dissenting.
Granules bid on the very goods it subsequently rejected and the bid submitted to the Department of Defense was in competition with Bedford. Bedford won the bid and purchased the goods from the Department of Defense. Granules had access to the goods before entering into the contract with Bed-ford. - Granules did in fact test the aluminum serap before embarking upon performance by accepting delivery of a portion of the goods. This access and testing negates any possible claim by Granules of an implied warranty of fitness for Granules' particular purpose. Richards v. Goerg Boat & Motors, Inc. (1979) 3d Dist., 179 Ind.App. 102, 384 N.E.2d 1084.
*1367Granules' contemplation that the goods would be adequate for its purpose was a unilateral expectation. The contract did not contain or contemplate any specifications or recovery level requirements. The goods did not "fail to conform" to the contract as freely entered into by both parties. Accordingly, I.C. 26-1-2-601 which gives a purchaser the right to reject non-conforming goods is wholly inapplicable.
The goods in this case are totally unlike the goods involved in Jones v. Abriani (1976) 1st Dist., 169 Ind.App. 556, 350 N.E.2d 635, relied upon by Granules. In that case, there was an express contractual warranty that the mobile home bargained for would be "identical with the model home" the purchasers had viewed. 350 N.E.2d at 639. When delivered, the mobile home was totally unlike the model home. The quality of the construction and furnishings was decidedly inferior. The sellers continued to assure that they would cure the defects but failed to do so. Our First District understandably held that revocation of acceptance by the buyers was an appropriate remedy.
I would reverse the judgment and remand with instructions to enter judgment for Bed-ford upon Granules' counterclaim, to enter judgment in favor of Bedford upon its complaint, and to fix the amount of damages which will fully compensate Bedford for the breach of the contract. «