holding that a contract for sale warranting that the product was free from defects in workmanship and materials and that the manufacturer would repair or replace defective parts did not explicitly extend to the future performance of the vehicle
How later courts described this case
- holding that a contract for sale warranting that the product was free from defects in workmanship and materials and that the manufacturer would repair or replace defective parts did not explicitly extend to the future performance of the vehicle
- grant of summary judgment on statute of limitations grounds was erroneous; question of how delivery was to occur under a sales contract and when it did occur were material questions of fact
- identifying UCC express warranties as one of the “warranties of quality”
- “repair-and-replaeement” language in express warranty was remedy rather than warranty of future performance
Written by the judges who cited it.
The opinion
Jones, J.,
concurring and dissenting. I concur with my colleagues in reversing this case on the first and fourth assignments of error, for the reasons stated, namely that summary judgment was improper because there were questions of fact with respect to the date when the four-year statute of limitations began to run. I also concur that the second assignment of error has no merit.
I dissent with the majority which finds that the third assignment of error is well-taken with respect to the granting of summary judgment to Allis-Chalmers Credit Corporation. I cannot accept the majority’s view that the Retail Installment Sales Act (RISA), R.C. Chapter 1317, is applicable to the sale of the farming equipment which is the subject of this action. It defies logic to believe that the sale of a combine for over $45,000 could be a consumer transaction as defined in R.C. 1317.01(P) which reads as follows:
“ ‘Consumer transaction’ means a sale, * * * to an individual for purposes that are primarily
'personal, family, or household.
” (Emphasis added.)
The majority decision observes that the combine was used for a total of 1,093 hours (182 hours per year) to harvest between 1,850 and 1,900 acres. The majority then concludes, however, that since “Herbolt was never asked what he did for a living or for what
purposes
the combine was used,” there was a question of fact as to whether or not the combine was used primarily for commercial uses rather than personal purposes. Clearly one does not pay over $45,000 for a combine and use it in such an extensive manner unless he is involved in commercial farming. Such is readily apparent, and it was totally unnecessary for there to be testimony that appellant was a commercial farmer. There is an old adage which may well be applicable. “If it walks like a duck and quacks like a duck and swims like a duck, it’s probably a duck.” There was no legitimate question of fact before the trial court with respect to the use of the combine, and the trial court was correct in granting summary judgment to Allis-Chalmers Credit Corporation. As observed
in Mid-Wood, Inc.
v.
Digby
(1982), 5 Ohio App. 3d 246 , the legislature did not intend that the Retail Installment Sales Act be applied to the type of commercial business operated by appellant. To hold otherwise would be a gross enlargement of the class of persons and transactions intended by the legislature to have the protection of the Retail Installment Sales Act.