I believe syllabus paragraphs 2 and 3 are erroneous; syllabus paragraph 1 is a correct statement but is disregarded by the majority; and paragraphs 4, 5, 6, and 7 are correct statements in the abstract but are misapplied by the majority.
1. “Damages” is not a single remedy, to be contrasted with specific performance or injunction, but is a cluster of remedies. See Section 41-01-11(34), N.D.C.C. [UCC § 1-201(34)], defining “remedy” as used in the Uniform Commercial Code as “any remedial right to which an aggrieved party is entitled with or without resort to a tribunal,” and Sections 41-02-87 to 41-02-100 [UCC §§ 2-708 to 2-721], specifying about a dozen different remedies, including many different kinds of damages as well as specific performance and injunction.
2. The majority opinion, while quoting Section 41-02-98(l-b), N.D.C.C. [UCC 2-719(1 — b)], which states that a remedy for breach is the sole remedy only if it “is expressly agreed to be exclusive,” stands the statute on its head by holding that a provision for liquidated damages is exclusive in spite of the language of the statute.
3. The majority opinion in this respect is especially pernicious when viewed together with Tower City Grain Co. v. Richman, 232 *52N.W.2d 61 (N.D.1975), which held that there must be very special circumstances to justify specific performance of a contract involving fungibles. The present case takes away all other remedies in cases where there is a liquidated-damage clause, and does it as a matter of law precluding a hearing, so the combined effect of the two decisions is to make a liquidated-damage clause the exclusive remedy in almost all cases involving fungibles even though the statute, Section 41-02-98(l-b), N.D.C.C. [UCC § 2 — 719(1—b)], says just the opposite.
4. In paragraph No. 4 of the syllabus the majority says that the question of un-conscionability is for the court as a matter of law. This is correct, but the majority fails to mention that unconscionability, once raised, must be determined after a hearing on the question. Such a hearing is compulsory. See cases collected at Section 2-302:21 of Anderson, Uniform Commercial Code. No hearing was held here.
5. In paragraph 2 of the syllabus the court holds that the Uniform Commercial Code does not purport to affect the rules governing the extent of damages recoverable. This is a statement extracted from Anderson, op. cit., which cites no authority for it. In any case, the “extent of damages” obviously refers to the amount of damages, not the right to collect damages of any specific kind. It therefore is irrelevant to the present case.
6. In the case before us, the appellee elevator company resisted the motion for summary judgment on the ground that subsequent dealings after the agreed delivery date modified the contract. The dealings consisted of partial deliveries extending over many months. Whether this course of dealing constitutes a waiver under Section 41-02-16, N.D.C.C. [UCC § 2-209] is a question of fact for the jury. The Uniform Commercial Code provides, in Section 41-02-15, N.D.C.C. [UCC § 2-208], that “any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.” I do not understand the process under which the majority can conclude, as a matter of law, that the course of performance does not conflict in some respect with performance required by the contract and therefore does not indicate either modification or waiver. There may be cases so clear as to make a hearing on the question unnecessary, but in my view this is not such a case.
In Farmers Union Grain Terminal Assn. v. Nelson, 223 N.W.2d 494 (N.D.1974), and Cargill, Inc. v. Kavanaugh, 228 N.W.2d 133 (N.D.1975), where we held that a liquidated-damage remedy was exclusive, we did so only after a full-scale trial had been held and all the facts were before us.
CONCLUSION
I agree with the majority in declining to overrule Farmers Union Grain Terminal Assn. v. Nelson, supra. For reasons stated above, I dissent from the remainder of the opinion.