## Facts

- A purchaser bought paint from a manufacturer for the specific purpose of coating metal grain-storage bins to provide a protective coating suitable for that use.
- The purchaser alleged the paint was defective and failed in service.
- The purchaser relied on the manufacturer’s skill and judgment to furnish paint suitable for the stated purpose.
- The manufacturer relied on disclaimer language printed on invoices to exclude or limit implied warranties.
- The disclaimer appeared in small, black type similar to the rest of the invoice text and did not draw special attention to itself.
- The parties’ written specifications and communications did not amount to “exact or technical specifications” that would create an express warranty displacing implied warranties.
- At trial, both sides introduced paint sample exhibits; the exhibits went to the jury during deliberations.
- During deliberations, the jury foreman scraped paint from the purchaser’s sample with a pocketknife and discussed the observed result with other jurors; no similar test was performed on the manufacturer’s samples.
- The jury returned a verdict for the purchaser; the trial court denied the manufacturer’s motion for a new trial based on juror misconduct and warranty-disclaimer defenses.

## Issues

1. Whether implied warranties of fitness for a particular purpose and merchantability arose from the sale of paint for coating metal grain bins.
2. Whether invoice disclaimer language effectively excluded or modified implied warranties under the U.C.C., including whether it was conspicuous and timely communicated.
3. Whether the parties’ specifications and communications created an express warranty that displaced inconsistent implied warranties.
4. Whether the contract failed for indefiniteness because some terms were left open.
5. Whether the jury foreman’s scraping of an admitted paint exhibit during deliberations was prejudicial juror misconduct requiring a new trial.

## Decision

- The Kansas Supreme Court affirmed the judgment for the purchaser and upheld denial of a new trial.
- An implied warranty of fitness for a particular purpose applied; the trial court’s instruction on implied warranty of merchantability was also proper.
- The invoice disclaimer was not conspicuous and was not shown to have been brought to the purchaser’s attention before or at contract formation; it was ineffective to exclude or modify implied warranties.
- The record did not support an express warranty based on the alleged specifications; implied warranties were not displaced.
- The contract did not fail for indefiniteness because the parties intended to contract and there was a reasonably certain basis for awarding a remedy.
- The foreman’s scraping of an admitted exhibit was treated as a closer examination of evidence, not the introduction of extraneous information; it was not reversible misconduct.

## Legal Principles

- When goods are sold for a buyer’s particular purpose and the buyer relies on the seller’s skill or judgment, an implied warranty of fitness for that purpose arises.
- To exclude or modify the implied warranty of fitness for a particular purpose, the disclaimer must be in writing and conspicuous; conspicuousness is a question of law for the court.
- A non-conspicuous invoice disclaimer cannot exclude implied warranties and cannot serve as the basis for modification by course of dealing or course of performance.
- For a disclaimer to operate to exclude an implied warranty at formation (including via course of dealing), it must be brought to the buyer’s attention before or at the time the contract is made.
- A sales contract does not fail for indefiniteness merely because terms are left open if the parties intended to contract and there is a reasonably certain basis for granting an appropriate remedy.
- Jurors may more thoroughly examine admitted exhibits during deliberations; such examination is not misconduct absent introduction of extrinsic evidence.

## Conclusion

The court enforced U.C.C. implied warranties where paint was supplied for a particular purpose and the seller’s invoice disclaimer was neither conspicuous nor timely communicated, rejected an express-warranty theory based on non-technical specifications, upheld contract validity despite open terms, and treated a juror’s scraping of an admitted paint exhibit as permissible examination rather than prejudicial misconduct.


Geo. C. Christopher & Son, Inc. v. Kansas Paint & Color Co., 523 P.2d 709 (Kan. 1974)