So Mrs. Bombay and I were at a wedding this weekend in Philadelphia, and stopped off for a drink with some friends for a drink. The selected venue was an establishment called The Continental, which holds itself out to be a martini bar. I sat down and ordered a pair of “Dirty Goose Martini’s, Straight Up.” What I should have received was a Grey Goose Vodka martini, made with olive brine instead of dry vermouth. What I got was a warm glass of vodka, sans brine, which cost me $12. In thinking about it since, I’ve convinced myself that the problem was one of construction. The glass was not chilled prior to pouring in the contents of the shaker, which doomed it.
Now I know some of you are going to think it cowardly for me to slam this restaurant anonymously after the fact, or wondering why I just didn’t send the drink back. I think the answer is that I’m a coward who likes to stew about things. But I’ve also been fascinated by the notion of the drink order as an implied contract, and remedies available to me for a violation thereof.
Growing up in D.C., there was always this story (that I considered apocryphal) about the now defunct Blackie’s House of Beef. On the menu of this legendary steakhouse, it clearly stated “We do not serve Coca Cola Products.” The story goes that a traveling representative of the company ordered a “Rum and Coke” but was served a Rum and Pepsi instead. He detected the difference, and the Coca Cola promptly sued Blackie’s, winning a judgment based on the claim that “Rum and Coke” was a specific combination of products, and that he did not get what he had contracted for in his order.
So my question is, when I order a “Dirty Goose Martini’s, Straight Up,” have I entered into an express oral contract with specific points of performance? Do I have a cause of action if the drink is lousy? And though not mutually exclusive, is it possible that I’m just a jerk?
While I must admit bias in terms of thinking highly of the good Doctor on a personal level, I feel it important to my sense of duty as a witness to add to the testimony that the drinks were, indeed, dissapointing on several performance points - particularly from a martini bar. Having worked in the food service industry I often find myself unable to voice a complaint, as I recognize the daily variations that occur in such esablishments, and the general harrassment that such staff may face on a daily basis. That said, I realize now, hindsight being 20-20, that we were within our rights to request an adjustment to our cocktails, if not a new version of said cocktails.
We now see who wears the pants in this relationship. The Good Doctor frets about whether he had a cause of action and Goody simply says we should have manned up and gotten new drinks.
No argument from me. It’s her home town, so I think she sould take the lead in all beverage related disputes.
Do you waive your right to rescission by not sending it back?
Anonymous:
Yes. Substantial performance (in the act of keeping the drink and, presumably, drinking it) would waive the good Doctor’s right to rescind. This action would, in essence, affirm the bargain made with the bartender and constitute an action granting the legitimacy of the bargain.
But wouldn’t the doctor still be able to sue of the difference between the drink he ordered and the drink he got, otherwise he did not receive the benefit of his bargain
I think I do, and the Blackie’s lesson is instructive. If the representitive from Coke didn’t specify the booze (just the mixer) and still had a cause of action for not receiving the benefit of the bargain, I certainly would have one for not getting the right mixer and having it made like crap.
But the issue was whether Dr. Bombay has waived his right to rescission (though I admittedly muddied the water by introducing the “benefit of the bargain” terminology). Once he keeps the drink he has substantially performed. At that point, he can sue for damages, but not rescission.
What about rescission as an equitable remedy?