Gasque v. Eagle MacHine Co. Limited

Littlejohn, Justice

(dissenting) :

I respectfully dissent and would affirm the lower court.

The lower court, in granting the nonsuit, relied upon the case of Odom v. Ford, 230 S. C. 320, 95 S. E. (2d) 601 (1956). That case was decided before the adoption of the South Carolina Uniform Commercial Code, which became effective January 1, 1968. Under the common law therein declared, there can be no argument but that Gasque’s claim could not be sustained. It is the contention of Gasque that § 36-2-318 of the Uniform Commercial Code changed the common law of this state as relates to the claim here involved. That Code section reads as follows :

Ҥ 36-2-318. Third party beneficiaries of warranties express or implied.

A seller’s warranty whether express or implied extends to any natural person who may be expected to use, consume or be affected by the goods and whose person or property is damaged by breach of the warranty. A seller may not exclude or limit the operation of this section.”

Gasque does not rely, as relates to Sperry Rand, upon any alleged express warranty. The claim against Sperry Rand is based solely on implied warranty involving a claim for loss of anticipated profits, which we refer to as economic loss. This Code section deals only with claims for damages to persons and property and does not change the common law of this state as relates, to privity of contract involving claims for economic loss based on alleged breach of implied warranties.

The statute creates rights not existing before its passage. The rights created are limited to those enumerated. It does not include economic loss or loss of anticipated profits. Such is not encompassed in the ordinary meaning of “property.” There is nothing within the statute to indicate that the legislation intended to extend the warranty to economic loss and such should not be extended by judicial fiat.

In my view, the lower court properly granted the motion for an involuntary nonsuit, and accordingly the judgment of the lower court should be affirmed.