dissenting:
I respectfully dissent from the majority opinion wherein it is held that it was not error for the trial court to give Instruction 10-A. This instruction states -that the employee for the defendant, Casto Trader Sales, Inc., a Corporation, did undertake to repair or correct such defect in 'the hot water heater. This does not appear to me to' be a correct statement of the evidence introduced during the trial of this case with regard to this matter. The employee never did undertake to' repair the hot water heater. He merely told the plaintiff to leave it on ■and that he would be back the next day. Therefore, it would appear that there was no basis in the evidence to support this instruction, and it has been repeatedly held that such 'an instruction constitutes reversible error. Roberts v. Railroad Co., 72 W.Va. 370, 78 S.E. 357; Dangerfield v. Akers, 127 W.Va. 409, 33 S.E.2d 140.
On this ground alone, I would affirm the Circuit Court acting as an Intermediate Appellate Cotut in holding that it was error to give this instruction, 'and would remand the case to the Common Pleas Court of Kanawha County for a new trial.
The majority opinion also holds that the so-called disclaimer in the warranty which excluded all other warranties, express or implied, was an affirmative defense and had to be specially pleaded under Rule 8 (c), R.C.P. The entire warranty was placed in the evidence by agreement of the parties and relied on during the trial. I am of the opinion that even if the disclaimer is an affirmative defense, inasmuch as it was tried by an express agreement of the parties, if should be treated in all respects as if it had been raised in the pleadings under the provisions
*561of Rule 15(b), R.C.P. This procedure is supported by 3 Moore’s Federal Practice, Second Edition, § 15.13 [2] at page 987, wherein it is stated: “Rule 15 (b), of course, is applicable to defenses as well as to claims, ‘and to the extent to which it applies, Rule 15(b) operates as an exception to the rule that defenses not pleaded are waived. The fact that a defense, even an affirmative defense, has not been formally pleaded is immaterial if the issue was tried by express or implied consent.” [Emphasis supplied.] Such procedure has been specifically approved in the case of Lomartira v. American Automobile Insurance Company, 245 F. Supp. 124. This Court has clearly indicated that such procedure should be followed. See Floyd v. Floyd, 148 W.Va. 183, 133 S.E.2d 726; Dunning v. Barlow & Wisler, Inc., 148 W.Va. 206, 133 S.E.2d 784.
Inasmuch as this sale occurred in March, 1964, the Uniform Commercial Code is not applicable because it was not effective until July, 1964. Consequently, we cannot consider the provisions of the Uniform Commercial Code in the disposition of this case. The oases of Payne v. Valley Motors, 146 W.Va. 1063, 124 S.E.2d 622, and Williams v. Chrysler Corporation, 148 W.Va. 655, 137 S.E.2d 225, would therefore have to be considered, and if the Court at this time does not agree with these decisions they should be specifically overruled.
For the reasons stated herein, I would affirm the judgment of the Circuit Court of Kanawha County -and remand the case to the Common Pleas Court of Kanawha County for a new trial.