Anderson & Nafziger v. G. T. Newcomb, Inc.

Decision Date18 May 1979
Docket NumberNo. 12906,12906
Citation100 Idaho 175,595 P.2d 709
CourtIdaho Supreme Court
Parties, 27 UCC Rep.Serv. 21 ANDERSON & NAFZIGER, a partnership, Plaintiff-Counterdefendant, Appellant-Cross-Respondent, v. G. T. NEWCOMB, INC., an Idaho Corporation, and Pringle Manufacturing Company, a Washington Corporation, Defendants, and G. T. Newcomb, Inc., an Idaho Corporation, Defendant-Counterclaimant, Respondent-Cross-Appellant. G. T. NEWCOMB, INC., an Idaho Corporation, Cross-Claimant, v. PRINGLE MANUFACTURING COMPANY, a Washington Corporation, Cross-Defendant.

William A. Parsons of Parsons & Smith, Burley, for appellant-cross-respondent.

Jeffrey A. Strother of Moffatt, Thomas, Barrett & Blanton, Boise, May, May, Sudweeks & Shindurling, Twin Falls, for respondent-cross-appellant.

DONALDSON, Justice.

On February 11, 1974, Anderson & Nafziger (plaintiff-appellant) (buyer) and G. T. Newcomb, Inc. (defendant-respondent) (seller) entered into a written contract whereby buyer ordered three pivots (circular sprinkling systems) from seller. The written agreement contained on its back several broad disclaimers of liability by seller. Buyer alleged that seller orally promised delivery of the pivots by the middle of May 1974. However the written contract gives no designated date for delivery and seller argues that there was no promised delivery date.

Approximately ten days after the original written contract was entered into, buyer claims it telephoned seller and ordered a fourth sprinkler. A purchase order form was written up by seller, however it was never signed by any representative of the buyer.

Because of delays in obtaining gear boxes necessary for the operation of the pivots from the manufacturer, seller did not deliver fully operational sprinklers to buyer by the alleged promised date of May 15. The record is unclear as to when fully operational sprinklers were ever actually installed at the buyer's farm.

Buyer brought this action alleging that as a result of the breach of the alleged agreement to make delivery by May 15, 1974, they suffered $75,000 worth of crop loss. It should be noted that the crop loss of which buyer complains was partially from previously uncultivated land.

Seller moved for summary judgment on the ground that the agreement contained disclaimers of liability by it for any crop loss caused by failure to make proper delivery of the equipment. The trial court granted partial summary judgment in favor of seller dismissing buyer's cause of action based upon the written contract for the three pivots. The trial court based the granting of partial summary judgment solely on the exculpatory clause contained on the back of the signed order form. The clause reads as follows It is hereby understood and agreed that all work ordered hereunder is precarious and uncertain in its nature, and all pulling of pumps, reinstalling pumps, repair work, alterations, well work, sand pumping, corrections, or other work herein specified, etc., shall be strictly at the Purchaser's risk. The Seller will not be liable for damage of any kind, particularly including loss or damage for diminuation or failure of crop, shortage of water, inability or failure to supply same, or for diminuation or cessation of water flow; nor shall the Seller be liable for any damages or delays of any kind on account of sticking of pump in the well in any position, either when being pulled out or being reinstated nor shall the Seller be liable for any damages on account of delay in making repairs or installing by virtue of some defect in the well, or by virtue of the well not being in condition to receive the machinery, or by virtue of unforeseen or changing conditions in the well or in or about the premises on which the well is located.

The court did not grant summary judgment as to the fourth pivot because the sales contract evidencing the sale was not signed by either party and the oral agreement between the parties did not refer to liability for crop damage. Buyer appeals from the partial summary judgment dismissing its cause of action based upon the alleged breach of contract by seller in failing to make timely delivery of the three pivots. Seller cross appeals arguing that the trial court should have granted summary judgment as to the fourth pivot because the sales contract was substantially the same as that for the original three pivots. We affirm in part, reverse in part and remand.

I

We find that the trial court erred in granting partial summary judgment in favor of the seller based on the above exculpatory clause.

It is a general rule of this state and the majority of American jurisdictions that a party may contract to absolve himself from certain duties and liabilities under a contract subject to certain limitations. Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970). However, it is nevertheless well established that courts look with disfavor on such attempts to avoid liability and construe such provisions strictly against the person relying on them, especially when that person is the preparer of the document. American Automobile Insurance Co. v. Seabord Surety Co., 155 Cal.App.2d 192, 318 P.2d 84 (1958); Talley v. Skelly Oil Company, 199 Kan. 767, 433 P.2d 425 (1967); Walker Bank & Trust Company v. First Security Corp., 9 Utah 2d 215, 341 P.2d 944 (1959). Clauses which exclude liability must speak clearly and directly to the particular conduct of the defendant which caused the harm at issue. Valley National Bank v. Tang, 18 Ariz.App. 40, 499 P.2d 991 (1972); Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 518 P.2d 372 (1974); Walker Bank & Trust Co. v. First Security Corp., supra.

Seller contends the clear language of the clause exempts the seller from liability for crop loss. However, such broad exculpatory language should not be isolated from the context of the clause in which it appears. A reading of the total clause indicates that the clause is aimed at limiting the seller's liability for crop loss which is caused by installation or repair work done by seller. It is clear that the express terms of the clause do not speak clearly and directly to the particular acts of the seller which buyer complains of. Buyer's claim for relief is based solely on the failure of the seller to make timely delivery. It would require a strained interpretation to hold that exclusion of liability for crop loss caused by failure to make timely delivery of equipment was contemplated by the language of this clause.

Seller's reliance for support of his position on the cases of Rawlings v. Layne & Bowler Pump Co., supra, and H. J. Wood Co. v. Jevons, 88 Idaho 377, 400 P.2d 287 (1965), wherein we interpreted a similar clause as excluding liability for crop loss, is misplaced. Both cases involved causes of action based on negligent repair or installation and as such were within the express language of the clause excluding liability for crop loss. We are not presented with a similar situation in the instant case. We hold that the clause is inapplicable to the present action and therefore the trial court erred in granting summary judgment in reliance thereon.

II

Seller sets forth various alternative grounds for upholding the trial court's granting of summary judgment partially dismissing buyer's claim for relief. This Court has generally held that where an order of a lower court is correct but is based upon an erroneous theory, the order will be affirmed upon the correct theory. Robison v. Compton, 97 Idaho 615, 549 P.2d 274 (1976); Lemmon v. Hardy, 95 Idaho 778, 519 P.2d 1168 (1974). We therefore review the theories advanced by seller in order to determine if they provide a basis for upholding the trial court's granting of partial summary judgment.

Seller initially argues that since buyer's claim for relief is predicated on the failure of seller to make delivery of the pivots by an agreed upon delivery date it is incumbent on buyer to introduce evidence that establishes such a date. It is the position of seller that the written and signed agreement in question, which contains no representation as to a promised delivery date, is complete on its face, that parol evidence may not be admitted to vary or supplement the terms stated therein, and therefore no breach could have occurred which is provable in a court.

The transaction in the instant case clearly involves the sale of goods as defined in I.C. § 28-1-105 and as such is within the scope of the Uniform Commercial Code. I.C. § 28-2-102. Idaho Code § 28-2-202, the relevant code section concerning parole evidence, reads as follows:

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented

(a) by course of dealing or usage of trade (section 28-1-205) or by course of performance (section 28-2-208); and

(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

This section of the Uniform Commercial Code as adopted in Idaho permits the introduction of parol evidence to explain or supplement through evidence of consistent additional terms, unless the court finds the writing was intended also as a complete and exclusive statement of the terms of the agreement (total integration). MacGregor v. McReki, Inc., 30 Colo.App. 196, 494 P.2d 1297 (1971); Glenn Dick Equipment Co. v. Galey Construction, Inc., 97 Idaho 216, 541 P.2d 1184 (1975); Massey-Ferguson Credit Corp. v. Brown, 169 Mont. 396, 547 P.2d 846 (1976). The initial question is whether the evidence concerning the alleged delivery constitutes evidence of "consistent additional terms." In...

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