Geo. C. Christopher & Son, Inc. v. Kansas Paint & Color Co., Inc., 47364

• Decision Date: 15 June 1974
• Docket Number: No. 47364,47364
• Citation: 523 P.2d 709,215 Kan. 185
• Parties: , 14 UCC Rep.Serv. 1256 GEO. C. CHRISTOPHER & SON, INC., Appellee, v. KANSAS PAINT & COLOR CO., INC., Appellant.
• Court: Kansas Supreme Court

Page 709

523 P.2d 709

215 Kan. 185, 14 UCC Rep.Serv. 1256

GEO. C. CHRISTOPHER & SON, INC., Appellee, v. KANSAS PAINT & COLOR CO., INC., Appellant.

No. 47364.

Supreme Court of Kansas.

June 15, 1974.

Rehearing Denied Aug. 5, 1974. See 525 P.2d 626.

Syllabus by the Court

1. In an action based on the sale of goods for a particular purpose there is an implied warranty that the goods shall be fit for such purpose. (K.S.A. 84-2-315.)

2. To exclude or modify an implied warranty of fitness for a particular purpose by a disclaimer the disclaimer must be by a writing and conspicuous. (K.S.A. 84-2-316(2).)

3. It is a question of law for the court whether a disclaimer is conspicuous. (K.S.A. 84-1-201(10).)

4. An implied warranty for a particular purpose may be excluded or modified by course of dealing or course of performance or usage of trade. (K.S.A. 84-2-316(3)(c).)

5. To utilize a disclaimer as a basis for excluding an implied warranty of fitness for a particular purpose or to utilize a disclaimer as a basis for a course of dealing which modifies an implied warranty of fitness for a particular purpose, such disclaimer must be brought to the attention of the purchaser before or at the time the contract is made.

6. Even though a disclaimer may be utilized as the basis for a defense of course of performance after the time the contract was made the disclaimer must be by a writing and conspicuous.

7. A disclaimer which appears on an invoice in smaller type than other information shown thereon, appears in black as does the other information thereon, and discloses nothing to direct attention to the disclaimer, is not conspicuous.

8. A disclaimer that is not conspicuous cannot be used as a basis for claiming an implied warranty has been excluded or as a basis for claiming an implied warranty has been modified by a course of dealing or a course of performance.

9. Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. (K.S.A. 84-2-204(3).)

10. Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. (K.S.A. 84-2-317(c).)

11. The object of sending exhibits to the jury is to enable the jurors to make a more thorough examination of them than it was possible to make when the exhibits were offered in evidence.

12. An experiment or demonstration is proper when conducted by the jury with the use of exhibits properly submitted to it for the purpose of testing the truth of statements made by witnesses or duplicating tests made by witnesses in open court.

13. In an action to recover for breach of an implied warranty to furnish a suitable paint to prime steel, the record is examined and it is held: The trial court did not err (1) in overruling defendant's motions for judgment and for a directed verdict; (2) in instructing the jury; (3) in failing to admit certain exhibits in evidence; and (4) in failing to grant a new trial for misconduct of the jury.

Gerald Sawatzky, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and Robert C. Foulston, Wichita, was with him on the brief for the appellant.

Milo M. Unruh, of Arn, Mullins, Unruh, Kuhn & Wilson, Wichita, argued the cause and Richard H. Price, Jr., Wichita, was with him on the brief for the appellee.

OWSLEY, Justice:

This action was based on the breach of an implied warranty to furnish a suitable paint to prime steel. In a jury trial the plaintiff prevailed, resulting in an appeal by defendant. The principal issue on appeal involves a construction of the rules relating to sales as set forth in the Uniform Commercial Code. (K.S.A. Chapter 84, Article 2.)

Plaintiff is a structural steel fabricating company with its plant in Wichita, Kansas. For many years plaintiff has purchased primer paint from defendant, a paint manufacturer and seller, for use in its structural steel fabricating business.

Plaintiff first heard of a C5A hangar construction project at Altus Air Force Base, Altus, Oklahoma, from the Penner Construction Company of Denver, Colorado. Penner desired plaintiff's assistance in preparing a bid on this project. Further, Penner desired plaintiff's help in the design and formation of the structural steel if it ultimately turned out that Penner was the successful bidder on the general contract.

Penner was awarded the general contract and during the subcontract bidding procedures plaintiff was told the finish painting contractor desired that plaintiff do its prime painting of the structural steel with a light colored primer. In order to meet that request, plaintiff went to defendant with a request for from 800 to 1,000 gallons of a light gray or off-white primer paint to be used in connection with a large constructio project for a contractor in Denver, Colorado. Plaintiff told defendant the project was a hangar. During conversations between plaintiff and defendant at this time, various primer paint specification numbers were discussed, but on each occasion of a number being mentioned defendant advised plaintiff such specification number was not for a light gray or off-white primer paint.

After discussions concerning the various paint specification numbers, plaintiff asked defendant to prepare a formula for a gray oxide primer or an off-white primer that could be used to prime the structural steel for this project and defendant agreed to do so. Plaintiff told defendant this formula would be mailed to various paint manufacturers for the purpose of obtaining bids on such paint so plaintiff would be assured all paint manufacturers would be bidding on the same type of primer paint.

Defendant prepared and delivered the formula requested by plaintiff. This formula was not an exact specification and many kinds of paint could be made from it. The formula was mailed to various other paint manufacturers and suppliers for the purpose of obtaining bids on the type of paint described in the formula. Plaintiff received a number of bids from various paint companies and a bid from defendant.

On July 24, 1970, plaintiff called and advised defendant it was the low bidder, and it would be used as the supplier of the primer paint for the structural steel on the Altus project. Defendant forthwith proceeded to manufacture for the first time the primer paint requested with a designated number 32X23.

The first of the primer paint was delivered to plaintiff in October of 1970. Deliveries continued during the time plaintiff was fabricating the structual steel for the Altus project. All of the structural steel was fabricated in Wichita, was prime painted in Wichita, and thereafter delivered to the job site at Altus for erection under supervision of the general contractor, Penner.

During the time plaintiff was fabricating and prime painting the steel for the Altus project, it was also fbricating and prime painting steel for a number of other projects in which plaintiff was then engaged. The same prime painting procedures were used on the other projects as were used in connection with the Altus project, but on none of the others was the 32X23 primer paint used. Paint failures were not experienced on any of the other projects.

After the structural steel was delivered to Altus, parts thereof were erected and parts thereof remained unerected. In early March of 1971, the U. S. Corps of Engineers advised Penner the primer paint job on the structural steel on the Altus project was failing. Penner's representatives examined the job and advised plaintiff the primer paint was wholly unsatisfactory. Penner Further stated it would not accept plaintiff's work until the paint problem was corrected and it would hold plaintiff to a strict compliance with its contract. Dissatisfaction on the part of the U. S. Corps of Engineers and on the part of Penner stemmed from the fact the primer paint on both the erected and the unerected steel was rusting, peeling and flaking.

After the paint failure had become apparent, Penner sent some of the 32X23 primer paint to the Hauser Testing Laboratories in Boulder, Colorado, for analysis. The laboratory determined this primer paint, among other things, failed usual and ordinary adhesion and flexibility tests.

While Penner was examining the paint failure, representatives of defendant and of plaintiff also examined the paint and noted the various degrees of paint deterioration. It was agreed, particularly between Penner and plaintiff, that it was absolutely imperative that repairs be made as expeditiously as possible. In connection with such repairs, defendant's chemist stated that in his opinion all the steel would have to be sandblasted, including the steel on the ground as well as that which had been erected.

Plaintiff also took samples of this 32X23 paint to the Means Laboratory in Wichita, which prepared an analysis. Its analysis, among other things, stated this primer paint did not contain a rust inhibitor and that one of its components, calcium carbonate was not stable under all conditions, which might result in shrinkage on some types of surfaces.

After various conferences between Penner, the U. S. Corps of Engineers, and plaintiff, the parties concerned agreed to a procedure for repair of the primer paint job. In arriving at specifications and procedures for this repair, plaintiff was trying to keep down the costs. Penner ultimately entered into an agreement with the Ray Martin Painting Company to do the actual repair work. In the opinion of the project engineer for Penner, this was the most reasonable way to effect the repair. Repair was completed and Penner charged plaintiff $112,276.81.

Sometime subsequent to the time all repair was completed, additional samples of the 32X23 paint were tested by Professor James E. Myers, who at the time of the trial was a professor at Wichita State...