specially concurring.
I feel compelled to present a different point of view from that expressed by Justice Rooney, Retired, in his special concurring opinion. The measure of damages is not addressed in the majority opinion because it is not an issue in this case. Apparently Justice Rooney and I agree as to what I perceive to be the general rule. A buyer who becomes liable to his customers as a result of the seller’s breach of contract with respect to the goods sold can recover damages for that liability from its seller pursuant to the Uniform Commercial Code provisions providing for consequential damages (§ 34-21-294, W.S.1977). See Louis DeGidio Oil and Gas Burner Sales and Service v. Ace Engineering Company, Inc., 302 Minn. 19, 225 N.W.2d 217 (1974); the cases collected at § 14[a] Annot., 96 A.L.R.3d 299 (1979); and White & Summers, Uniform Commercial Code § 10.4, p. 392 (2d Ed.1980). I am convinced, however, that the trial court should be cautious in pursuing Justice Rooney’s advice.
*1056In Kirby Building Systems v. Mineral Explorations Company, Wyo., 704 P.2d 1266 (1985), we noted that the jury found Drake Building Corporation to be 35% negligent. It is interesting to note that Centric Corporation was only 20% negligent. While my mathematical computations are always subject to correction, the jury verdict of $8,392,216.90 reduced by the percentage attributable to the fault of the plaintiff of $419,610.85 leaves a balance of $7,972,606.05. Thirty-five percent of that is $2,790,412.12. That was the liability which Drake disposed of in compromising the negligence claim against it for the sum of $250,000. I do not understand how we can really say that Drake Building Corporation should not have to pay again. They haven’t paid the first time yet.
In his special concurring opinion, Justice Rooney’s thesis is that consequential damages arising out of a contract claim under the Uniform Commercial Code are controlled by the contribution provisions in our statutes pertaining to negligence actions. I am not satisfied that necessarily is true, and I would urge the trial court, with the assistance of briefs by counsel, to give the matter careful consideration if it must be addressed.
In Sheldon v. Unit Rig & Equipment Co., 797 F.2d 883 (10th Cir.1986) that court reversed a determination by the United States District Court for the District of Wyoming which had held, in effect, that a plaintiff who was found to be more negligent than a defendant as the jury applied our comparative negligence statute could not recover for a breach of warranty claim. The United States Court of Appeals held that the degree of the injury proximately resulting from the breach of warranty might be controlled by the percentage of negligence attributable to the plaintiff but that the balance of his claim was recoverable. The result in Sheldon v. Unit Rig & Equipment Co., supra, is like that of Texsun Feed Yards, Inc. v. Ralston Purina Co., 447 F.2d 660 (5th Cir.1971), and Signal Oil & Gas v. Universal Oil Products, Tex., 572 S.W.2d 320 (1978). I perceive those authorities to be analogous to the situation presented in this case.
If a negligent buyer is not foreclosed from breach of warranty recovery even though his negligence, as compared, may have exceeded that of the seller then a party in the position of Centric Corporation would not be foreclosed by the contribution statute from recovering its consequential damages attributable to its own conduct in the context of proximate cause. A fact finder might use the comparative negligence determination in resolving the proximate cause question, but I am not persuaded that it would be bound to do so.
To reiterate, this issue was not before the court for decision in this case, but it seems to me a careful investigation is justified before adopting the views set forth in Justice Rooney’s special concurrence.