MILGARD TEMPERING, INC. v. SELAS CORP. OF AMERICA

Nos. 84-4025, 84-4056.

761 F.2d 553 (1985)

MILGARD TEMPERING, INC., Plaintiff-Appellant-Cross-Appellee, v. SELAS CORPORATION OF AMERICA, a foreign corporation, Defendant-Appellee-Cross-Appellant.

United States Court of Appeals, Ninth Circuit.

Decided May 22, 1985.

As Amended May 24, 1985.


Attorney(s) appearing for the Case

J. Richard Creatura, Gordon, Thomas, Honeywell, Malanca, Peterson & O'Hern, Tacoma, Wash., for plaintiff-appellant-cross-appellee.

Edward M. Lane, Johnson, Lane & Gallaher, Tacoma, Wash., for defendant-appellee-cross-appellant.

Before WRIGHT, KENNEDY and ANDERSON, Circuit Judges.


EUGENE A. WRIGHT, Circuit Judge:

This case presents the question whether a consequential damages limitation justified summary judgment for defendant-seller when the limited remedy of repair and replacement allegedly failed of its essential purpose. We hold that it did not and remand for trial.

FACTS:

Milgard Manufacturing, Inc. cuts and installs glass for use in residential and commercial construction. In 1979, it negotiated a contract with Selas...

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