Opinion
Appeal from Pulaski Circuit Court, Second Division; Warren Wood, Judge.
ON REHEARING
FOGLEMAN, Justice (dissenting).
I would grant the rehearing sought by appellee. In the original decision, 244 Ark. 943, 428 S.W.2d 46, we entirely overlooked arguments of appellee as to waiver. It was based entirely upon the applicability of the Uniform Commercial Code. It does not matter, however, whether we apply the Commercial Code or the common law as to the alleged breach of warranty, because the undisputed evidence on behalf of the appellant clearly shows a waiver of any breach of warranty by his failure to reject the machine or to notify appellee within a reasonable time. This court has held that similar actions constituted waiver as a matter of law and justified a judgment or directed verdict in favor of the seller. Cases in which the UCC provisions were considered are: Hudspeth Motors, Inc. v. Wilkinson, 238 Ark. 410, 382 S.W.2d 191; Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S.W.2d 142; Ingle v. Marked Tree Equipment Co., 244 Ark 1166, 428 S.W.2d 286. A case in which the court held that there was waiver under the common law is Kern-Limerick, Inc. v. Mikles, 217 Ark. 492, 230 S.W.2d 939. Numerous other cases based on common law waiver are cited in that opinion.
I am of the opinion that the action of the trial court in granting a directed verdict can be sustained on the basis of waiver alone and that it was unnecessary for us to decide whether or not the Commercial Code applied.