(dissenting).
Procedurally, the facts in the instant case are as follows: The plaintiffs Hau-gen and American Family served the defendant Ford Motor Company with a summons and complaint on January 25, 1971, in which they allege the facts upon which their claim for relief is based. The complaint contains no allegation that the Ford warranty covering the automobile is unconscionable. Ford responded with a motion for a more definite statement of the claim, seeking in particular the serial number of the automobile, in order to determine which warranty applied. As a result of that motion, an amended complaint was served upon Ford. The amended complaint alleged negligence, a breach of both implied and express warranties of fitness, and a claim for relief based upon strict liability; but it contained no allegation that the warranty was unconscionable or that thé limitations thereto were unconscionable. The pertinent parts of the answer follow :
“VI.
“With reference to the allegations of the Amended Complaint regarding warranties, Defendant alleges that any warranties as alleged in said Amended Complaint were expressly waived and voided and in lieu thereof the Plaintiff, Hau-gen, accepted a basic warranty given expressly in lieu of any other express or implied warranty, condition or guaranty with respect to the vehicle or any part thereof, including any warranty of merchantability or fitness. * * * ”
“VIII.
“Defendant alleges that the Plaintiff, Haugen, was negligent in the operation of the vehicle at the time of the alleged fire and that such negligence materially caused or contributed to the happening of the fire and resulting loss to plaintiffs.”
“X.
“Defendant states that under the basic warranty herein before referred to, damage by fire is specifically excluded.”
Ford served interrogatories upon American Family. Neither the interrogatories nor the answers thereto refer to the warranty or the unconscionability of the warranty or exclusions thereto.
The plaintiffs moved for summary judgment on the basis of the pleadings on file *472and the depositions of the plaintiff Luther C. Haugen and of Dr. Ordean Anderson, a forensic engineer. The plaintiffs’ motion for summary judgment contains no challenge to the basic Ford warranty as being unconscionable. Affidavits of engineers were submitted by both parties and an affidavit of the shop foreman in charge of repair work at the garage where the automobile was purchased was submitted by Ford. The affidavits deal with factual data and opinions as to the cause of the fire. Nothing in the affidavits is directed at the un-conscionability of the basic warranty.
There were three separate hearings on the motions for summary judgment. The first was held on July 24, 1972. Several affidavits and documents were submitted. A second hearing, on September 11, 1972, was held to allow Ford to submit an additional affidavit of one of its engineers. A third hearing on the motion was scheduled for March 20, 1973, at which time plaintiffs submitted a further affidavit of their expert engineer. At this third hearing, Ford filed a trial brief in support of its motion for summary judgment. Ford stated it wished to argue primarily that it was entitled to a summary judgment as a matter of law. Both parties stated they, had no further evidence to submit. The court stated it would take the motion under advisement and would hear arguments of counsel off the record. Both Ford and plaintiffs agreed that such arguments should be held off the record. Thereafter the hearing concluded. There is nothing in the record of the trial court proceedings to indicate that the plaintiffs ever asserted that the basic Ford warranty was unconscionable.
We do not know what was argued off the record, but in Ford’s trial brief we note the following:
“The question now involved is whether the disclaimer of liability for fire is against public policy or unconscionable.”
Ford contended in its trial brief that its warranty excluded damages caused by fire and that this exclusion was not unconscionable. There is no evidence in the record that plaintiffs submitted a brief in opposition thereto in which the consciona-bility of the warranty or of the exclusion was challenged.
The only other reference to unconsciona-bility is found in the trial court’s conclusions of law, wherein it is stated that the basic warranty and limitation of liability are not against public policy or unconscionable.
The briefs of the parties on appeal discuss the question of unconscionability.
In the plaintiffs’ appellate brief we find the following:
“The trial court was not presented with any evidence to support its conclusion of law that the disclaimer was not unconscionable.
“Thus, under the test of Section 41-02-19, N.D.C.C., the disclaimer is unconscionable and not entitled to enforcement.”
The plaintiffs assert that the trial court was not presented with any evidence to support its cónclusion that the warranty was not unconscionable. However, plaintiffs fail to point out how the record discloses that the warranty is unconscionable. They apparently desire a determination of this issue without a further hearing. They do not ask for a remand.
Ford’s argument also contemplates a determination of the issue without a remand for a further hearing.
“There is no injury to the person of anyone involved in this case, and obviously the loss is commercial; hence, the trial judge, in ruling that the limitation of liability and disclaimer was not unconscionable is perfectly clear.”
In essence, the plaintiffs assert that the facts and circumstances existing at the time of the purchase of the automobile in question do not support the findings of the *473trial court that the disclaimer of liability and limitation of damages were not unconscionable. They rely upon the fact that plaintiff Haugen was not required to sign or consent to the terms of the warranty, that the transaction was not a bargained-for transaction between parties of equal standing, and that Ford made no effort to make Haugen aware of the meaning of the warranty and disclaimer.
Ford counters with the argument that, in essence, to hold the warranty and limitation unconscionable would require Ford to go into the insurance business, resulting in higher costs to the consumer; that its basic warranty and disclaimer are in accordance with the provisions of the Uniform Commercial Code; that the pertinent portions of the warranty and disclaimer are printed in capital letters and very conspicuous; and that Haugen was aware of the existence of a warranty and charged with the knowledge of its contents.
On the basis of the briefs and arguments presented by both parties on appeal, they are expecting this court to make a determination of the conscionability issue, not to send it back for a hearing.
I would conclude that the majority, by remanding the case for trial, has merely postponed to another day the decision the parties are requesting be made now. In light of the record made by the parties thus far, it not likely that this court will be in any better position to decide this issue when the trial has been completed.
This action is not between the plaintiff purchaser and some local dealer, but is between the purchaser and the manufacturer.
What evidence could be produced on a remand relevant thereto is a mystery to me.
It is also my opinion that we should decide all issues involved in the granting of the motion for summary judgment at this time and not merely say that since the matter must be remanded on the uncon-scionability issue that eliminates the necessity of deciding the other issues, of negligence, strict liability, and the applicability of the Uniform Commercial Code..