( S AM PLE )

To:
From:
Date:
RE:

M E M O RAN D U M

Lawyer
Amy Hoffmann Morris
04/14/2015
Betty Remorse Implied warranty and remedy issues
Ms. Remorse purchased a lawnmower from Oliver Cutless, owner Mowers R Us, and

insists that it is unsuitable because it neither cut grass well nor mulched. The issues under
consideration are (1) whether Mr. Cutless provided an implied warranty for a used lawnmower
he recommended to Betty Remorse, and (2) what remedies may be available to Ms. Remorse.
In analyzing this case, it is necessary to decide if the purchase was for a good, which falls
under the Uniform Commercial Code (UCC), or a service, an issue of common law. Ms.
Remorse purchased a lawnmower that Mr. Cutless restored, which could be a mixed contract for
goods (lawnmower) and service (reconditioning). The Colorado Supreme Court said:
the controlling criterion should be the primary purpose of the contract that
is, whether the circumstances underlying the formation of the agreement and the
performance reasonably expected of the parties demonstrates the primary purpose
of the contract as the sale of goods or, in contrast, the sale of labor or service.
Colorado Carpet Installation, Inc. v. Palermo, 668 P.2d 1384, 1388 (Colo. 1983)
Ms. Remorse asked to buy a lawnmower, and Mr. Cutless sold her one. The primary
purpose of the contract is clearly the sale of a good, and is subject to implied warranties under
CRS 4-2-314 and 315. Under 314, a warranty that the lawnmower is merchantable is
implied in a contract for its sale because Mr. Cutless is a merchant with respect to lawnmowers.
In cases such as VLN Corp. v. Am. Office Equip. Co., 536 P.2d 863, 866 (Colo.App. 1975), courts
find that merchants selling goods that fail to perform in accordance with their ordinary purposes
breach implied warranties of merchantability. The lawnmower failed in its ordinary purpose
because it did not cut evenly and it left jagged tufts of grass.

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Ms. Remorse told Mr. Cutless what her needs were. Mr, Cutless, who proclaimed himself
an expert, advised her to purchase a mulching lawnmower. Ms. Remorse agreed. Mr. Cutless
then sold her a refurbished lawnmower that did not mulch the grass and did not meet her needs.
Under CRS 4-2-315, because Mr. Cutless had reason to know the particular purpose for which
the lawnmower was required, and Ms. Remorse relied on his judgment to select a lawnmower,
there is an implied warranty that the lawnmower would be fit for mulching. It was not.
Under CRS 4-2-316(2), to exclude or modify any implied warranty of fitness the
exclusion must be by a writing and conspicuous. The sign in Mr. Cutlesss store reading No
Refunds was unnoticed by Ms. Remorse. The Court has stated, Since the trial court found
inadequate foundation to support the theory that the plaintiff actually saw the sign, the sign has
no relevancy Danburg v. Realties, Inc., 677 P.2d 439, 442-43 (Colo.App. 1984).
An implied warranty is also excluded with regard to defects which an examination
ought in the circumstances to have revealed to him. CRS 316(3)(b). Ms. Remorse could not
possibly have discovered the nonconformity before she accepted and used the lawnmower. She
believed Mr. Cutless assurances that the lawnmower would fit her needs and, once Ms. Remorse
discovered the problems, she revoked her acceptance of the lawnmower whose nonconformity
substantially impaired its value to her (CRS 4-2-608(1)(b)).
The day after Ms. Remorse first mowed her lawn, she brought the mower back to Mr.
Cutless and explained its problems. Mr. Cutless refused to remedy the problems as he was bound
to do under CRS 4-2-510(1); therefore, under CRS 4-2-601(a), she has the right to reject the
lawnmower and get her money back, putting her in the condition she would have been in had she
never purchased the lawnmower. This rejection allows the buyer to avoid the obligation to pay
the price, Cissell Mfg. Co. v. Park, 36 P.3d 85, 89 (Colo.App. 2001). She could reject the

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lawnmower because she told Mr. Cutless of is problems well within the realm of reasonable
time and seasonable notice written in CRS 4-2-602(1).
This same issue of timely action comes up in CRS 4-2-607(3)(a) and 608(2), and
could entitle her to recover damages under CRS 4-2-714:
(1) Where the buyer has accepted goods and given notification (subsection (3) of
section 4-2-607), he may recover as damages for any nonconformity of tender the
loss resulting in the ordinary course of events from the seller's breach as
determined in any manner which is reasonable. (2) The measure of damages for
breach of warranty is the difference at the time and place of acceptance between
the value of the goods accepted and the value they would have had if they had
been as warranted...
The Court would likely agree with the Colorado Appellate Court in Gibbons v. Windish,
Inc., 662 P.2d 500 (Colo.App. 1983) when they pointed out that remedies under the UCC should
be liberally administered and said, Where, as here, there is a latent defect which, from the
testimony presented, cannot be corrected simply by replacing a defective part, awarding the costs
of replacing that part will not make the aggrieved party whole. Id. at 502.
There was no written contract between Mr. Cutless and Ms. Remorse, and one would be
required if the contract is to be enforced under the Statute of Frauds found in CRS 4-2-201 if
the sale of goods was less than five hundred dollars. A new mulching lawnmower can be
purchased for less than that price, so one can assume that she spent less than five hundred dollars
for a refurbished lawnmower. There are no enforcement issues under the Statute of Frauds.
In conclusion, the owner of Mowers R Us, Oliver Cutless, provided an implied warranty
of merchantability for the lawnmower purchased by Ms. Remorse. That warranty cannot be
excluded. He breached the warranty, and refused to remedy the problems. Ms. Remorse has the
right to reject the lawnmower and get her money back and/or collect damages.

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