dissenting. I do not agree with the majority in its interpretation of the contract between Dr. Gardner and Moss.
It is conceded that, under § 68-1415 of Ark. Stats., Moss was hound to give Dr. Gardner a hay baler which would bale hay, and it must also be conceded [as it is impliedly conceded by the majority opinion] that this was not done.
In addition to the above warranty provided by law, the parties had a right to enter into any additional contract. This they did. The additional contract was that Moss would furnish certain parts under certain conditions. This was separate and distinct from that created by statute.
Thus we are dealing with two separate contracts or warranties, (a) That one created by law, and (b) the one made by the parties.
To my mind it is clear that the words “. . . all other warranties express or implied” relate to contract (b) and means that Moss would not, under that contract, be expressly or impliedly hound to do more than furnish certain parts under certain conditions. In other words, Moss was bound, under contract (b) to do something in addition to contract (a) and not in lien thereof.
Is any one naive enough to believe that Dr. Gardner would have bought the hay baler if Moss had explained to him that the contract of sale was as the majority now interprets it! Would not Dr. Gardner have been foolish to pay out a large sum of money for something he might not be able to use? Does anyone believe that Moss would ever sell another hay baler to anyone under this kind of a sales contract if he explained it in advance as the majority has interpreted it? If not, then it must be assumed that Moss understood the contract with Dr. Gardner as I have interpreted it, or he meant to deceive him. For one, I do not believe Moss meant to deceive Dr. Gardner.