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Mack Trucks of Ark., Inc. v. Jet Asphalt & Rock Co. - 246 Ark. 101, 437 S.W.2d 459 (1969)


1965 Ark. Acts 35 (codified at Ark. Stat. Ann. § 85-2-318.1 (Supp. 1967) eliminated lack of privity as a defense in any action brought against the manufacturer or seller of goods for breach of warranty, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume or be affected by the goods.


A partnership of Haynie & Williams purchased two Mack diesel trucks from defendant truck dealer, Mack Trucks of Arkansas, Inc. (dealer). The partners had specified the work on which the trucks would be used and certain requirements necessary in the prosecution of their business of operating a gravel plant and an asphalt plant. Diesel engines were specifically required by the purchaser. The trucks were built by defendant Mack Trucks, Inc. (manufacturer), a manufacturer of trucks and diesel engines, after the order for them had been given by the purchasers. No warranty was mentioned in the purchase order signed by defendant dealer and the purchasers. Subsequently, the trucks were sold to the Andersons, who thereafter, leased the same to plaintiff Jet Asphalt & Rock Co. (Jet). After the lease of the equipment, Jet complained to the dealer of oil leakage and excessive oil consumption by both units. Despite numerous repairs by the dealer, Jet remained unsatisfied. Over the protest of both defendants, Jet purchased diesel units for both of the trucks from another manufacturer and caused the Mack units to be delivered back to the Mack dealer. After defendants refused the demand of Jet for reimbursement of its cost of replacing the diesel units, Jet brought the present action in Union County against both the manufacturer and dealer. Jet’s cause of action was based upon alleged breach of an express warranty exhibited with the complaint and of an implied warranty of fitness for the purpose for which the trucks were sold. The circuit court held that there was an implied warranty of fitness for the purpose for which the trucks were bought  and entered a judgment against defendants for $5,000 as damages for breach of implied warranty of fitness of two diesel truck engines. Defendants dealer and manufacturer sought appellate review, challenging both the venue at which the complaint was made as well as the lack of privity between the parties.


  1. Did Jet institute the complaint at a proper venue?
  2. Was there an implied warranty of fitness on the subject properties?


1) Yes. 2) Yes.


With regard to the first issue, the Supreme Court of Arkansas held that the venue was proper because defendants failed to offer evidence of the essential facts to show that the action was brought in the wrong county. The court also determined that defendants had waived their objections to venue because they filed an answer that did not preserve their special appearances or objections. Anent the second issue, the court concluded that there was an implied warranty of fitness for the purpose for which the trucks were bought. According to the court, lack of privity was not a defense because the use of the product by the truck lessee was reasonably foreseeable.

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