concurring. I agree with the majority’s disposition of the case, but write to expand on the second and third points on appeal. This appeal concerns the terms of an oral contract created between Graham Construction Company, Inc. and Roscoe Earl. As the majority opinion correctly concludes, the question on appeal is whether the trial court was correct in determining that Graham’s express warranty negates Earl’s implied warranty. Yet, the majority goes on to state that, in addition to the express warranty that the roof would not leak, Graham also created an implied warranty of sound workmanship and proper construction. Bullington v. Palangio, 345 Ark. 320, 45 S.W.3d 834 (2001). Any implied warranty created by Graham is inconsequential to our review on appeal because the critical issue involves the effect of Graham’s express warranty on the implied warranty created by Earl in supplying the materials, plans, and specifications. The majority opinion fails to do any analysis on this point.
In Housing Authority of City of Texarkana v. E.W. Johnson Construction Co., 264 Ark. 523, 573 S.W.2d 316 (1978), we stated:
We are persuaded that where, as here, the owner supplies plans and specifications to a contractor detailing the work to be performed, the owner implicitly warrants the adequacy and suitability of the plans and specifications for the purpose for which they are tendered. We are further persuaded that this implied warranty is not nullified by any stipulation requiring the contractor to make an on-site inspection where the repairs are to be made and a requirement that the contractor examine and check the plans and specifications. However, a competent and experienced contractor cannot rely upon submitted specifications and plans where he is fully aware, or should have been aware, that the plans and specifications cannot produce the proposed results. Therefore, where delays result, as here, because of faulty specifications and plans, the owner will have to respond in damages for the resulting additional expenses realized by the contractor. Moreover, the owner’s breach of its implied warranty may not be cured by simply extending the time of the performance of a contractor’s assignment.
Id. at 533, 573 S.W.2d at 322 (emphasis added). Thus, in general, an owner who supplies plans and specifications impliedly warrants their adequacy and suitability. Id. Even so, under freedom to contract principles, parties are free to contract otherwise. In this case, when Earl supplied Graham with the materials, plans, and specifications, an implied warranty was created as to the adequacy and suitability of those materials, plans, and specifications. Graham and Earl were, however, free to contract otherwise upon negotiating the service contract. In other words, Graham could have expressly warranted that, regardless of Earl’s implied warranty, the roof would not leak. An express warranty on the subject of an asserted implied warranty is exclusive, and thus there is no implied warranty on the subject. Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978).
It was the trial court’s responsibility, sitting as the finder of fact, to determine the terms of the warranty. In this case, the evidence regarding the terms of the agreement came largely from the testimony of Graham’s representative, Lonnie Graham, and Earl. In sum, Earl testified that Graham “guaranteed me [the roof] wouldn’t leak.” Graham, on the other hand, asserted he never represented to Earl that the roof would not leak as a result of the product or procedures supplied by Earl. We will not reverse unless the trial court’s decision is clearly against the preponderance of the evidence. I cannot say that the trial court erred in concluding that the terms of Graham’s express warranty that the roof would not leak negated Earl’s implied warranty that the skylight materials, plans, and specifications were adequate and suitable. Carter v. Quick, supra.
Finally, the trial court did not in fact shift the burden of proof to Graham. When Earl, as the plaintiff, alleged and proved the terms of Graham’s general warranty that the roof would not leak, which express warranty negated any implied warranties, Earl bore the responsibility of proving only that the roof leaked. The trial court’s findings regarding the terms of the agreement were not clearly against the preponderance of the evidence. I would affirm.