Wilk Paving, Inc. v. Southworth-Milton, Inc.

Wilk Paving, Inc. (Wilk) (plaintiff), a construction company, purchased an asphalt roller from Southworth-Milton, Inc. (Southworth) (defendant) in October 1989. Southworth warranted repair and replacement for defective parts. Problems with the asphalt roller began two months after purchase. First, repair work was done to repair a leaking motor and electrical system. Then, the following summer, oil was leaking from the brake housing. Six weeks later, Wilk noticed the front drive motor was leaking oil. A week later, the water pump seal was leaking and required work. In August, the starter failed because of loose wiring, and an oil plug broke off. Southworth was notified of all these problems except the breaking off of the oil plug, and it made repeated assurances that the repairs would be successful. According to Wilk, it was difficult to drive the roller onto a trailer for transportation because of the hydraulics. In September 1990, Wilk’s president told Southworth that he no longer wanted the roller, and he offered to return it for a refund of the purchase price, less a reasonable fee for rental during the time for which it possessed the roller. In November, Wilk had stopped using the machine and left it parked in its lot. In 1992, shortly before trial, the roller was still leaking oil. Wilk filed suit for breach of contract and express warranty. Southworth argued that it was not given a reasonable opportunity to cure and that Wilk had waived its right to revoke acceptance by continuing to use and possess the roller. A jury awarded Wilk damages in the amount of the purchase price, finding that Wilk’s use of the roller after revocation was not unreasonable. Southworth appealed.