Hartzell v. Justus Co., Inc. 693 F.2d 770 (8th Cir. S.D. 1982) Arnold, J. This is a diversity case arising out of the purchase by Dr. Allan Hartzell of Sioux Falls, South Dakota, of a log home construction kit manufactured by the defendant Justus Homes. Dr. Hartzell purchased the package in 1977 for $38,622 [about $135,000 in 2010 dollars] from Del Carter, who was Justus Homes dealer for the Sioux Falls area. He also hired Carters construction company, Natural Wood Homes, to build the house. Hartzell, who testified that the home eventually cost about $150,000, was dissatisfied with the house in many respects. His chief complaints were that knotholes in the walls and ceiling leaked rain profusely, and that the home was not weather tight because flashings were not included in the roofing materials and because the timbers were not kiln-dried and therefore shrank. He also complained that an undersized support beam, which eventually cracked, was included in the package. This latter defect was alleged to have resulted in cracks in the floor and inside doors that would not close. Hartzell further alleged that these structural defects were only partially remediable, and that the fair market value of the house was reduced even after all practicable repairs had been made. Alleging breach of implied and express warranties and negligence, he sought damages for this loss in value and for the cost of repairs. After a two-day trial, the jury returned a plaintiffs verdict for $34,794.67. Justus Homes contends the District Court erred in failing to instruct the jury on a limitation-of-remedies clause contained in its contract with the plaintiff. The defendants rely on Clause 10c of the contract, which says Justus will repair or replace defective materials, and Clause 10d, which states that this limited repair or replacement clause is the exclusive remedy available against Justus [emphasis added]. These agreements, Justus asserts, are valid under the Uniform Commercial Code 2-719(1). Section 2-719(1) states: Saylor URL: http://www.saylor.org/books Saylor.org 473 (1) Subject to the provisions of subsections (2) and (3) of this section and of 57A-2-718 on liquidation and limitation of damages, (a) The agreement may provide for remedies in addition to or in substitution for those provided in this chapter and may limit or alter the measure of damages recoverable under this chapter, as by limiting the buyers remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. Subsection (1) of section 2-719 is qualified by subsection (2): Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title. The jurys verdict for the plaintiff in an amount almost exactly equal to the plaintiffs evidence of cost of repairs plus diminution in market value means it must have found that the structural defects were not entirely remediable. Such a finding necessarily means that the limited warranty failed of its essential purpose. Two of our recent cases support this conclusion. In Soo Line R.R. v. Fruehauf Corp., 547 F.2d 1365 (8th Cir.1977), the defendant claimed, relying on a limitation-of-remedies clause similar to the one involved here, that the plaintiffs damages should be limited to the reasonable cost of repairing the railroad cars that plaintiff had bought from defendant. The jury verdict included, among other things, an award for the difference between the value of the cars as actually manufactured, and what they would have been worth if they had measured up to the defendants representations. This Court affirmed the verdict for the larger amount. We held, construing the Minnesota U.C.C., which is identical to 2-719 as adopted in South Dakota, that the limitation-of-remedies clause was ineffective because the remedy as thus limited failed of its essential purpose. The defendant, though called upon to make the necessary repairs, had refused to do Saylor URL: http://www.saylor.org/books Saylor.org 474 so, and the repairs as performed by the plaintiff itself did not fully restore the cars to totally acceptable operating conditions. Here, Justus Homes attempted to help with the necessary repairs, which is more than Fruehauf did in the Soo Line case, but after the repairs had been completed the house was still, according to the jury verdict, not what Justus had promised it would be. The purpose of a remedy is to give to a buyer what the seller promised himthat is, a house that did not leak. If repairs alone do not achieve that end, then to limit the buyers remedy to repair would cause that remedy to fail of its essential purpose. An analogous case is Select Pork, Inc. v. Babcock Swine, Inc.[Citation], applying 2-719 as adopted in Iowa. The defendant had promised to deliver to plaintiff certain extraordinary pigs known as Midwestern Gilts and Meatline Boars. Instead, only ordinary pigs were delivered. Plaintiff sued for breach of warranty, and defendant claimed that its damages, if any, should be limited to a return of the purchase price by an express clause to that effect in the contract. The District Court held that the clause was unenforceable because it was unconscionable, see 2-719(3), and because it failed of its essential purpose. We affirmed,Having failed to deliver the highly-touted special pigs, defendants may not now assert a favorable clause to limit their liability. So here, where the house sold was found by the jury to fall short of the sellers promises, and where repairs could not make it right, defendants liability cannot be limited to the cost of repairs. If the repairs had been adequate to restore the house to its promised condition, and if Dr. Hartzell had claimed additional consequential damages, for example, water damage to a rug from the leaky roof, the limitation-of-remedies clause would have been effective. But that is not this case. There was no double recovery here: the verdict was not for cost of repair plus the entire decrease in market value, but rather for cost of repair plus the decrease in market value that still existed after all the repairs had been completed. [T]he evidence in the record all demonstrate[s] that the repair or replacement clause was a failure under the circumstances of this case. Some of the houses many problems simply could not be remedied by repair or replacement. The clause having failed of its essential purpose, that is, effective enjoyment of Saylor URL: http://www.saylor.org/books Saylor.org 475 implied and express warranties, the plaintiff was entitled, under UCC 2-719(2), to any of the buyers remedies provided by the Code. Among these remedies are consequential damages as provided in 2-714 and 2-715(2). The judgment is affirmed.

1. What did the seller here limit itself to do in case of defects? What was the limitation of remedy?

2. Did Justus Homes disclaim implied and expressed warranties with its contract language regarding limitation of remedies?

3. Was the essential purpose of the limitation of remedy to protect the party benefiting from ithere, the seller of the log home kitor was the essential purpose of the limitation of remedy, as the court said, effective enjoyment of implied and expressed warranties?

4. In a part of the opinion excised, the court wrote, A finding of unconscionability is, as a matter of logic, simply unnecessary in cases where 2-719(2) applies. Would it be easier simply to say that the limitation of liability here was unconscionable?