incorporated by reference

Plaintiffs acquired ownership of the real property located in San Francisco on or about July 10, 1961, from defendants Nicholas Kotoff and Nell Kotoff. Defendant George Savage, a real estate broker, represented the sellers in the transaction. The sale was memorialized in a uniform agreement of sale and deposit receipt, attached to the complaint as Exhibit 1. This document acknowledged receipt of $1,000 toward a $21,000 purchase price for the property in its present state and condition. It contained a provision stating that no representations, guaranties or warranties of any kind or character have been made by any party hereto, or their representatives which are not herein expressed. Savage was to receive a commission of $1,000 from the sellers for his services. The complaint filed on February 13, 1962, alleged that the defendants knew at the time of the sale that the building was in a state of disrepair, that the units contained therein were illegal, and that the building had been placed for condemnation by the proper officials of San Francisco. The plaintiffs did not know these facts. They did not discover them until November 1961. The defendants willfully and fraudulently failed to reveal the information. The plaintiffs purchased the property justifiably relying on the nondisclosure in the belief that the property was in legal tenantable and properly repaired condition as required by law. The complaint sought $5,000 in general damages and $10,000 in punitive damages based on the claim that the actual market value of the property was $5,000 less than it would have been in the condition as represented. Defendant Savage filed a demurrer. The demurrer asserted that the complaint failed to state facts sufficient to constitute a cause of action. It also asserted that the complaint was ambiguous, unintelligible and uncertain. The demurrer specifically attacked the legal sufficiency of the facts pleaded on the ground that the exhibit showed the plaintiffs had offered to purchase the property in its present state and condition with no unexpressed representations. The trial court sustained the demurrer without leave to amend and entered judgment in favor of Savage. Plaintiffs appealed from the judgment entered after the sustaining of the demurrer without leave to amend.

Frigaliment Importing Co., a Swiss corporation, contracted on May 2, 1957, with B.N.S. International Sales Corp., a New York sales corporation, for the sale of US Fresh Frozen Chicken, Grade A, Government Inspected, Eviscerated. The first contract required 75,000 lbs. of 2½-3 lbs. birds at $33.00 per 100 lbs. and 25,000 lbs. of 1½-2 lbs. birds at $36.50 per 100 lbs., scheduled for May 10 shipment FAS New York. The second contract called for 50,000 lbs. of the heavier birds and 25,000 lbs. of the lighter at $37.00 per 100 lbs., scheduled for May 30. Negotiations were conducted in New York between defendant's secretary Ernest R. Bauer and Mr. Stovicek, who was in New York for the Czechoslovak government. A cable from plaintiff dated April 26, 1957, announced they were buyers of 25,000 lbs. of chicken 2½-3 lbs. weight at a price up to 33 cents per pound for shipment on May 10. Bauer accepted after testing the market, and Stovicek sent a confirmation that evening, with subsequent cables using the English word "chicken" despite being predominantly in German. The initial shipment under the first contract arrived in Switzerland on May 28, revealing that the 2½-3 lbs. birds were stewing chicken or fowl, with many cartons so labeled. Protests followed, but the second shipment of similar larger birds was made on May 29 and stopped by defendant at Rotterdam. This action for breach of warranty ensued in the United States District Court for the Southern District of New York. Plaintiff offered testimony from trade witnesses asserting that "chicken" meant broilers and fryers, along with market reports distinguishing chicken from fowl. Defendant presented witnesses stating that chicken encompasses all classifications and pointed to Department of Agriculture regulations listing the classes including hen or stewing chicken or fowl. After the first shipment, plaintiff sent cables on May 28 complaining the larger birds constituted fowl, and defendant responded refusing to recognize the objection while offering to ship the second contract goods. Plaintiff confirmed shipment on May 29 while insisting the merchandise must be as per contract.

In 1987, William Robert Miller, a resident of Mississippi, moved to Pennsylvania to seek employment. He was hired by American Dredging Company, a Pennsylvania corporation with its principal place of business in New Jersey, to work as a seaman aboard the MV John R., a tug operating on the Delaware River. During the course of that employment Miller was injured. After receiving medical treatment in Pennsylvania and New York, he returned to Mississippi where he continued to be treated by local physicians. On December 1, 1989, Miller filed this action in the Civil District Court for the Parish of Orleans, Louisiana. He sought relief under the Jones Act, which authorizes a seaman who suffers personal injury in the course of his employment to bring an action for damages at law. State and federal courts have concurrent jurisdiction over such claims. Miller also requested relief under general maritime law for unseaworthiness, for wages, and for maintenance and cure. The trial court granted American Dredging Company's motion to dismiss the action under the doctrine of forum non conveniens, holding that it was bound to apply that doctrine by federal maritime law. The Louisiana Court of Appeal for the Fourth District affirmed. The Supreme Court of Louisiana reversed, holding that Article 123(C) of the Louisiana Code of Civil Procedure, which renders the doctrine of forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts, is not preempted by federal maritime law. American Dredging Company filed a petition for a writ of certiorari, which the United States Supreme Court granted.