2010AP2067 Viking Packaging Technologies, Inc., v. Vassallo Foods, Inc.

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Contracts
Breach; revocation of acceptance

Partial revocation of acceptance of a commercial unit is barred under sec. 402.608.

“Country Pasta knew when its technicians did their ‘checkout’ of the tin-tie applicator in Viking’s plant that the machine did not function satisfactorily on Country Pasta bags. When all of the machines arrived in Montana in June 2008, and were installed in the Country Pasta plant, Country Pasta could see that the problem had not been fixed. Parrish came to instruct employees and assist with installation. Country Pasta knew that Parrish had not been able to fix the problem when he left in June because Country Pasta agreed to pay for half of his cost to return and try again. Country Pasta knew in July 2008 that the problem it perceived with the tin-tie applicator continued because Parrish told Country Pasta the machine would not work on Country Pasta’s product. Because the seller’s agent made repeated repairs to a machine at the buyer’s request and the machine still did not work as the contract required, the buyer knew, or should have known that the machine would not do good work, and could not be made to do good work. See Wood Mowing & Reaping Mach. Co. v. Calvert, 89 Wis. 640, 643-45, 62 N.W. 532 (1895).”

“The trial court found that when Parrish ‘told [Country Pasta’s] employees that the tin-tie applicator would not work, that certainly … was an indication … that there was not going to be additional work done.’ The trial court also found that ‘there was no evidence presented at trial as to any further discussion of [additional work].’ Thereafter, as the trial court found, Country Pasta “could not reasonably assume that the nonconformity of the machinery would be cured.” These findings make revocation under Wis. Stat. § 402.608(1)(a) and (2) unavailable to Country Pasta.”

Affirmed.

Recommended for publication in the official reports.

2010AP2067 Viking Packaging Technologies, Inc., v. Vassallo Foods, Inc.

Dist. II, Sheboygan County, Van Akkeren, J., Kessler, J.

Attorneys: For Appellant: Te Winkle, William P., Sheboygan; Waldon, Stephanie Erin, Sheboygan; For Respondent: Lanphier, Sean, Milwaukee

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