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Protek11/7/2005
nufactured when such was not the case.
{ } The trial court properly concluded delivery was a material term of the parties' agreement. As a result of LES' failure to meet all delivery deadlines, Protek sustained damages in the form of expedited and excessive freight charges and customer charge-backs.
{ } Based upon the above, the trial court did not err in finding LES breached the parties' agreement and awarding Protek damages incurred as a result thereof. LES' first assignment of error on cross-appeal is overruled.
CROSS-APPEAL II
{ } In the second assignment of error, LES argues the trial court erred in finding LES' warranty failed of its essential purpose.
{ } LES cites the express limited warranty included in its quotes to Protek. The warranty provided the bolts would be manufactured in substantial compliance with Protek's specifications, and limited Protek's remedies to repair or replacement of the goods sold.
{ } LES cites the Ohio Supreme decision in Chemtrol Adhesives, Inc. v. American Manuf. Mut. Ins. Co. (1989), 42 Ohio St.3d 40, arguing the limited remedy should only fail where the seller is unable or unwilling to make repairs within a reasonable period of time. Therefore, the warranty has fulfilled its essential purpose when the buyer receives the benefit of the bargain.
{ } The trial court's Judgment Entry stated:
{ } "73. R.C. § 1302.93 (A)(1) provides that the contracting parties in a commercial transaction may "limit or alter the measure of damages recoverable" by "limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of the nonconforming goods or parts." However, where such an exclusive/limited remedy fails of its "essential purpose," the buyer is entitled to remedies as provided in the Revised Code. R.C. § 1302.93 (B).
{ } "74. A limited remedies clause fails of its essential purpose when "an apparently fair and reasonable clause, because of circumstances, fails in its purpose or operates to deprive either party of the substantial value of the bargain." 81 Ohio Jur.3d. Sales and Exchanges of Personal Property § 180.
{ } "75. When a limited remedies clause fails of its essential purpose, so too does the seller's disclaimer of liability for consequential damages. 81 Ohio Jur.3d Sales and Exchanges of Personal Property § 181, Goddard v. General Motors Corporation (1979). 60 Ohio St.2d 41, D.O.V. Graphics, Inc. v. Eastman Kodak Co. (1976) 46 Ohio Mis. 37.
{ } "76. The Court in Goodyear, supra, citing Clark v. International Harvester (1978), 99 Idaho 326, 581 P.2d 784, held that:
{ } "The purpose of the exclusive repair or replacement remedy is to ensure that the purchaser receives a product which conforms to the express warranty, i.e. that the product is free from defects, and if the product proves defective within the warranty period the seller is obligated to cure the defect within a reasonable time. * [Citations omitted.] If, however, the seller is subsequently unable or unwilling to repair or replace a defective part within a reasonable time, the buyer is left with a defective product - - not conforming to the warranty - - and the limited remedy has not achieved its purpose."
{ } "77. R.C. § 1301.06 states that the remedies provided in R.C. Chapter 1302 "shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed, but neither consequential or special nor penal damages may be had except as specifically provided in those chapters or by other rule of law."
{ } "78. R.C. § 13
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