Gardner Zemke Co. v. Dunham Bush, Inc.

115 N.M. 260, 850 P.2d 319 (1993)


Gardner (P) was a general contractor and issued an order to Dunham (D) for air conditioning equipment. Under the terms of the order, the units were to have a one-year manufacturer's warranty and comply with the specifications attached to the order. D responded with its preprinted acknowledgment containing extensive warranty disclaimers, and a statement that the acknowledgment terms controlled the agreement between the parties and a provision deeming silence to be acquiescence to the terms of the acknowledgment. The transaction proceeded. The parties never addressed the discrepancies in the forms exchanged. After the purchase, payment, and installation, problems arose. P alleges that the chillers never complied with their specifications. P did request onsite warranty repairs. D wanted payment for their representative to call upon them in the event their mechanic discovered problems not caused by manufacturing defects. P rejected this offer on the basis that the warranty was still in effect. Ultimately an independent contractor was hired to fix the units; this resulted in $20,000 being withheld by P's customer. P then sued D for a breach of contract. On cross-motions for summary judgment, the trial court gave partial summary judgment to D; the acknowledgment was a counter offer, and its warranty and disclaimers were controlling. A bench trial was held, and the verdict went to D. P appealed.