Geo. C. Christopher & Son, Inc. v. Kansas Paint & Color Co., Inc.
| Decision Date | 05 August 1974 |
| Docket Number | No. 47364,47364 |
| Citation | 525 P.2d 626,215 Kan. 510 |
| Parties | , 15 UCC Rep.Serv. 370 GEO. C. CHRISTOPHER & SON, INC., Appellee, v. KANSAS PAINT & COLOR CO., INC., Appellant. |
| Court | Kansas Supreme Court |
Gerald Sawatzky, Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and Robert C. Foulston, Wichita, was with him on the brief for appellant.
Milo M. Unruh, Arn, Mullins, Unruh, Kuhn & Wilson, Wichita, argued the cause and Richard H. Price, Jr., Wichita was with him on the brief for appellee.
OPINION ON MOTION FOR REHEARING
The defendant has filed a motion for rehearing challenging that part of the opinion dealing with the court's instructions on implied warranty of merchantability. The motion has been considered and is hereby denied.
In the original opinion filed June 15, 1974, 215 Kan. 185, 523 P.2d 709, we stated:
Defendant claims we were wrong in concluding no instruction was given on an implied warranty of merchantability, but we were right in saying that an instruction on implied warranty of merchantability was neither proper nor necessary. If defendant is correct a new trial should be ordered since the trial court instructed on a theory we found was neither proper nor necessary. We have fully reconsidered this point and have concluded we were wrong in both statements; that is, the court did instruct on implied warranty of merchantability and such an instruction under the facts and circumstances of this case was proper. We delete the above quoted part of the original opinion and point out that what we said as to disclaimers in their relation to implied warranty of fitness also applies to disclaimers in their relation to an implied warranty of merchantability.
In answer to defendant's contention that an express warranty supersedes an implied warranty under K.S.A. 84-2-317, we stated the specifications for paint were not exact or technical specifications indicating no express warranty was made. We then stated that even if the specifications could be construed as an express warranty the statute provides an express warranty does not displace an implied warranty of fitness for a particular purpose. This provision...
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...S.W.2d 784 (1969); George C. Christopher & Son, Inc. v. Kansas Paint & Color Co., Inc., 215 Kan. 185, 523 P.2d 709, as modified 215 Kan. 510, 525 P.2d 626 (1974). However, the conditional sales contract in question is before this Court and we determine that the disclaimer of implied and exp......
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