Hunt v. Perkins Machinery Co., Inc.

226 N.E.2d 228 (1967)

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Nature of the Case

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Facts

P is a commercial fisherman. P was considering the purchase of a diesel engine for his fishing boat. D's sales manager went to P's house to introduced P to D's offerings. P went to Maine to look at a boat equipped with the engine that D recommended. In January 1961, P signed a purchase order for one Caterpillar Model D330 engine with a 1.2 to 1 reduction gear (instead of one reduction gear ordinarily supplied by the manufacturer) and certain specified accessories. The written portion of the purchase order was on a 'pad of paper containing several copies separated by carbon paper.' P did not read anything on the back of the order when he signed it. 'The original and all copies of the order were taken by D for signature by an official.' P received a fully executed copy of the order by mail a few days later. In the center of the face of the order in boldface type capitals appears the statement 'BOTH THIS ORDER AND ITS ACCEPTANCE ARE SUBJECT TO 'TERMS AND CONDITIONS' STATED IN THIS ORDER.' On the reverse side of the order at the top in the same boldface type, capitals appear the words 'TERMS AND CONDITIONS.' Underneath those words, there are eleven numbered paragraphs. The paragraphs contained statements that the written document represented the entire agreement between the parties, and no representations had been made other than those in the printed agreement. The paragraphs also disclaimed all warranties as to merchantability or fitness. P did not have a chance to read the back of the form prior to getting it in the mail. After the engine was installed, mechanical problems arose, each of which was corrected by Perkins at no expense. The engine, when running, gave off excessive quantities of heavy black smoke, which caused the boat to become dirty, inside and out, and rendered P's work on the boat unpleasant. D was unable to fix the issue. The engine was removed by P and put on the dock at Marine's plant. P called D and reported that he had removed the engine and advised D to get it. The engine is still on Marine's premises. P purchased a new engine from another manufacturer. P sued D for a breach of implied warranty and implied warranty of fitness for a particular purpose. D moved for a directed verdict based on the written contract. It was denied. P got the jury verdict, and D appealed.