dissenting. I respectfully disagree. All the testimony in this case unequivocally declares that there was an express warranty that the generator was complete except for the crankshaft and a turbo. Mr. Tenwick and Mr. Dart testified positively that there was an express warranty, and that testimony was not refuted.
It is true that the testimony of the plaintiffs may not be taken as uncontradicted, as a matter of law, but the evidence is strong that the trial judge based his entire decision upon his erroneous understanding that Mr. Tenwick had described the sale as an “as is” one. In his memorandum opinion, the trial judge, at one point, declared that “Indeed, the court distinctly recalls plaintiff Tenwick describing the saleas an ‘as is’ transaction.” The record shows that without question Mr. Tenwick referred to a previous sale between the parties as an “as is” transaction, and the record just as unquestionably shows that Mr. Tenwick repeatedly testified that the sale at issue here was covered by an express warranty.
At another point in his opinion, the trial judge stated that “... one or both of the plaintiffs also admit to the sale’s being that of a used generator ‘as is’... ” The record reveals no such testimony by either plaintiff.
The finding of the trial court is clearly against the preponderance of the evidence, and I would reverse.