results because the surgery disfigured and deformed her nose, she sued for breach of a contract toimprove her appearance. The jury found in her favor and awarded damages for expenses and for painand suffering. The case was elevated to the Supreme Judicial Court of Massachusetts.ISSUE: Was there a breach of contract to improve appearance?ANSWER: Yes.CONCLUSION: The Court held that the patient could bring a breach of contract action against herdoctor because he made promises of a specific outcome, and that pain and suffering beyond thatcontemplated were compensable. In an action by a professional entertainer against a surgeon forbreach of a contract to improve the appearance of the plaintiff's nose in two operations, the plaintiffwas entitled to recover not only her out of pocket expenses, but also for worsening of the appearanceof her nose by the surgery and for pain and suffering and mental distress involved in a third operation.
2. Contractual Assent & the Objective Test a. Objective standard for determining Assent The law has nothing to do with the actual state of the parties’ minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct. What is essential is not assent, but rather what the person to whom a manifestation is made is justified as regarding as assent. Morales v. Sun Constructors Inc. [modern court still focus on objective evidence] FACTS: P was employed by D, the employment agreement contained an arbitration clause but it is in English which Morales did not understand. HOLDING: There is no evidence that Sun tried to hide the arbitration clause; indeed, it comprised about one-half of the Agreement. It was Morales’ obligation to ensure he understood the Agreement before signing. Morales did not ask Hodge to translate the document word-for-word or ask to take the Agreement home and have it translated, notwithstanding the fact that he testified that, in the past, he had paid someone to translate documents for him. Morales did not even request a copy of the employment contract, a demand Sun has indicated it would have granted without dispute. Moreover, in the almost one year that Morales worked for Sun, he never questioned the terms of the Agreement. Morales’ signature manifested his assent to the entire Agreement, and he is bound by the arbitration clause therein SR International ISSUE: Whether subjective evidence should have been admitted to supplement to the objective evidence of what was intended by the parties. No contradiction between objective and subject evidence.--- no influence. HELD: A party’s intent that is not communicated to the other party has no bearing; only the intent indicated by words and acts that are made known to the other party may be considered. You may recall that I permitted some witnesses to testify about their own understanding and assumptions about certain events even though they did not communicate those understandings and assumptions to another party. That testimony was received only to help explain the witness’s own actions and
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- Summer '11