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Show 4 MONDAY, AUGUST 12, 1974 In The Supreme Court off The to tructed as to prevent leakage when exposed ordinary and usual useage and were not constructed in a manner or from materials as represented by the defendant. Plaintiff was granted judgment in the sum of $3, 914. 19. representing the purchase price of 2'7 boats plus Interest and storage charges. Defendant was granted the right for 30 days to pick up at its own expense the remaining 21 boats in plaintiff's warehouse in Seattle. Thereafter plaintiff was to be permitted to dispose of them in any manner it might determine proper. 3. 16. Under the findings of the trial court both the piece of molded acrylic and the model boat could constitute representations as to the quality of the goods by the seller and be considered part of the basis of the bargain and thus express warranties. There was sufficient evidence, through the testimony of Mr. Bauer and Mr. Franklin, that the boats delivered to plaintiff were not of the same quality as represented. of plaintiff's complaint it pleaded: Defendant further contends that there was no evidence that the boats were not fit for the purposes for which intended. Defendant argues that there was no evidence of a technical nature or by experts tending to prove that the boats were unsound or unsafe. That said merchandise, to wit, the said boats, were defective and not as represented by defendant and were not fit for the purposes intended and were in no way salable merchandise. 6-- 3 Serv. 800, 802 (1973). Defendant further asserts, that since the plaintiff had in its possession an actual "model" or "sample" of the boat, plaintiff could not have relied solely on the piece of molded acrylic in purchasing the boats. testimony involving express warranties including sale by sample on the ground that such issues were neither raised by the pleadings nor tried by the express or implied consent of the parties. Rule 15(b), U. R. C. P. 2 State of Utah Bender's Uniform Commercial Code Service, Sec. 6.07, p. Judd Construction Company v. Bob Post, Inc. , Colorado, 13 U. C. C. Reptr. 2. trial court erred in admitting On appeal, defendant contends that the ,In paragraph PAGE NINE INTERMOUNTAIN COMMERCIAL RECORD The trial court found that the boats were not merchantable or salable in that they were not fit for the ordinary purposes for which such goods were sold, U. C. A. i. e. , the implied warranty of merchantability of Section was breached. as amended 1965, 1953, i ! Before the trial court, defense counsel claimed that no warranty had been pleaded and that any evidence relating thereto was outside of the pleadings. U. C. A. 3, He further urged that plaintiff's failure to plead Section 1953, as amended 1965, precluded presentation of any evidence in regard to breach of the express warranties set forth thereunder. 70A-2-314(2)- (c), 70A-2-31- This warranty is also meant to include protection of the person buying goods for resale to an ultimate consumer Thus the goods to be merchantable must be honestly resalable in the normal course of business. This is what they purport to be and this would be the ordinary purpose for which the goods are used when they are purchased by a retailer from a wholesaler, distributor, or manufacturer. The same reasoning would run throughout the whole line of distribution, from the manufacturer to the wholesaler, and from wholesaler to the retailer, and so on.4 The trial court overruled defendant's objections and found that paragraph 2 of plaintiff's complaint was sufficient to raise the issues of breach of express and implied warranties. Plaintiff's complaint fully complied with Rule 8(a), U. R. C. P. as a short and plain statement of its claim showing that the pleader was entitled to relief, and with a demand for judgment. The allegation setting forth that the merchandise was not as represented was sufficient to establish a claim U. C. A. 1953, as of an express warranty as provided in Section 70A-2-31- . There was substantial evidence in the record to sustain the finding that th boats were not resalable. 3, amended 1965, and a violation thereof. The allegations concerning the fitness of the boat for the purpose intended and the salability of the merchandise set forth a claim of an implied warranty of merchantability as provided in 4, U.C.A. 1953, as amended 1965, specifically subsection Section (2)(c), which provides that for goods to be merchantable, they must be at least such as are fit for the ordinary purposes for which such goods are used. The trial court did not err in its ruling that the plaintiff was entitled to present evidence tending to prove the existence of these warranties. Defendant further contends that the trial court erred in awarding storage fees to plaintiff. 70A-2-31- U.C.A. 1953, as amended 1965, provides that if the Section seller gives no instructions within a reasonable time after notification of rejection the buyer may store the rejected goods for the seller's account. 70A-2-60- Defendant, by two different agents, represented that it would pick up the boats. Defendant does not contend that it proffered any further instructions; under such circumstances the trial court properly awarded storage costs. Defendant further contends that the trial court erred in its finding that, the boats were defective and not as represented. Defendant proceeds on the supposition that the small piece of molded acrylic presented by defendant to plaintiff prior to the contract was interpreted by the trial court as a "sale by sample," and that defendant breached its warranty by failure to deliver boats comparable to the sample. 70A-2-313(l)- The judgment of the trial court is affirmed. tiff. Costs are awarded to plain- - WE CONCUR: Defendant is correct in his contention that the piece of molded acrylic did not create a "sale by sample" as provided in Section (l)(c), from the bulk A is drawn 1965. as amended U.C.A. 1953, actually "sample" an "model" the is item a of of the goods which is the subject matter sale; offered for inspection when the subject matter is not at hand and has not been drawn from the bulk of the goods. 1 However, the piece of molded acrylic and the representations made in regard thereto could be found to constitute exor (b), U.C. A. 1953, as press warranties under Section amended 1965. 70A-2-3- 4, 13 F. Henri Henriod, Justice R. L. Tuckett, Justice to 4. 3 Bender's Uniform Commercial Code Service, Section 7.01(3), pp 3; also see Vlases v. Montgomery Ward fc Company (CA 3d, 1967) 377 F. 2d 846; Ambassador Steel Company v. Ewald Steel Company, 33 Mich. App. 495, 190 N.W.2d 275 (1971). 5. In addition to the six boats returned to plaintiff by retailers, plaintiff had to (a) 7-- 12 7-1- Subsection (l)(a) provides: "Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." grant credit for boats it distributed in Alaska although they were not returned because of fyeivht rhrnm CROCKETT, Justice: (Concurring, and adding comment) Subsection (l)(b) provides: "Any description of the goods which is made creates an express warranty that the goods shall part of the basis of the bargain conform to the description. it make this observation I concur, except that I think it may be helpful to defendant 30 days to pick up it. reconcerning the trial court's granting the and thereafter, permitting plaintiff maining 21 boats in plaintiff's warehouse; the to "dispose of them in any manner it might determine proper." GivingHowever. reasonable time. defendant 30 days in which to remove the boats is a would permit an outright forfeiI know of no authority in law or equity which within 30 days. If ture of the defendant's boats for failure to pick them up of them, it should credit fendant does so fail, and the plaintiff doe. dispose See Hei.elt Const. the defendant with any net proceed, realized therefrom. Co. v. Garff. et al. , 119 Utah 164. 225 P.2d 720. sales by descripUnder the Uniform Commercial Code, Section tion, sample, or model constitute express warranties. Since these warranties arise by the language, acts, or conduct of the parties, it is logical that these be considered express warranties. A description of the goods may be by words or may be expressed in any other manner, such as, use of technical specifications or blueprints, which may be more exact than language. As2 long as they are made part of the basis of the bargain the goods must. conform. The question of the existence of a warranty and whether the warranty was breached is 3 ordinarily one for the trier of fact. Uniform Commercial 1. See Official Comment, paragraph 6, of Sec. 13, m m m . 2-3- ' 13, Code. 550 No. 120 East 4, Owner ON JULIE HARVARD 484 East 1500' South, Owner ON CHALES LARSEN, 266 Easst 200 South, Owner. ON BILL MELBY, 52 West 1000 North, Owner ON EDWARD J. MINH0ND0, 226 South b750 East, Owner Aon EARL STANDING, 561 East 400 South, Owner ON JOHN B. WEIGEL, 420 South 425 West, Owner ON AMBY BRIGOS, 99 South 500 East, Owner ON ED CASE, 256 East 100 South Owner ON COLONIAL GARDENS, 453 North 400 East, Owner ON COLONIAL GARDENS, 453 North 400 East, Owner ON GERRIT DYKGRA7F, 689 North 900 East, Owner ON JOHN A. HANSEND, 194 East 1050 South, Owner ON INVESTMENT ASSOC. 165 West ON DARWIN BROWNING, ON DAVID North, Owner CHRISTOPHER F. JOHNSON, 2050 South 91 West, Owner 200 ON ON MILLSTREAN GARDENS, ON ON ON RONALD GARDNER, 21 South 200 Owner ESTHER JULIE SMITH, 421 East 1800 South, Owner HAROLD B. WISE, 407 East. 1450 North, Owner ALBERT C. ABBOTT, 99 South 500 East, Renter 550 ON ON . HEFNER, ON KEN ON VELMA KAY, North, Renter ON JAMES STOKES, ON LAVARSE SYNMSRS, North, Renter 65O A. ON MARRIANNE ANDERSON, North, Renter t Rast, T. RUHR, 875 South West, ON 200 M. SHERIFF, East CONST. 561 500 West, Owner H. RAY LARSEN, 2263 OFF WILLIAM ALLSH0USE, 4 T. BROWN, 943 North Chapel Dr. Owner '. OFF GILS, 375 South 200 Wst HYMAN, Main, Owner OFF E. C. SWAIN, South, Owner North 701 East 75 IO83 1000 FAWN South 400 North OFF North, Renter 99 South GARY BOWLER, ' 5th East, Renter OFF JOHN M. C0LLEY, 420 425 Vest, Renter Parker Way, Renter OFF ANTHONY MACKLYNN, 266 Eat South East 256 OFF GLEN FINDLEY, 10C North, Renter 453 No. OFF GORDON, GARDINER, Renter North 900 East, Renter OFF BARBARA L. IVIE, 554 So. Orchard Dr. Renter 400 East, EDWARD 15--A, HTEFT, 200 North 1 200 689 66 West 8, Renter , 165 West North Renter OFF MELVIE MANNING, 146 North0 East OFF JAMES STOKES, 275 0DFF CHRIS LUCER0 BEESLEY, 550 200 South, Renter North, Renter East Renter 200 725 E MINHONDO, OFF VELMA KAY. 62 West North, Renter J. J. OFF LYNN RAY, 561 OFF Owxicx OFF JOHN BUSENBARK, West South OFF VERN 120. East, Renter South 100 750 East, Owner E. NIELS CN, 421 E 1800 So, Owner OFF LOWELL SPRINGER, 91 West 2050 South, Owner OFF R. CLARK ANDERSON, 647 Nortl 600 East, Owner OFF 185 EDWARD OFF DENNIS 157 West 850 South, Renter OFF BURGESS OFF OFF East 650 North, Owner OFF TERRY BOYD BARNES, South, Renter DANIEL W0RTHINGT0N, South, Owner 1950 OFF GERALD ELLER, 553 OFF RONALD Main, Renter 256 East 660 RIING, 224 500 South, Renter ' ON LAWRENCE Renter 71 North Parker Way, Renter ON BRENT G. PERKINS, 407 Eafl 1450 Nirth, Renter ' JOE C. POST,. 17 East 400 ON MICHAEL 100 North, WM D. WOOD, 166 West 200 No. ON JOHN 275 East 200 North, Renter North 600 Renter L. M0NCUR, 281 West 650 South, Renter ON 554 East Orchard Dr. Renter SANDRA PHONEY, 165 West South ON GARY 417 East South, Renter JOHNSON, 647 1921 East, Renter JEAN A. JOHNSON, 200 ON Main, Renter FURTISS, ON PETTY C0LGOVE, 527 South 400 East, Renter 679o East, ON 215 East CHAMBERLAIN, i960 South, Renter ON RHEA South Main, Owner ON JOHN Ellett, Justice, concurs in the views expressed in the concurring opinion of Mr. Justice Crockett. South 21 200 Eaatm Renter OFF D. J.1 MCKENZIE, 679 Mlllstream, Renter OFF TED, SCANDALL,v527 South |