Mendenhall v. Marion Foods Corp.

Appellate Division of the Supreme Court of New York

Mendenhall v. Marion Foods Corp.

57 A.D.2d 1041, 395 N.Y.S.2d 808, 22 U.C.C. Rep. Serv. (West) 54, 1977 N.Y. App. Div. LEXIS 12344

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 20, 1977

StatusPublished

This text of 57 A.D.2d 1041 (Mendenhall v. Marion Foods Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mendenhall v. Marion Foods Corp., 57 A.D.2d 1041, 395 N.Y.S.2d 808, 22 U.C.C. Rep. Serv. (West) 54, 1977 N.Y. App. Div. LEXIS 12344 (N.Y. Ct. App. 1977).

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Opinion

Order unanimously affirmed, with costs. Memorandum: Defendant appeals from a denial of its motion pursuant to CPLR 3211 (subd [a], par 1) to dismiss plaintiff’s second cause of action for breach of an implied warranty of fitness ón the ground that such warranty was effectively disclaimed by language contained in a contract between the parties. Although as a general rule the construction of a written instrument is a question of law [1042]*1042for a court to determine (see Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247), this rule does not apply where the language used between the parties is either ambiguous or equivocal or where its interpretation depends upon the sense in which the words were used (see Lachs v Fidelity & Cas. Co. of N. Y., 306 NY 357, 364). In the instant case, while the disclaimer clause effectively excluded all implied warranties as to "quality, type and productiveness” of certain seed supplied to plaintiff by defendant, it is arguable whether this language extended to exclude an implied warranty of fitness for the purpose for which defendant knew the seed would be used. Accordingly, such a question is one of fact, the disposition of which should await a full trial on the merits. (Appeal from order of Cayuga Supreme Court — dismiss cause of action.) Present — Marsh, P. J., Moule, Cardamone, Simons and Goldman, JJ.

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Order unanimously affirmed, with costs. Memorandum: Defendant appeals from a denial of its motion pursuant to CPLR 3211 (subd [a], par 1) to dismiss plaintiff’s second cause of action for breach of an implied warranty of fitness ón the ground that such warranty was effectively disclaimed by language contained in a contract between the parties. Although as a general rule the construction of a written instrument is a question of law [1042]*1042for a court to determine (see Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247), this rule does not apply where the language used between the parties is either ambiguous or equivocal or where its interpretation depends upon the sense in which the words were used (see Lachs v Fidelity & Cas. Co. of N. Y., 306 NY 357, 364). In the instant case, while the disclaimer clause effectively excluded all implied warranties as to "quality, type and productiveness” of certain seed supplied to plaintiff by defendant, it is arguable whether this language extended to exclude an implied warranty of fitness for the purpose for which defendant knew the seed would be used. Accordingly, such a question is one of fact, the disposition of which should await a full trial on the merits. (Appeal from order of Cayuga Supreme Court — dismiss cause of action.) Present — Marsh, P. J., Moule, Cardamone, Simons and Goldman, JJ.

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Bluebook (online)

57 A.D.2d 1041, 395 N.Y.S.2d 808, 22 U.C.C. Rep. Serv. (West) 54, 1977 N.Y. App. Div. LEXIS 12344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendenhall-v-marion-foods-corp-nyappdiv-1977.

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