Velez v. Craine & Clarke Lumber Corp.

• Decision Date: 05 March 1973
• Citation: Velez v. Craine & Clarke Lumber Corp., 341 N.Y.S.2d 248, 41 A.D.2d 747 (N.Y. App. Div. 1973)
• Court: New York Supreme Court — Appellate Division
• Parties: , 12 UCC Rep.Serv. 69 Andrew VELEZ et al., Respondents, v. CRAINE & CLARKE LUMBER CORP., Appellant.

Page 248

341 N.Y.S.2d 248

41 A.D.2d 747, 12 UCC Rep.Serv. 69

Andrew VELEZ et al., Respondents, v. CRAINE & CLARKE LUMBER CORP., Appellant.

Supreme Court, Appellate Division, Second Department.

March 5, 1973.

Before MARTUSCELLO, Acting P.J., and BRENNAN, BENJAMIN, GULOTTA and CHRIST, JJ.

MEMORANDUM BY THE COURT.

Judgment of the Supreme Court, Kings County, entered November 29, 197i, reversed, on the law, without costs, and complaint dismissed. The findings of fact below are affirmed.

Plaintiffs brought this action against the defendant lumber supply company to recover damages, on the theories of breach of warranty and negligence, for personal injuries sustained when a scaffolding plank broke under their weight and caused them to fall. At the close of the entire case at a separate trial on the issue of liability, the trial court dismissed the negligence causes of action and reserved decision on defendant's motion to dismiss the causes of action for breach of warranty. The jury found for plaintiffs on the theory of breach of warranty and at the subsequent trial on the issue of damages a different jury awarded them substantial damages.

John Valentine, the job superintendent of Julius Nasso Concrete Company, plaintiffs' employer, testified that on January 27, 1970 he ordered a quantity of lumber from defendant by telephone, including 200 pieces of 2 9 scaffold planking, and that he specifically asked for scaffold planking. He had 20 years' experience in the trade and had dealt with defendant for 15 or 16 years; this was the normal way he gave an order and was the standard procedure for ordering. He further testified that scaffold planking was a standard item 13 feet long, suitable for scaffolding, and should be number one grade--free from any imperfections that would affect the quality of the material.

Defendant's vice-president, who received the telephone order from Valentine, testified that the latter specifically asked for rough spruce planking without saying which of two available grades he wanted. This was a repeat of many orders he had received from Valentine for other jobs during the previous two or three months and Valentine did not mention scaffold planking or say what he was going to use it for. When Valentine gave him the order he wrote it down in an order book as it was given to him. This notation was received in evidence and reads '2 9 Spr Rgh 200/13', substantially as appears in the invoice. The trade custom and usage is to sell rough spruce as is; and defendant, which buys it lumber from a mill, does not cut or grade it in any way and does not inspect it for quality upon delivery to it.

The defendant lumber yard delivered the lumber and one of Nasso's foremen checked it for quantity, not quality, and signed a receipt for it. Following the delivery, Nasso's employees branded the firm name on both edges of the planking (it was two inches thick), about a foot from one end, and then stacked it in a pile. At that time only the edges of the plank were visible.

Nasso's foreman ordered planks to be brought from the first floor of the building under construction down to the C--3 level and placed side by side across steel beams. Two men took planks from the pile and passed them down, floor by floor. About five or six planks were then laid side by side over an opening, about an inch or so apart, one end of each plank resting on a concrete platform and the other on a steel beam which it overhung by a foot.

Plaintiffs stepped on the scaffold at about the same time and a few seconds later the middle plank cracked, causing them to fall some 25 feet to the foundation below. After the accident, plaintiff Velez looked over and saw that the broken plank was rotted. The plank was not produced at the trial, but the uncontroverted testimony was that it was rotted on one side with a split or eggshaped break all the way across in the rotted area, which was about 20 inches in diameter and ran completely across the plank. This defect was visible only on one side of the plank and was hidden from view on the other side.

The invoice for the lumber was received in evidence and it bears in large capital letters the legend 'NO CLAIMS ALLOWED UNLESS MADE IMMEDIATELY AFTER DELIVERY'. Immediately below this disclaimer appears the following: 'NOTE--The purchaser shall be deemed to have accepted these goods as is, the seller having made no representations or warranties whatsoever with respect to their qualify, fitness for use, or in any other regard thereto.' The word 'NOTE' is printed in the largest type used on the invoice, except for defendant's name at the top and the invoice number at the bottom, but the text of the disclaimer is printed in the smallest type used on the invoice.

The only serious question presented on this appeal is the effect to be given to this exclusion of warranty of fitness. To be effective, an exclusion must be written and 'conspicuous' (Uniform Commercial Code, § 2--316, subd. (2)). The code defines 'conspicuous' as follows (§ 1--201, subd. (10)):

'A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is 'conspicuous' if it is in larger or other contrasting type or color. But in a telegram any stated term is 'conspicuous'. Whether a term or clause is 'conspicuous' or not is for decision by the court.'

The trial court held that the disclaimer was not conspicuous, citing Minikes v. Admiral Corp., 48 Misc.2d 1012, 266 N.Y.S.2d 461, where the District Court of Nassau County, First District, stated (p. 1013, 266 N.Y.S.2d p. 462):

'Before a merchant can disqualify for the implied warranties the public has become accustomed to, it must show that the customer was clearly placed on notice.

'Since the disclaimer is smaller, not larger, than the rest of the purchase order, it is not conspicuous.'

This holding is the subject of the following comment (18 Syracuse L.Rev., p. 290):

'Although the decision is instructive to draftsmen, it is troublesome both because of omissions from the fact statement as well as the questionable handling of the statutory definition of 'conspicuous.' The statutory language seems clearly intended to be illustrative rather than exclusive. A literal reading of the statute would, in certain circumstances, permit the characterization of a disclaimer provision as conspicuous if it were in smaller rather than larger type even where it is the same color and noncontrasting. Suppose, for example, it is clearly inset, has large spaces above and below and also has large red arrows pointing to it, or a red box around it? The opinion in this case, however, indicates that any such efforts to test the meaning of the statute would be a foolish enterprise, particularly when reasonable methods for making disclaimers conspicuous are spelled out by the statute itself.'

We agree that the statutory language is illustrative rather than exclusive; it presents guidelines to assist the court in deciding whether a particular disclaimer of warranty is conspicuous so that the person against whom it is to operate ought to have noticed it. Each case should be judged on the basis of its own facts and the court should take into consideration the pertinent circumstances.

Here the record indicates that Nasso's job superintendent, Valentine, had actual knowledge of the presence of the disclaimer of warranty of fitness for purpose on invoices in the trade. In his dealings with defendant for 15 or 16 years and in his 20 years' experience in the trade he had seen quite a few invoices. It had been his experience to see such a disclaimer on these invoices and he could not recall ever seeing one without it.

In our opinion, the trial court should have taken these circumstances into consideration together with the fact that the disclaimer appeared at the bottom of the invoice roughly opposite the total amount of the bill and immediately underneath the conspicuous legend 'NO CLAIMS ALLOWED UNLESS MADE IMMEDIATELY AFTER DELIVERY'. In addition, the disclaimer of warranty was preceded by the word 'NOTE' which appeared in conspicuous capital letters, thus calling further attention to it.

We feel these circumstances, together with Valentine's actual knowledge that invoices in the trade contain a disclaimer of warranty, rendered the disclaimer in the present case sufficiently conspicuous so that he ought to have noticed it despite the smallness of the type used. The disclaimer was conspicuous as to Valentine and, as Nasso's agent, he was the person against whom the disclaimer was to operate. We accordingly conclude that the disclaimer of warranty was effective against plaintiffs' employer Nasso and thus effectively barred plaintiffs' causes of action for breach of warranty.

MARTUSCELLO, Acting P.J., and BRENNAN and BENJAMIN, JJ., concur.

GULOTTA, J., dissents and votes to affirm, with the following memorandum, in which CHRIST, J., concurs:

In addition to the narrow ground on which the judgment was granted, we think it sustainable on somewhat broader grounds.

Plaintiffs, who were employees of a construction company, suffered serious injuries when a scaffold plank on which they were standing broke in the middle and precipitated them about 30 feet into the basement of the building on which they were working.

The plank was one of 200 purchased from defendant for the specific use to which it was put and the intended use was made known to defendant, with whom plaintiffs' employer had been dealing for some 15 or 16 years. It is a standard item made of spruce, 2 inches by 9 inches cross section by 13 feet long. It should be cut from sound lumber without excessively large knots. However, a knot was not involved in the plank which broke in this case. Rather, it was a rotted section on the under side of a brand new plank and plaintiff...