Singer Co. v. E. I. du Pont de Nemours & Co.

• Decision Date: 13 July 1978
• Docket Number: No. 77-1438,77-1438
• Parties: 24 UCC Rep.Serv. 276 The SINGER COMPANY, a corporation, Appellee, v. E. I. du PONT de NEMOURS AND COMPANY, a corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 433

579 F.2d 433

24 UCC Rep.Serv. 276

The SINGER COMPANY, a corporation, Appellee, v. E. I. du PONT de NEMOURS AND COMPANY, a corporation, Appellant.

No. 77-1438.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 14, 1978.

Decided June 6, 1978.

Rehearing Denied July 13, 1978.

Richard D. Shewmaker, of Thompson, Walter, Shewmaker & Gaebe, St. Louis, Mo., for appellant; John B. Carothers, III, St. Louis, Mo., and Eugene L. Grimm, Wilmington, Del., on brief.

Robert B. Hoemeke of Evans, Hoemeke, Casey & McGhee, St. Louis, Mo., for appellee.

Before LAY and HENLEY, Circuit Judges, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

In this diversity contract action, the Singer Company sued to recover losses incurred when the E. I. du Pont de Nemours and Company allegedly breached both an express warranty and an implied warranty of fitness in failing to provide plaintiff with suitable industrial paint for its plant operations at Red Bud, Illinois. The case was submitted to a jury only on the implied warranty theory, and judgment was returned for Singer in the amount of $108,367.00. Defendant was awarded no recovery on either of its two attendant counterclaims. Du Pont unsuccessfully moved for judgments notwithstanding the verdict and for new trial, contending that the trial court improperly instructed the jury and that there was insufficient evidence to support the jury verdicts. Du Pont appeals from those rulings. We affirm.

Singer became interested during late 1972 in obtaining an electrodeposition paint system for its Red Bud, Illinois plant, where until this time the metal, or ware, used in the manufacture of air-conditioners and furnaces had been painted in a spray system. Electrodeposition is a method of painting by which pretreated ware is conveyed through an electrically charged paint tank and the ware, serving as an anode, is coated with paint in an electroplating type of process. After a period of negotiation between representatives from the two parties, Du Pont, in September and October of 1972, was contracted to provide Singer with paint for its approximately 22,000 gallon tank. Three additional companies were contracted to provide other interrelated steps in the overall finishing process, steps such as pretreatment of the ware and conveyance of the ware through the entire system.

From the beginning, in October of 1973, Singer experienced problems with the electrodeposition system. Ware frequently emerged from the paint tank with "blotches" and "streaks." Repainting was necessary. Du Pont, which supervised the installation and starting up of this electrodeposition system, tried unsuccessfully for six months to correct this problem. Finally, in April of 1974, the Du Pont paint was removed from the tank and replaced with paint supplied by the Sherwin-Williams Company. This lawsuit was filed the following year.

The nub of the factual controversy in the trial court was the cause for the blotches and streaks on the painted ware. Du Pont maintained that the problem was with the substrate, pretreated ware; Singer, however, insisted that the paint was at fault. In countering Singer's claim, Du Pont argued that the paint provided to plaintiff met contract specifications until the substrate was altered in February of 1974, at which time Du Pont could no longer be held to have expressly warranted its product. Singer contends that even if the specifications of this express warranty were met, Du Pont had given an implied warranty of fitness for a particular purpose by representing throughout the period in question that its paint would satisfy plaintiff's needs. Over Du Pont's objection, the trial court instructed the jury on implied warranty for a particular purpose. The issue of express warranty was not submitted.

I. The Uniform Commercial Code

While disagreeing on whether the trial court should have instructed as to an implied warranty of fitness for a particular purpose, the parties were properly in accord that the Illinois adoption of the Uniform Commercial Code ¹ governs the disposition of this case. Klaxon Co. v. Stenor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Havenfield Corporation v. H& R Block, 509 F.2d 1263 (8th Cir. 1975). There is also no dispute that the "all tests" provision of the contract, which specified such set standards as color and texture that the paint was to satisfy upon pretreated laboratory test panels, was an express warranty pursuant to Section 2-313(1)(b) of the U.C.C. ² But Singer claims that the contract further preserved an implied warranty of fitness, a warranty that pursuant to Section 2-315 ³ assured plaintiff the paint supplied would satisfactorily cover its substrate. A paragraph in the contract provided:

None of the provisions or remedies herein are in lieu of any claims for damages Buyer may have at law or equity under the Uniform Commercial Code or otherwise, for the breach of any contracts or warranties with Buyer, which rights are specifically reserved by Buyer.

Du Pont contends that parties who have an express warranty regarding a contracted for item cannot also have an implied warranty of fitness for that same item. The warranty of fitness for a specific purpose is alleged to have been limited by expressly defining it in a set of specifications, and Du Pont claims that to find otherwise would permit Singer to escape the parties' true contractual bargain.

Pertinent sections of the U.C.C., and the comments pursuant thereto, lend inferential support to Singer's position that the implied warranty of fitness was cumulative to and not excluded by the express warranty. Section 2-316(2), with regard to the exclusion or modification of such warranties, states:

. . . (T)o exclude or modify any implied warranty of fitness the exclusion must be a writing And conspicuous. (Emphasis added.)

Comment 9 to that section provides in part:

The situation in which The buyer gives precise and complete Specifications to the seller is not explicitly covered in this section, but this is a frequent circumstance by which the Implied warranties may be excluded. The warranty of fitness for a particular purpose would not normally arise since in such a situation there is usually No reliance on the seller by the buyer. (Emphasis added.)

See also U.C.C. § 2-315, comment 2. Because the evidence in this case fully indicates that it was not the buyer but the seller who in fact recommended and supplied the paint specifications, and remained in control of the paint tank, it would appear that the trial court did not err in its determination that an implied warranty of fitness was at issue. This is especially so in view of the purported exclusion of this warranty, which could be scarcely termed "conspicuous."

A reading of the U.C.C. to suggest that an express warranty and an implied warranty of fitness are not necessarily mutually exclusive, as Singer has argued, receives support from Code authority.

The fact that a warranty of fitness for a particular purpose does or does not exist has no bearing on any other warranty or theory of product liability. Conversely, the fact that there may be some other basis for liability of the defendant does not preclude the existence of a warranty for a particular purpose. Thus the fact that there is a warranty of conformity to sample (an express warranty) does not preclude the existence of a warranty for a particular purpose. (Emphasis added.) Anderson, Uniform Commercial Code § 2-315:5 (1970).

See also White and Summers, Uniform Commercial Code § 12-7 (1972); 67 Am.Jr.2d Sales § 501 (1973). Relevant case law, in the balance, further indicates that an express warranty would not control under the circumstances of this case.

Cases can be found prior to the adoption of the U.C.C. to support Du Pont's argument of mutual exclusiveness. This Court, without specific adoption of the position, recognized in Hercules Powder Co. v. Rich, 3 F.2d 12 (8th Cir. 1924) that there was law to the effect that an implied warranty of fitness could not prevail in the presence of an express warranty on the same item or subject.

An express warranty excludes an implied warranty relating to the same subject or of the same general nature, on the theory that no warranty should be implied where the parties with relation to the very same subject have expressed by words the warranty by which they will be bound. Id. at 18.

There was also case law to the contrary. See, e. g., Davenport Ladder Co. v. Edward Hines Lumber Co., 43 F.2d 63 (8th Cir. 1930); George E. Pew Co. v. Karley & Titsenor, 168 Iowa 170, 150 N.W. 12 (1914). But while there may have once been a split of authority, we fail to find since the general adoption of the above-quoted sections of the U.C.C. any case holding directly in favor of Du Pont's mutual exclusivity agreement. See 67 Am.Jur.2d, Supra at 679. In fact unless the exclusion of the implied warranty of fitness is specifically and conspicuously excluded, courts, often relying upon Section 2-317, ⁴ have found that such implied and express warranties can be cumulative and co-exist within the same agreement. Multivision Northwest, Inc. v. Jerrold Electronics Corp., 356 F.Supp. 207 (N.D.Ga.1972); Murray v. Kleen Leen, Inc., 41 Ill.App.3d 436, 354 N.E.2d 415 (1976); Water Works & Industrial Supply Co. v. Wilburn, 437 S.W.2d 951 (Ky.1969).

Du Pont, in arguing the law upon appeal, relies principally upon two types of cases that have arisen under the U.C.C.: those in which there has been a showing that the buyer, in possession or control of the item, failed to follow the express warranty specifications; and those where an enforceable disclaimer of an implied warranty has been established. With respect to the first type of case, it is clear that the trial court did not confront a situation where a buyer in possession or control of an item failed to follow seller's specifications, used the item in a manner for...