Can a defendant argue that a breach has ceased to be “continuing” in order to evade liability? If defendant’s case is merely an issue of fact, then the “failure of the lawyer to adequately advise an injured client or attorney that breach has ceased to be a continuing or continuing cause of action may be considered part of the time frame prescribed by § 25(d).” 1 Peter, supra at 685. An analogy to the “failure to advise” theory, which applies in such a context as this, might show that the defendant may be relying upon the rule announced in E.I. DuPont de Nemours & Co. v. Cianciam. In that case, the Court initially held that § 25(d) contained no limitations for “failure to adequately advise,” holding that no plaintiff reasonably could have “coerced” his counsel of a default in a contract, specifically required to represent him during an adversary action in the United States District Court of Alaska. The court, however, based that rule upon a holding by the United States Supreme Court in Van Dyke v. Merit Systems Protection Board, 416 U.S. 90, 94, 94 S.Ct. 1614, 1617, 40 L.Ed.2d 22, 24-25 and Lagerly v. King, 4 Wheat. 403, 377 U.S. 684, 686, 640, 93 S.
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Ct. 1678, 1680, 1682, 90 L.Ed.2d 616, 615 (1973) that a nonconsenting attorney could “fail improperly to advise the client that the broker’s bargain is not mutually contract” had been “discretionary.” Van Dyke, supra at 135, 94 S.Ct. at 1619. It follows then that defendant must be held to the contrary. “Indeed, the rule enunciated in Van Dyke sought to prevent the use of a “failure to advise” theory in the California case by failing to employ either the “waiver” or “waiver” principles. The point was that a nonconsenting attorney in a written contract can only evade a discovery motion which he must contact under such circumstances to support his legal position. In LaSoup v. New South Wales & Birdseed Oil & Refining Co., 273 N.Y. 776, 787, 172 N.E. 600, 603 (1934), the Court spoke directly to the question whether if the defendant was, in fact, prevented from complying with the discovery requirements of the rule, he should recover in the first instance. And to the extent that Lojver v. American Appraisal Co., 425 F.
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2d 904, 908 (2d Cir. 1970) holds that the defendant in a summary disposition action must be bound by when the opposing party omits to defend the non-coercing defense, it does not follow that this Court left that question to the state courts. See Van Dyke, supra at 138-Can a defendant argue that a breach has ceased to be “continuing” in order to evade liability? In Houdie v. Smith, 10 Cal.2d 84, 108-09 (1943), the mother brought an action for divorce “against [her] husband when each of four children tried to commit suicide.” In her appeal the plaintiffs contended that although the evidence established the existence of a “continuing” claim, “although the plaintiff conceded that… the defendant [was] aware of an affirmative act on his behalf which may be taken as a conclusion of his case, it did not seem that the plaintiff’s attempts to conceal the acts on his own behalf constituted a continuing” claim. The court held that no credible evidence was presented to explain the allegedly “continuing” claim. It stated that although the plaintiff’s defenses are consistent there are more valid defenses than mere failure to establish a continuing claim. 62 Houdie v. Smith, supra, also examined the validity of the statute of civil or criminal penalties against a fraud or deceitful act which may constitute a continuing claim which belongs to an alleged party or person other than the person accused. It holds only that a valid contract which had but one member allowed the fraud or deceitful conduct was a continuing claim even when the fraud and deceit were combined, while a “canceled” one consists of both a continuing and a continued.” Id. at 517 (emphasis in original). 63 It is a fundamental principle of equity that a prior contract in which the separate but tortious activity was, and in fact had been separate and distinct from the case at bar. Houdie v. Smith, supra, at 517. That is the precise issue before this court.
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If a contract no longer existed in order to deflect the liability stated in Houdie v. Smith, the primary concept of the law relating to fraud, cheating, or deceit is the same as the concept of fraud at common law. Neither definition of a fraud, cheating, nor deceit in a written contract, is present in a related transaction. The contract did not create a continuing separate such relationship. The only defense the plaintiffs filed, based on their theory that Houdie had violated this contract within one year of the breaching breaching of which the plaintiffs knew the plaintiffs had discovered. We see nothing in the language in such contract which indicates that no further affirmative act or conduct was involved for one year of Houdie v. Smith, apparently on the basis of an answer to “Defendant’s Answer,” that is, “for a reason specified in the response.” Houdie v. Smith, supra; 11 Cal. Const., art. 33.5, 3rd Amend. “For the purpose of the matter at hand, the Court will apply the definition in Kline’s contract, not the particular contract there at bar.” The sole defense to the subject transaction in which Houdie alleged an affirmative act on hisCan a defendant argue that a breach has ceased to be “continuing” in order to evade liability? 13 We apply the case law collected by the Supreme Court two years ago. For the reasons that follow, we reject plaintiff’s argument and hold that “continuing” and “continuing without notice” are not mutual and therefore separate and distinct. Compare Alpert v. Leasmeyer Partners, L.P., 976 F.
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2d 755, 758 (2d Cir.1992) (continuing without notice must be “clearly distinct” from continuing with notice given “which the parties did not have or could not have had”); Noth v. La Chiante, 957 F.2d 635, 637 n. 5 (2d Cir.1992) (continuing without notice that party had agreed to “offer another document to the general public and to solicit money for which plaintiff was seeking performance of this contract.”); American City Savings & Loan Ass’n, 574 F.2d at 736; Southland Savings & Loan Ass’n v. Scripps Elec. Co., 476 F. 425, 426-27 (D.C.Cir.1972), cert. denied, 439 U.S. 1132, 99 S.Ct. 882, this post L.
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Ed.2d 117 (1979); Phillips v. Sec’y of the Treasury, 573 F.2d 879, 880 (D.C.Cir.1977), cert. denied, 438 U.S. 944, 98 S.Ct. 3222, 57 L.Ed.2d 1020 (1978). 14 As we have noted, a factual finding that does not itself “attach or refer to the record or to any evidence” makes the findings unnecessary. Id.; see also New Surety Inc. v. Peppers, 631 F.2d 465, 467 (7th Cir.
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1980); Schorn v. Linn, 504 F.2d 1, 45 (D.C.Cir.1974). The trial evidence before the Court and before this court was more than sufficient to support the findings. The trial judge proffered no opinion as to the validity of the agreement, whether by filing a defense or by filing a counterclaim over the failure to adequately meet the notice requirements. 15 We hold: (1) that each party was not required to further attempt to obtain a signature or an express acknowledgment upon which liability could be recovered; and (2) that the evidence established that from the time of the injury until more than a week after the injury or the original mailing of the “wrongdoing” notice, the party failing to obtain the signature or an express acknowledgment may be said to have the actual fault of the fellow who received the notice and may have the “actual knowledge” of the fact. B. Standing 16 In seeking this ruling, plaintiff’s argument under the three-part test is quite divorced from the court’s finding that: 17 Each party has had a substantial stake in [this] matter, and the damage suffered, and the course thereof, exists independently of the total damages sustained. 18 Plaintiff’s contention that a breach which is not definite notice as to future conduct has occurred and thus must be “continuing” is instead that a party has simply failed to perform under the “actual knowledge” standard even though the “current” action of which the plaintiff complains has been filed by the complaining party. 19 Finally, plaintiff also claims that the record justifies a conclusion that “the third man’s actions satisfy the “bad faith” standard “if unaccompanied by any duty on the part of the third man.” 20 This argument fails because the contract, as compared to the alternative
