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SMITH v. NAVISTAR INTL. TRANSP. CORP.

January 27, 1989

JEARY K. SMITH, Plaintiff,
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORP., NAVISTAR FINANCIAL CORP. and J. MERLE JONES & SONS, INC., Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Plaintiff Jeary K. Smith brings this action charging the Navistar International Transportation Corp. ("Navistar"), Navistar Financial Corp. ("Navistar Financial") and J. Merle Jones & Sons, Inc. ("Jones") with breach of warranty on a Navistar truck purchased from Jones and financed by Navistar Financial. In a counterclaim, Navistar Financial charges Smith with breach of the installment contract. Defendants have moved for summary judgment on Smith's claims, and Navistar Financial has moved for summary judgment on its counterclaim. For the reasons set forth below, the motion for judgment on Smith's claims is granted in part, and the motion on the counterclaim is denied.

 Factual Background *fn1"

 At all times pertinent to this action, Smith, an Indiana citizen, was an independent owner-operator of long distance highway trucks. In late 1984, Smith decided to purchase a new truck. He visited various truck dealers, including Jones, to discuss whether their trucks had certain options and met certain specifications. On November 7, 1984, Smith purchased a Navistar Model F-9370 semi-tractor truck from Jones. To execute the sale, Smith signed a Retail Order which contained the following warranty:

 
International Harvester Company's [now Navistar] Promise to You. We promise to you, the first user purchaser, that we will replace or repair any part or parts of your new International motor vehicle which are defective in material or workmanship without charge for either parts or labor during the first year or 12,000 miles of operation, whichever occurs first.
 
* * * *
 
What You Must Do. We recommend that you bring the vehicle back to the dealership where you purchased it; however, if you are in transit or have moved, take it to the most convenient authorized International Truck Dealer.
 
* * * *
 
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, ALL OTHER REPRESENTATIONS TO THE FIRST USER PURCHASER, AND ALL OTHER OBLIGATIONS OR LIABILITIES, INCLUDING LIABILITY FOR INCIDENTAL AND CONSEQUENTIAL DAMAGES ON THE PART OF THE COMPANY OR THE SELLER.

 Smith also signed an installment contract with Navistar Financial, obligating him to pay sixty monthly installments of $ 1,595.34. That contract contained a provision disclaiming any warranties on the truck beyond those offered by the manufacturer.

 Upon delivery of the truck, Navistar gave Smith an owner's manual which provided in pertinent part:

 
International Harvester will repair or replace any part of this vehicle which proves defective in material and/or workmanship in normal use and service, with new or ReNEWed parts, for the first 12 months from new vehicle delivery date or for 50,000 miles (90,000 Km), whichever occurs first, except as specified under "What is Not Covered."

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