## Facts

- Killion (plaintiff/buyer) purchased a used truck from Buran Equipment Co. (defendant/seller).
- Killion alleged Buran represented that the truck’s diesel engine was the original equipment engine installed by the manufacturer.
- Killion also alleged Buran represented that the engine had been given a major overhaul.
- Killion attached the truck’s purchase order to the complaint; it constituted the parties’ written agreement.
- Under the printed word “Warranty” on the purchase order was handwritten language stating: “Eng. & Work Performed by BAK Guaranted [sic] for 60 days.”
- Under the printed word “Year” on the purchase order was a handwritten entry: “1968.”
- The purchase order also stated the sale was “on an ‘as is’ basis without warranty of any character express or implied.”
- Killion sued Buran based on the alleged misrepresentations about the engine.
- The trial court sustained Buran’s demurrer to the complaint.
- Killion appealed.

## Issues

1. Whether a buyer’s complaint based on alleged misrepresentations and warranty-type statements about a used truck’s engine states a claim despite a written purchase order stating the sale is “as is” and disclaiming all warranties, where the purchase order also contains a handwritten 60-day engine-related guarantee.

## Decision

- The appellate court reversed the order sustaining Buran’s demurrer.
- The case was returned for further proceedings.

## Legal Principles

- On demurrer, the court accepts well-pleaded factual allegations as true and tests only whether the pleading states a legally sufficient claim.
- Under UCC § 2-313, a seller’s affirmations of fact or promises relating to goods may create an express warranty if they become part of the basis of the bargain.
- Under UCC § 2-316(1), language attempting to disclaim warranties must be read, where reasonable, consistently with language creating express warranties; a general disclaimer is not automatically treated as canceling specific assurances.
- Handwritten terms on a form contract are commonly given greater weight than conflicting printed boilerplate.
- “As is” language and broad warranty disclaimers do not necessarily defeat claims premised on alleged misrepresentation or specific express-warranty-type statements at the pleading stage.

## Conclusion

Killion alleged that Buran made specific factual statements about the truck’s diesel engine (original equipment and major overhaul) and the purchase order also included a handwritten 60-day engine-related guarantee, so the Court of Appeal held the “as is” and broad disclaimer language did not justify dismissal on demurrer and reversed for further proceedings.


Killion v. Buran Equipment Co., 27 UCC Rep. Serv. 970 (1979)