908 (1991).

Computer records are thus treated no differently than other

business records.

VIII. Conclusion

The business records exception is commonly used to admit documents which contain hearsay declarations.

The rule presupposes

that a business has strong incentives to keep accurate records. Thus, it is difficult to resist the admission of a business record, unless the record was prepared in anticipation of litigation or its trustworthiness can be legitimately questioned.

Share this post

Link to post
Share on other sites

RE: Edward X. Clinton Commercial Litigation Law Blog on

I am not clear if this helps or hurts are business record argument.

Share this post

Link to post
Share on other sites
RE: Edward X. Clinton Commercial Litigation Law Blog on

I am not clear if this helps or hurts are business record argument.

I posted this information with the purpose to let people better understand

how Judges see JDB-Alleged Debtor arguments.

Judges would rather accept JDB Affidavit or Cutodian's testimony,

unless Alleged Debtor could break JDB's argument that

"it was the business entity's [JDB] regular practice to get information"

from the [OC] person who created the document".


For example, Midland's practice to get Providian/WAMU alleged debts' documentation thru Chase was not "regular practice".

It was some particular purchase activity that lasted just few months (end of 2008 - beginning of 2009).

Of course, I do NOT recommend people citing such cases like


which reversed original rejection of Custodian Testimony by lower court.

Edited by GDayMateAZ

Share this post

Link to post
Share on other sites

yeah that's a pretty old case. i'll see if i can dig it out the lexis database or westlaw.

as always, rootin for you

Share this post

Link to post
Share on other sites

tried to go out today but we're snowed in. my town is frozen

will try to go tomorrow or early this week, pending how soon we can get out of this snow

Share this post

Link to post
Share on other sites
tried to go out today but we're snowed in. my town is frozen

will try to go tomorrow or early this week, pending how soon we can get out of this snow


Thank you a lot for your Desire to Help !!!

Merry Christmas and Happy Collection/Litigation-Free New 2011 !!!

Share this post

Link to post
Share on other sites

i got the case for you.

illl try to post links for it in the next post so you can download. or you can message me your email address and i'll email you the full pdf file.

the pdf file has more than just the opinion.

Norm Advertising, Inc., v. Monroe Street Lumber Company,

25 WN.2D 391, 398

Supreme Court of Washington, Department One

COUNSEL: Harrison M. Berkey, for appellant.

Charles W. Gillespie, for respondent.

JUDGES: Steinert, J. Beals, C. J., Millard, Simpson,

and Mallery, JJ., concur.



[*392] [**178] This was an action for breach of a

contract wherein the defendant agreed to pay to the

plaintiff a specified sum of money, in installments, for a

series of copyrighted pictorial illustrations together with

certain advertising matter, all to be supplied periodically

by the plaintiff for use by the defendant during a term of

one year. Upon joinder of issue, the cause was tried to

the court without a jury. At the conclusion of plaintiff's

evidence, the defendant moved for a dismissal of the

action. The motion was denied. The defendant

thereupon, without producing any evidence of its own,

rested its case. The court rendered its decision in favor of

the defendant upon the evidence as adduced, and

thereafter made findings of fact from which it concluded

that the action should be dismissed with prejudice.

Judgment was entered accordingly and plaintiff appealed.

Appellant, Norm Advertising, Inc., is a New York

corporation and, as such, conducts an advertising [***5]

business which ramifies throughout the several states.

Under its method of operation, certain of its

representatives from time to time [*393] make surveys

of various types of business, and, with that information,

its artists prepare cartoons or pictorial illustrations

suitable and intended to attract the attention of the public

to the merchandise sold by concerns engaged in the kind

of business so surveyed. These pictorial illustrations,

when prepared, are copyrighted by the appellant. From

the original drawings prepared by appellant's artists,

"zincs" are made, and from these zincs impressions are

produced in the form of mats for prospective advertising

uses by the various merchants who may subscribe for

appellant's service.

Having made this preliminary preparation, appellant

sends its traveling salesmen throughout the country to

call upon mercantile concerns engaged in businesses of

Page 3

25 Wn.2d 391, *; 171 P.2d 177, **;

1946 Wash. LEXIS 402, ***1

the kinds previously surveyed, with the view of

interesting such concerns in the service which the

appellant has to offer. This service contemplates not only

the periodic delivery of a specified number of such

pictorial illustrations by the appellant to the subscriber,

for use by the latter [***6] in various advertising media,

but also the periodic preparation and delivery, by

appellant to the subscriber, of certain written advertising

matter, termed "write copy," to accompany the pictorial

designs. This "write copy" is based upon information

supplied by the subscriber upon a printed form furnished

by the appellant and termed an "analysis." The subscriber

is also permitted and encouraged to send in additional

information from time to time for the purpose of enabling

the appellant to prepare appropriate "write copy" during

the term of the particular subscription.

Respondent, Monroe Street Lumber Company, is a

Washington corporation, located in Spokane, and is

engaged in the building supply and fuel business.

[**179] On October 6, 1945, one Leslie M. W.

Neville, appellant's traveling solicitor and salesman,

called upon the respondent and explained to Mr. H. O.

Schumacher, president of the respondent company, the

nature of the advertising service furnished by the

appellant. The result of that conference [*394] was that

Mr. Schumacher signed a printed agreement, furnished

and filled in by the salesman, reading as follows:

"Norm Advertising, Inc.

79 Madison Avenue

[***7] New York, N. Y.

"Reserve for me Fifty-two copyrighted illustrations

and write copy, both as you think best, and grant me the

exclusive right to use same in advertising the builders

supply-Fuel business in newspapers and other media of

Spokane State of Washington only, during the term of

this agreement and any renewal thereof. Ship 4 or 5 mats

of the above illustrations monthly, F.O.B. New York, by

mail, beginning as soon as possible. Size of mats to be

about 1 or 2 columns wide.

"For the right to use the above illustrations and copy,

I/we agree to pay you at New York the sum of Three

hundred and twelve ____ /100 ($ 312.00) Dollars yearly,

payment for the first year to be made as follows:

Seventy-eight ____ /100 ($ 78.00) Dollars 10 days after

date of 1st shipment, Twenty-six ____ /100 ($ 26.00)

Dollars on the first of each month thereafter until the full

amount above stated has been paid. I/we agree to

reimburse you monthly for postage used in shipment.

"Fifteen days after failure to meet any of the

payments due, the whole amount remaining unpaid shall

become due and payable forthwith.

"The term of this agreement shall [***8] be for a

period of ONE YEAR from date of first shipment, and

shall continue in effect under the same terms and

conditions as stated herein until I/We notify Norm

Advertising, Inc., by registered mail to discontinue.

Payments for any additional period shall be made

monthly on the first of the month following date of

shipment at the rate of one twelfth of the annual charge

for the first year.

"Norm Advertising, Inc., agrees not to furnish

advertising service to any one else engaged in the above

business in the place or places designated above during

the term of this agreement or any renewal thereof so long

as there shall be no default by me/us and I/We agree that

the use of the above illustrations and copy, or any part

thereof, shall terminate with this agreement.

"I/We understand that I/We shall arrange for

publication in newspapers and other media and pay the

cost of same, and that Norm Advertising, Inc., assumes

no responsibility for cost or rate of publication.

[*395] "Neither party will be held responsible for

any provisions or representations not embodied in writing

herein and this contract is not subject to cancellation.

This agreement is subject to the acceptance of [***9]

Norm Advertising, Inc., at New York.

"Dated October 6, 1944

Name Monroe Street Lumber Co.

Per H. O. Schumacher, Pres.

(Official Title)

"Accepted at New York, N. Y.

By Norm Advertising, Inc.

Per Signa Ford

Share this post

Link to post
Share on other sites

Page 4

25 Wn.2d 391, *393; 171 P.2d 177, **178;

1946 Wash. LEXIS 402, ***5

Date October 9, 1944"

We have italicized those portions of the agreement

which were filled in by the salesman.

As appears above, the agreement was signed by

respondent through its president in Spokane, on October

6, 1944, and was accepted by the appellant in New York,

on October 9th.

At the time of signing the agreement, Mr.

Schumacher also signed and delivered to the salesman a

complete "analysis" of respondent's business, for use by

the appellant in preparing the "write copy" referred to


Appellant duly notified the respondent by mail from

New York that it had accepted the contract and that the

necessary advertising material would be sent forward as


Upon receipt of the first shipment of prepared mats,

respondent refused to use or keep them, but immediately

returned them to the appellant, with the statement that the

service did not comply with the representations [**180]

made by the salesman and that any further

correspondence in reference [***10] to the matter should

be conducted with respondent's attorney.

Respondent having refused to co-operate further in

the performance of the contract or to pay any part of the

contract price, appellant in February, 1945, instituted this

action to recover the full amount provided for in the


A preliminary question in the case is whether the

contract should be construed according to the laws of the

state of New York, as appellant contends, or according to

the [*396] laws of the state of Washington, as contended

by the respondent.

As appears from the provisions of the contract itself,

the instrument consisted of a written offer made by the

respondent in the state of Washington and an acceptance

thereof by the appellant in the state of New York; also,

the advertising matter was to be shipped by the appellant

to the respondent "F.O.B. New York"; and payments

were to be made by the respondent to the appellant in that


[1] The general rule is that [HN1] a contract is

considered as having been entered into at the place where

the offer is accepted or where the last act necessary to a

meeting of the minds or to complete the contract is

performed. 17 C. J. S. 813, Contracts, [***11] § 356.

Under that rule, the contract here involved must be

considered as having been made in New York.

[2] It is also the general rule that, [HN2] in the

absence of an agreement to the contrary, the law of the

place where the contract is entered into controls the

determination of the rights and liabilities of the parties.

This court has recognized that general rule. Carstens

Packing Co. v. Southern Pac. Co., 58 Wash. 239, 108

Pac. 613, 27 L. R. A. (N.S.) 975; Phoenix Packing Co. v.

Humphrey-Ball Co., 58 Wash. 396, 108 Pac. 952. Under

that rule, the law of New York, if properly shown, would

determine the rights and liabilities of the parties to the

present contract.

[3] In this case, however, appellant neither pleaded

nor proved the law of the state of New York. In such

situation, it must be presumed that the law of that state is

the same as that of this state. Walnut Park Lbr. & Coal

Co. v. Roane, 171 Wash. 362, 17 P. (2d) 896; In re

Barclay's Estate, 1 Wn. (2d) 82, 95 P. (2d) 393; Smaby v.

Shrauger, 9 Wn. (2d) 691, 115 P. (2d) 967. [HN3] While

chapter 82, p. 204, Laws of 1941 (Rem. Supp. 1941, §§

1278 to 1281), provides that the courts of this state

[***12] shall take judicial notice of the constitution,

common law, and statutes of every other state,

nevertheless § 1281, supra, requires that such laws be

pleaded, which was not done in this case.

[*397] In any event, the point raised is not material

here, for, in our opinion, the law of New York upon the

principal question in this case, hereinafter to be

considered, is the same as the law of the state of


[4] Before considering the principal question,

however, we shall give attention to another point raised

by the respondent. It contends that appellant cannot

recover in this action because it was not shown that the

pictorial illustrations furnished by the appellant were


Appellant's complaint pleaded the contract in haec

verba, showing that respondent contracted for

copyrighted illustrations, and then, in another paragraph,

pleaded specifically that appellant had made the required

initial shipment "in accordance with the agreement." In

its answer, respondent did not deny any of the allegations

Page 5

25 Wn.2d 391, *395; 171 P.2d 177, **179;

1946 Wash. LEXIS 402, ***9

of the complaint except those setting forth the

indebtedness; nor, in any of its six affirmative defenses,

did respondent raise any question whatever [***13]

suggesting that the pictorial designs had not been


Upon the issues as framed, appellant's evidence was

taken by deposition in New York. Its witnesses testified

that the first shipment of pictorial illustrations sent to the

respondent had been copyrighted, and that in fact all of

the designs prepared by it were likewise legally


When the depositions were introduced later at the

trial, respondent's counsel raised an objection that the

statements of the witnesses did not constitute the best

evidence of copyrights and that the official copyright

documents themselves should [**181] have been

offered by the appellant in its depositions. Respondent

also endeavored at the trial to amend orally its answer so

as to include a denial of any possessory copyrights by the


Under the circumstances of this case, we think the

objections and offer to amend came too late, and that the

respondent is bound by the admissions of its original

answer and its failure to raise opportunely an objection

which the appellant might readily have met.

[5] Approaching the principal question here

involved, we proceed upon the theory that the written

agreement [*398] [***14] presented in this case was

an executory contract, not an executed one. This view is

contrary to the contention made by the appellant and

accords with that made by the respondent. We act upon

that theory, however, for the reason that the contract

indicates, and the evidence of the appellant itself

establishes, that the agreement contemplated not merely a

license granted by the appellant to the respondent to use

copyrighted mats or illustrations together with written

advertisements, all previously prepared by the appellant,

but also the future preparation and delivery by the

appellant of certain advertising matter or "write copy,"

based upon respondent's original "analysis" and such

subsequent information as the latter should from time to

time supply. It was therefore not a contract solely for the

granting of certain rights to use material already in

existence, but a contract calling, in addition, for the future

performance of certain personal services, requiring skill,

on the part of the appellant during the prescribed term of

the contract.

Our inquiry next centers upon the outcome of the

contract. The complaint in the case alleged, and the

evidence established, that respondent [***15] repudiated

the contract. The trial court so held, and respondent does

not dispute that fact. The case is therefore one of breach

of contract, giving rise to an action for damages. As

stated above, the appellant sued for the full amount

stipulated in the contract. The trial court denied recovery

on the ground that appellant had not alleged nor offered

any proof of the damages sustained by it.

[6] [HN4] To state a cause of action ex contractu, it

is sufficient if the complaint shows the making and

existence of a valid and enforcible contract between the

parties; the right of the plaintiff and the obligation of the

defendant there-under; a violation of the contract by the

defendant; and the amount of damages resulting to the

plaintiff therefrom. Palmer v. Clark, 52 Wash. 345, 100

Pac. 749; Cruickshank v. Lich, 158 Wash. 523, 291 Pac.

485; 17 C. J. S. 1154, Contracts, § 533; 41 Am. Jur. 356,

366, Pleadings, §§ 95, 110.

[*399] Although in its complaint appellant did not

term the amount sued for as damages, it did allege

specifically the amount which it was seeking to recover.

In the words of the Cruickshank case, supra,

". . . the allegations [of the [***16] complaint] were

sufficient to advise the appellants [defendants] of the

nature and amount of the demand against them."

Under the foregoing rules, the complaint sufficiently

stated a cause of action for damages resulting from the

breach of the contract.

We come now to the principal question in the case,

namely, the amount of damages which the appellant is

entitled to recover upon the facts shown by the evidence.

[7] By proving the contract price, the appellant

made a prima facie case of the measure of its damages,

and the burden then rested upon the respondent to show

facts in mitigation of the damages claimed.

In Star Pub. Co. v. Knosher & Co., 62 Wash. 215,

113 Pac. 569, suit was brought by a publishing company

to recover the stipulated compensation provided for in a

contract for advertising space in a newspaper. The

evidence showed that after a certain date the

advertisement was not published, because of the

defendant's refusal to furnish the advertising material.

Share this post

Link to post
Share on other sites

Page 6

25 Wn.2d 391, *397; 171 P.2d 177, **180;

1946 Wash. LEXIS 402, ***12

The contentions made by the defendant in that case are

similar to those made by the respondent here. Answering

those contentions, this court said:

"The appellant [defendant] next suggests [***17]

that, if it breached the contract, its liability is limited to

the profit that would have resulted to the respondent

[**182] [plaintiff] from its performance, and that, the

respondent having failed to offer any evidence on that

subject, the judgment should have been against it. This

position is untenable, because the contract provides that,

in default of payment as stipulated, the respondent 'may

hold such space at advertiser's disposal for the full period

fixed, notwithstanding such default in payment, and

collect therefrom the full contract price;' or that, 'should

the advertiser fail to furnish copy as provided in the

contract, or should copy furnished not meet with the

approval of the Star Publishing Company, the [*400]

Star Publishing Company may continue to charge for

such space until new copy is furnished.' If any meaning is

to be given to the clause last quoted, it becomes evident

that the respondent reserved either of two options, viz.,

(1) to hold the space open, or (2) to utilize it for other

purposes for the breach stated, and in either event to

receive the compensation fixed by the contract. The

parties themselves have fixed the damages in case of a

breach [***18] of the terms of the contract, and it does

not lie with the court to change or vary it."

Proceeding further, the court made this statement,

which is particularly applicable here:

"However, [HN5] if we should adopt the view that

the profits of the contract are the measure of the

appellant's liability, the burden would be upon it, as in

contracts for personal services, to show the facts in

mitigation of damages, upon the ground that prima facie

the measure of damages is the contract price. Ware Bros.

Co. v. Cortland Cart & Carriage Co., 122 N. Y. 439, 85

N. E. 666; McDermott v. De Meridor Co., (N. J.), 76 Atl.


Accord: Arkley Lbr. Co. v. Vincent, 121 Wash. 512, 209

Pac. 690.

The rule thus expressed and adopted by this court is

in harmony with the great weight of authority. In 134 A.

L. R. 243, it is said:

"The overwhelming weight of authority is to the

effect that [HN6] in actions for damages arising out of

either breach of contract or tort the burden is upon the

party whose wrongful act caused the damages

complained of to prove anything in diminution of the

damages, or, in other words, that the damages were

lessened or might have been lessened by reasonable

diligence [***19] on the part of the aggrieved party."

See, also, 25 C. J. S. 791, Damages, § 144e; 15 Am.

Jur. 770, Damages, § 331.

This same question was squarely decided in a case in

which this present appellant brought suit upon a contract

in substance identical with the one involved here. Norm

Co. v. Cumberland Coal Co., 53 R. I. 228, 165 Atl. 592.

That was an action in assumpsit brought to recover for

the breach of a contract wherein the defendants were

given the exclusive right in certain territory to use a

means of advertising [*401] devised by the plaintiff.

The price agreed upon was to be paid in monthly

installments. The defendants did not use any of the mats

supplied by the plaintiff but repudiated its agreement.

The trial court directed the jury to return a verdict for the

plaintiff in the full amount of the contract. On appeal, the

only question involved was the measure of damages. In

its opinion affirming the judgment entered, the supreme

court of Rhode Island said:

"While it was the duty of the plaintiffs to minimize

the damages, it is apparent that this could be done only by

a resale of its services in the territory covered by the

contract. The burden is on [***20] the defendants to

show that the loss to the plaintiffs could have been

reduced by such resale. Brumbaugh System Inc. v.

Providence Live Poultry Co., 47 R. I. 39. There was no

error in the direction of a verdict for the plaintiffs."

We have exactly that situation in the instant case.

The judgment is reversed, and the cause will be

remitted to the superior court for the entry of judgment

for the full amount of damages as established by the


Share this post

Link to post
Share on other sites
this is the download link.

if you want i can email it to you, just pm me your email address

Norm Advertising, Inc., v. Monroe Street Lumber Company

25 WN.2D 391, 398


I successfully downloaded this case.

Thank you a lot

and Happy New Year !!!

Share this post

Link to post
Share on other sites

i just hope you prevail.

anything else i/we can do just let me know, i try to go to the library every friday to pull up cases that are hard to find through google scholar

happy new year

Share this post

Link to post
Share on other sites

The last week, Plaintiff's Atty filed the Motion to allow Midland's witness (Ashley Hoffman or Nancy Kohls) from St. Cloud, Minn. to appear telephonically.

After some thinking, submitted my objections, asking the Court to request them to appear in person ...

Share this post

Link to post
Share on other sites

when a person appears telephonically how do you verify that the person speaking is indeed the individual that is supposed to appear?

who pays for their expenses?

Share this post

Link to post
Share on other sites

1. when a person appears telephonically how do you verify that the person speaking is indeed the individual that is supposed to appear?

2. who pays for their expenses?

1. Good Question :-)

This Friday I'm going to attend two (JDB + OC) bench Trials.

I'll see how such verification works ..

2. Plaintiff, unless I lost.

Share this post

Link to post
Share on other sites

Case 1:09-cv-01656-RMC Document 55-1

on 39 pages, that I downloaded from Pacer.


Case No: 09-cv-01656-RMC

Hon. Rosemary M. Collyer




FEDERAL DEPOSIT INSURANCE CORPORATION,as receiver for Washington Mutual Bank;

J P MORGAN CHASE BANK, National Association;







Under the plain terms of that agreement [Purchase and Assumption

Agreement between the JPMC and the FDIC (the “P&A Agreement”)], by which, JPMC did not become WMB’s successor in interest.

Since its closure, the FDIC as receiver has controlled

WMB. While JPMC purchased all of the assets of WMB, it assumed only specified

liabilities: those that had been reduced to a dollar amount on WMB’s “general ledger and subsidiary ledgers and supporting schedules which support the general ledger balances.”

"JPMC respectfully submits that this Court’s order in North Carolina

Department of Revenue is entirely consistent with the conclusion that either

(i) JPMC did not assume the disputed liabilities or

(ii) if it were deemed to have assumed them, it did

not do so “expressly.” "


Share this post

Link to post
Share on other sites
This topic is now closed to further replies.