Major v. Bishop

10 Citing cases

  1. Brooks v. Lexington-Fayette Urban County

    132 S.W.3d 790 (Ky. 2004)   Cited 238 times
    Holding that punitive damages were not an available remedy under K.R.S. § 344.450

    For example, if one uses the annotation to FIRE 406 as a guide, evidence regarding custom and usage in a particular industry is admissible evidence under the rule to assist the trial court to determine the meaning of an ambiguous contract. See Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). Likewise, the annotation points to evidence of custom and practice within a particular industry, group, or organization as being admissible under the rule as evidence "bearing on the standard of care in determining negligence."

  2. Collins v. United States

    708 F.2d 499 (10th Cir. 1983)   Cited 4 times

    A release is ambiguous if it is fairly susceptible to more than one meaning. See Vickers v. North American Land Developments, Inc., 94 N.M. 65, 607 P.2d 603, 606 (1980); Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). In holding that the release was unambiguous, the district court relied on the similarity of the language of this release to the release in Johnson v. City of Las Cruces, 86 N.M. 196, 521 P.2d 1037, 1037-38 (Ct.App. 1974).

  3. Group W Cable, Inc. v. City of Santa Cruz

    669 F. Supp. 954 (N.D. Cal. 1987)   Cited 10 times
    Recognizing city's interest in minimizing physical disruption that could occur if cable operator lacked financial resources

    "A contract is deemed ambiguous only if it is reasonably and fairly susceptible of different constructions." Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). The enumerated provisions, read together, are susceptible of only one interpretation.

  4. In re Musick Const., Inc.

    34 B.R. 105 (D. Colo. 1983)   Cited 1 times

    A party is not bound by custom and usage without actual knowledge of it or unless it is so general or well known in the community as to give rise to a presumption of such knowledge. Edward E. Morgan Co. v. United States, 230 F.2d 896 (5th Cir. 1956); Major v. Bishop, 462 F.2d 1277, 1280 (10th Cir. 1972) (must have "ample" evidence to support knowledge of custom and usage). Defendants have failed to show knowledge on the part of the debtor of the custom in Montrose County of acquiring gravel only when it is paid for and hauled away. Without such a showing, custom and usage cannot be used to supply provisions with respect to which the written instrument is silent.

  5. Taylor v. Beech Aircraft Corp.

    407 F. Supp. 69 (W.D. Okla. 1976)   Cited 6 times
    In Taylor, the court found that there was a jury issue as to the parties' intent, and thus as to the scope of the release, even through the release on its face was unambiguous.

    Language in an instrument is unambiguous only if it is reasonably and fairly susceptible to but a single meaning. Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972). The context is a motion for summary judgment and the court is obligated to view the facts and factual inferences in a light most favorable to the non-movant and most favorable to the existence of triable issues.

  6. International Environmental Corp. v. International Tel.s&sTel. Corp.

    397 F. Supp. 253 (W.D. Okla. 1975)   Cited 3 times

    A contract is deemed ambiguous only if it is reasonably and fairly susceptible of different constructions.' Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). Reading the disputed words in the context of the whole agreement, it cannot be said they are susceptible of a requirements contract construction.

  7. Gardner-Zemke Co. v. State

    109 N.M. 729 (N.M. 1990)   Cited 45 times
    Holding that summary judgment is proper if the facts are not in dispute, and only their legal effects remain to be determined

    A disagreement over the meaning of specifications does not necessarily indicate an ambiguity — the contractor's interpretation must be reasonable and the contract must be fairly susceptible to different constructions. See Levenson, 106 N.M. at 401, 744 P.2d at 176; see also Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972). To be reasonable, an interpretation must be consistent with the contract language: the language of the entire contract must be considered, and selected portions cannot support a claim of ambiguity.

  8. Elephant Butte Resort Marina v. Wooldridge

    102 N.M. 286 (N.M. 1985)   Cited 25 times
    Recognizing "that a contracting party may repudiate his performance of the contract if the satisfaction of a condition precedent as to financing is not met."

    NMSA 1978, § 55-2-723(2). See also NMSA 1978, § 55-2-202 (terms may be explained or supplemented); Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972) (consideration of custom and usage in the trade under § 55-2-205); Bowlin's, 99 N.M. at 671, 662 P.2d at 672 (Ct.App. 1983). The only term that cannot be supplied by the court is the quantity term.

  9. Vickers v. North Am. Land Developments

    94 N.M. 65 (N.M. 1980)   Cited 83 times
    Noting that a contract is ambiguous only "if it is reasonably and fairly susceptible of different constructions"

    A contract is deemed ambiguous only if it is reasonably and fairly susceptible of different constructions. Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972). The mere fact that the parties are in disagreement on the construction to be given does not necessarily establish ambiguity.

  10. Blue Rock Industries v. Raymond International, Inc.

    325 A.2d 66 (Me. 1974)   Cited 43 times

    The phrase itself is reasonably and fairly capable of different constructions, and it is, therefore, ambiguous. See Major v. Bishop, 1972, 10 Cir., 462 F.2d 1277. In addition to an examination of the express terms of an agreement, the Code also encourages resort to course of performance ( 11 M.R.S.A. § 2-208), course of dealing ( 11 M.R.S.A. § 1-205), and usage of trade ( 11 M.R.S.A. § 1-205).