On December 15, 2020 Chan Barry purchased a new camper (to be pulled behind his truck) from
Question:
On December 15, 2020 Chan Barry purchased a new camper (to be pulled behind his truck) from Manson Building and Spas, Inc. (Manson) for $37,219. Barry testified that he purchased the camper so that he and his family could go camping together. He also testified that he purchased the particular camper after Manson's salesman, Barney Fife, assured Barry that Manson would promptly perform warranty work and that if he had any problems with the camper, Manson would remedy those problems. Barney told Barry that he had never known anyone to have a problem with this type of camper and Manson would "stand behind" the product. The camper Barry purchased folds down for towing behind a vehicle (also known as a "pop-up" camper). In order to use the camper, the top of the camper must be raised by turning a crank. The beds fold out from the ends of the camper.
After getting home with the camper, Barry set up the camper and noticed that the bed rails were bent and that it was very difficult to pull the beds into their proper position. Barry called Manson about the problem and informed a secretary that he planned to use the camper immediately on a two-week vacation in Idaho. The secretary told Barry to proceed with his vacation and bring the camper in for repairs when he returned
After he returned from his vacation (having numerous problems with the camper), Barry took it to Manson to be repaired. He was told that the camper would be repaired in one week. Two weeks later he received a call from Brad, the service manager, stating that the camper had been repaired. When Barry got to Manson, he was told by Brad that some of the repairs had been made but not the bed rails. Brad told Barry to take the camper home and that Brad told him that he would come by Barry's home and repair the bed rails. Four months later Barry finally reached Brad (who, of course, never showed up) and demanded that the rails be fixed and in the mean time the crank on the camper had broken. Brad again asserted that he would be there in one week, but never showed up.
One month later Barry telephoned Manson and demanded to speak to the manager about obtaining a refund of his money he paid for the camper. No manager was available, so Barry left a message, and many messages over the next month and no one returned his calls. On July 16, 2021 Barry took the camper to Manson and spoke to a manager named Wayne. Barry testified that he told Wayne that he wanted his money back. Wayne told him that he could not give Barry a refund but that the camper would be fixed within two days. Guess what, it wasn't. Manson never repaired the camper.
Barry sued Manson for breach of express warranty and breach of the implied warranty of merchantability (among other things including mental anguish damages). Manson argued at trial that all warranties were waived in the sales contract. Immediately below Barry's signature on the contract is the following language in bold print and capital letters: "LOOK ON THE BACK. THE TERMS THERE ARE ALSO PART OF OUR AGREEMENT." The back contained the following language:
NO AGENT, EMPLOYEE OR OTHER REPRESENTATIVE OF MANSON HAS ANY AUTHORITY TO BIND MANSON TO ANY AFFIRMATION. MANSON MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, AND MANSON SHALL NOT BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY PURCHASER (ME) AS A RESULT OF THIS AGREEMENT. I UNDERSTAND THAT (YOU) MAKE NO WARRANTIES WHATSOEVER REGARDING THE PRODUCT OR ANY APPLIANCE OR COMPONENT THEREON, EXCEPT AS MAY BE REQUIRED BY STATE LAW.
This agreement was dated on Dec. 16, 2020.
The jury awarded Barry $40,000 in actual damages and $50,000 in punitives. Manson appealed. You are the appellate court judge. Has a breach of express warranty occurred? [do not address the implied warranty issue] Why or why not? Give all arguments that both sides will make.
Business Law The Ethical Global and E-Commerce Environment
ISBN: 978-0071317658
15th edition
Authors: Jane Mallor, James Barnes, Thomas Bowers, Arlen Langvardt