GARDNER ZEMKE CO. V. DUNHAM BUSH, INC.
115 N.M. 260, 850 P.2d 319 (1993)
NATURE OF THE CASE: This was a dispute over the terms of a contract for the sale of
goods. Gardner (P), general contractor, brought suit against Dunham (D), air-conditioner
manufacturer, for breach of a contract to provide equipment and failure to provide warranty
service. P appealed from a judgment for D.
FACTS: 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 counteroffer and its warranty and disclaimers were
controlling. A bench trial was held and the verdict went to D. P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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