(dissenting).
I dissent. The defendant has not pleaded, claimed, proved nor argued implied warranty of fitness for a particular purpose. The defendant’s answer and counterclaim allege that the defendant did not get the pipe he ordered. In his pleadings he claims that he ordered “standard” pipe but received substandard pipe in that the wall thickness was only .120 inch and that it was not as represented by the plaintiff.
The defendant operates a factory in which he employs twelve men. He has been *75manufacturing harrow attachments in which pipe is used since 1968. In the past he has been purchasing pipe in quantities of 7,000 to 8,000 feet per purchase from at least two suppliers. A carload of this pipe contains about 22,000 feet.
It is true, as the majority state, that the defendant showed Mr. Luxem through his factory and that he looked at some of the attachments being manufactured. There is, however, no evidence that the defendant sought Mr. Luxem’s opinion or his recommendation in regard to the type, quality, size or grade of pipe which should be used in the manufacturing process. In other words, I find no evidence whatever that the defendant relied on or sought the benefit of whatever skill or knowledge Mr. Luxem might have in this field. He certainly did not rely on Mr. Luxem’s skill in making a choice for him. In fact, to the contrary, the defendant, Mr. Gates, testified as follows:
“Q. What kind of pipe did you order?
“A. I told John that I wanted the same kind of pipe as what I had been using at the same price.
“Q. Did you tell him what kind of pipe you were using?
“A. I did.
“Q. What kind of pipe were you using?
“A. Standard pipe with a wall thickness of .133.
“Q. Yes. You told him you wanted standard pipe ?
“A. That’s right.”
The evidence establishes, according to the expert testimony of record, that “standard” pipe in the trade, universally, has a wall thickness varying from .116 to .133 inch. The pipe which was delivered comes within these limits and it is not disputed that it is not “standard” pipe. I think that the trial judge summed it up correctly when he stated, in ruling from the bench, as follows:.
“However, I find no evidence in the record to specify what kind of pipe Mr. Gates was using, other than standard black pipe. The testimony is that he received standard black pipe, one-inch. As far as the testing specifications are concerned, the evidence also indicates that it’s within this same range.”
The defendant did not plead breach of implied warranty as an affirmative defense nor as a basis for his counterclaim. The majority apparently have concluded that, in some way, this principle has become an issue. If we consider that it has, then, under the provisions of the Uniform Commercial Code, the defendant has the burden of establishing such breach by a preponderance of the evidence. Alco Standard Corp. v. F & B Manufacturing Co., 265 N.E.2d 507 (Ill.App.1970).
An essential element of implied warranty of fitness for a particular purpose under Section 41-02-32, N.D.C.C., which is Section 2-315 of the Uniform Commercial Code, is that the buyer was “relying on the seller’s skill or judgment to select or furnish suitable goods." [Emphasis added.] In reference to this element it is stated in the commentaries contained in Anderson —Uniform Commercial Code, 2d edition, § 2-315:19:
“ * * * that no warranty of fitness for a particular purpose arises when it is clear that the buyer orders goods according to his own specifications and does not rely on the seller’s skill or judgment, * * * ”
And § 2-315:23:
“No warranty of fitness for a particular purpose arises when the buyer receives the exact goods which he ordered.”
In Uniform Laws Annotated — Uniform Commercial Code, Master Edition, Vol. 1, in the official comment with respect to § 2-315, it is stated that “the buyer, of course, must actually be relying on the seller” if a warranty is to arise under this section.
*76In Bender’s Uniform Commercial Code Service, Vol. 3, § 7.02, at 7-23, in referring to the Uniform Code and also the Uniform Sales Act, it is stated:
“Under both statutes there is the necessity that the buyer rely upon the seller’s skill or judgment in selecting or furnishing suitable goods.”
The defendant Gates, in my opinion, has not sustained the burden of proof. In fact, by his own testimony he has admitted that he himself made the selection and ordered the pipe in accordance with his own specifications when he stated on the witness stand that he ordered standard pipe, which has a definite and specific meaning in the trade.
For the foregoing reasons it is my opinion that the judgment of the trial court should be affirmed.