dissenting. There certainly was no express warranty in writing. To the contrary, the circumstances absolutely contradict and negate that possibility. As part of the bargain Celotex furnished a surety bond, with Aetna Casualty & Surety Company as surety, guaranteeing that for a period of 20 years leaks would be repaired by Celotex, up to a maximum expenditure of $10,350. The school district paid a $2,070 premium for that “20-year Guaranty Bond. ” When two contracts are executed as part of the same transaction they are to be construed together, as one instrument. Gowen v. Sullins, 212 Ark. 824, 208 S.W. 2d 450 (1948). How can it be supposed that the parties were agreeing upon a 20-year express warranty when at the very same time the school was paying a substantial premium for a service contract by which Celotex bound itself to repair any leaks, up to a total expenditure of $10,350?
With respect to the possibility of a parol warranty, the majority opinion discusses “affirmations and statements” in literature and brochures supplied by Celotex in its advertising and promotion program. The opinion then lists eight numbered statements which apparently are considered by the majority to amount to an express warranty.
There are two insurmountable obstacles in the path of the majority’s reasoning. First, the statements were mere advertising which appeared on the jacket of a phonograph record that Barrett, Celotex’s predecessor, used promotionally. The statements are nothing more than a seller’s commendation or “puffing” of its own goods, which do not amount to a warranty under the Uniform Commercial Code. Ark. Stat. Ann. § 85-2-313 (2) (Add. 1961). Indeed, the only positive statement among the enumerated eight is that two plies of Celotex’s bond ply are the equivalent of four plies of conventional roofing. Even so, there is no proof whatever that a conventional four-ply roof is warranted to last for 20 years. Quite the opposite, such roofs appear at most to be accompanied by a surety bond such as the one offered by Celotex with its two-ply roof. So the two were apparently equivalent, as they both qualified for the same kind of guaranty bond.
576 S.W. 2d 709Second, there is no showing that the architect, the contractor, or the school district ever saw the advertisement stressed by the majority, much less is it shown that any of those contracting parties relied upon the advertisement in deciding to use the two-ply roofing system. Yet the fact now develops, according to the majority opinion, that the statements in the unseen advertising matter constituted an express contract between the parties, upon which their minds met and came to an agreement. I simply do not see how a court can seriously reach such a conclusion and therefore record my dissent.
Fogleman, J., joins in this dissent.