Butcher v. Garrett-Enumclaw Co.

581 P.2d 1352, 20 Wash. App. 361, 24 U.C.C. Rep. Serv. (West) 832, 1978 Wash. App. LEXIS 2431
CourtCourt of Appeals of Washington
DecidedJune 8, 1978
Docket4908-1
StatusPublished
Cited by10 cases

This text of 581 P.2d 1352 (Butcher v. Garrett-Enumclaw Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butcher v. Garrett-Enumclaw Co., 581 P.2d 1352, 20 Wash. App. 361, 24 U.C.C. Rep. Serv. (West) 832, 1978 Wash. App. LEXIS 2431 (Wash. Ct. App. 1978).

Opinions

Dore, J.

Plaintiff Butcher sued the defendant Garrett-Enumclaw Company, a manufacturer, for breach of express and implied warranties relating to the 1973 sale of its portable sawmill called the "Ecologizer." The Ecologizer was a new and unique concept for a commercial sawmill incorporating log cutting and log handling principles not found in ordinary sawmills. The jury awarded damages to the plaintiff of $56,011.22 for expenses, lost and reduced business profits, return of his purchase money, and the cost of modifying the waste disposal system. Defendant appeals on various assignments of error including the improper admission of evidence, jury instructions and denial of defendant's counterclaim.

Facts

The Ecologizer was invented and patented by a man named Cockle. It was touted by the defendant manufacturer at various fairs and in written public relation statements and brochures to be "the first truly portable small log sawmill that turns waste wood into valuable lumber."

The defendant, apparently intending to go into mass production with the Ecologizer, prepared a handsome brochure depicting the Ecologizer on one side, and on the back [363]*363side making various representations to future purchasers as to its operational abilities as follows:

Now it pays to harvest the small logs you've always left because they didn't pay. The Garrett Ecologizér makes dimension lumber from small logs in one pass at infinitely variable feed speed, and nothing left over but sawdust, which is 100% biodegradable. No slabs. No edgings.
The portable Garrett Ecologizér can be trailed to any woods site — be in operation in minutes. Just park it and start it up — no leveling or blocking needed. It's only 8 ft. wide, 7 1/2 ft. high and 16 ft. long in travel position. All moving parts are completely housed for safety, and all compartments are vandal proofed and locked.
A 3-man crew of your "regulars" can operate the Ecol-ogizer. You don't need an experienced "sawyer." The operator feeds in logs up to 10" diameter and the machine squares them, first on two sides, then top and bottom, and rips into the desired dimension lumber. It handles any species of marketable timber, and the lumber quality is excellent, with the majority being select structural grade.

(Italics ours.)

In 1973 the defendant began the development of the Ecologizér and about that time the plaintiff, a successful sawmill operator, having read defendant's literature became interested in purchasing one. At that time the defendant was operating a prototype Ecologizér at its Enumclaw test area and plaintiff inspected the prototype there on several occasions and test-ran random logs on the prototype.

On May 9, 1973, the plaintiff signed a purchase order to buy the "first production model" for $38,700. The subject matter of the written order read: "One Garrett Ecologizér— to be delivered — first production model." At the time of the signing of the purchase order there was no production model in existence. At the trial it developed that there was only one prototype of the Garrett Ecologizér, not two as previously represented when plaintiff inspected the Ecolo-gizer at Enumclaw. There was evidence that in the 5 months subsequent to the signing of the purchase order [364]*364that substantial design changes were made in the "first production model" sold to the plaintiff which made it differ in several important areas from the only prototype ever made by Garrett. The plaintiff in effect received, without his knowledge, a second prototype rather than a "first production model" suitable for commercial use. The "first production model" of the Ecologizer, the actual machine received by the plaintiff, had been test run only a few hours by the manufacturer prior to its delivery to plaintiff. It is undisputed that plaintiff wanted and was told by the seller he was getting a "production model" capable of commercial operations on a full-time basis, 8 hours a day, 7 days a week. As soon as plaintiff began using the "production model" it showed design problems requiring its return to the factory for redesign. Later when plaintiff began regular operation of the machine, it experienced frequent breakdowns, mismanufactured dimension lumber and required continual service by Garrett's personnel.

The plaintiff used the machine from November 1973 to November 1974 based on the continued assurance by defendant personnel that all of his problems with the Ecol-ogizer would be solved. In spite of all the changes and redesign efforts and the continued assurances of the manufacturer, the prototype machine rim only for an hour or so at a time. The final straw that broke the camel's back was when the plaintiff tried to commercially cut cedar logs; the machine became inoperative and was shut down.

In December 1974 plaintiff returned the inoperative machine to the defendant. There was testimony at the trial that all of the defects of the machine could have easily been observed by the manufacturer if it had tested the machine under field conditions. The inventor of the Ecologizer testified that over his objection defendant's personnel had incorporated important design changes in the prototype with only a very limited testing of the modifications.

On its return defendant sold the Ecologizer at a public sale leaving a balance on the purchase price of $13,494.95 which they charged to plaintiff.

[365]*365Issues

Issue 1: Whether the trial court erred in excluding defendant's exhibit 17 (the purchase order) and exhibit 18 (the security agreement) on the basis that they contained language that was unreasonable and unconscionable under the provisions of the Uniform Commercial Code, RCW 62A.2-302 and RCW 62A.2-316?

Issue 2: Whether the trial court erred in allowing the plaintiff to testify to conversations with defendant regarding the capabilities of the Ecologizer?

Issue 3: Whether a brochure of the defendant (exhibit 38) limiting the warranties of the manufacturer was properly excluded?

Issue 4: Whether the trial court erred in admitting exhibits 6 and 40 (defendant's Ecologizer brochures) which contained express warranties of the manufacturer to buyers?

Issue 5: Whether the court erred in failing to rule that plaintiff was an expert on sawmills and had no right to rely on defendant's representations and warranties?

Issue 6: Whether plaintiff's evidence as to lost profits was sufficient to sustain loss profit damages in the verdict?

Issue 7: Whether plaintiff, having accepted the Ecolo-gizer, was entitled to later revoke such acceptance pursuant to RCW 62A.2-608(1)?

Decision

Issue 1: Purchase order and security agreement not integrated contracts.

That in reference to the purchase order (exhibit 17), we feel the trial judge properly excluded this exhibit for it contained two objectional paragraphs, as follows:

(a) on the front of the agreement was the language:

The front and back of this Order comprise the entire

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581 P.2d 1352, 20 Wash. App. 361, 24 U.C.C. Rep. Serv. (West) 832, 1978 Wash. App. LEXIS 2431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butcher-v-garrett-enumclaw-co-washctapp-1978.