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Herbstman v. Eastman Kodak Co.

Decided: December 18, 1974.

CLIFFORD N. HERBSTMAN, PLAINTIFF-APPELLANT,
v.
EASTMAN KODAK COMPANY, A CORPORATION, DEFENDANT-RESPONDENT



Carton, Crane and Kole. The opinion of the court was delivered by Carton, P.J.A.D.

Carton

[131 NJSuper Page 442] Plaintiff brought this action against defendant manufacturer for breach of a warrant of merchantability of a new camera which he had purchased and claimed to be defective. The trial judge, after a trial in which the salient facts were substantially undisputed, dismissed the complaint on condition that defendant make the necessary repairs or replace the camera with a new one. He ordered that on failure to comply with this condition judgment should be entered in favor of plaintiff for the cost of the camera. Plaintiff appeals, contending that he was not bound to accept as his sole remedy the repair of the camera. Defendant has expressed a willingness to make necessary repairs.

Plaintiff purchased a Kodak Pocket Instamatic No. 40 camera at a retail store in preparation for a proposed trip to Israel. Although he owned several more expensive cameras than this one, he maintained that he chose the Kodak because of its reliability and simplicity of operation, as expressed in defendant's advertising literature.

Before departing on the trip plaintiff inserted film in the camera. The camera performed satisfactorily. However, after arriving at his destination the camera failed to function properly after six photographs were taken. It appeared that the film advance mechanism had jammed, preventing further use of the camera. Plaintiff also claimed that he took the camera to three separate camera stores, which reported they were unable to repair it.

When he arrived home from his trip plaintiff purchased a second camera of the same description and at the same cost as the original. He then requested defendant to refund the monies paid for the defective camera. Defendant refused to do so, relying upon the exculpatory clause contained in the instruction booklet inside the package in which the camera was delivered.

The true issue presented is not, as both parties seem to argue, whether plaintiff is protected by an implied warranty of merchantability. More properly, the inquiry is whether he is bound by defendant's attempt to limit the remedies available to him for breach of warranty.

The confusion arises because of the tendency on the part of both parties to blur the distinction between warranties and remedies set forth in the Uniform Commercial Code. Exclusions and modifications of warranties and limitations of remedies are separately treated in the statute. See N.J.S.A. 12A:2-316 and N.J.S.A. 12A:2-719, discussed hereinafter.

The warranty provision in this case is couched in language of the available remedy, i.e., free repairs. It appears under the heading "warranty" on the back page of the booklet and reads, in pertinent part:

* * *

We will repair your camera at no charge within one year after purchase, except for damage caused by accident or abuse. This warranty applies only to the camera itself, and Kodak cannot be responsible for other losses or damages of any kind resulting from equipment failure.

Except as mentioned above, no other warranty, express or implied, applies to this camera.

Thus we interpret defendant's warranty, apart from the question of disclaimer, to mean that the camera will be free of mechanical defects which result in the failure of the camera to perform in ...


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