Milgard Tempering, Inc., Plaintiff-Appellant-Cross-Appellee v. Selas Corporation of America, a Foreign Corporation, Defendant-Appellee-Cross-Appellant
Opinion
Opinion
Wright, J.
This case presents the question whether a consequential damages limitation justified summary judgment for defendant-seller when the limited remedy of repair and replacement allegedly failed of its essential purpose. We hold that it did not and remand for trial.
FACTS:
Milgard Manufacturing, Inc. cuts and installs glass for use in residential and commercial construction. In 1979, it negotiated a contract with Selas Corporation of America to purchase a sophisticated glass tempering furnace. With Selas’ consent, this contract was assigned to plaintiff, Mil-gard Tempering, Inc. Negotiations, conducted with the assistance of counsel for both parties, culminated in a detailed purchase contract.
Selas contracted to design and manufacture a complex horizontal batch tempering system, for a purchase price of $1,450,000 with a $50,000 bonus if “all major components required to erect and install the equipment [were] delivered to purchaser by January 31, 1980.” Contract § 29.0. Mil-gard agreed to assemble the furnace on site, with Selas assisting with the start up and adjustment for testing. Selas retained a security interest in the furnace to insure payment.