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Office Supply Co. v. Basic/Four Corp. - 538 F. Supp. 776 (E.D. Wis. 1982)

Rule:

An affidavit of a witness which conflicts with his deposition testimony should, despite the greater reliability usually attributed to the deposition, be considered on a summary judgment motion in determining if there is a genuine issue for trial.

Facts:

Basic/Four Corporation (Basic/Four) manufactured and sold computer systems. Office Supply Co., Inc. (Office Supply) claimed that the system it purchased from Basic/Four was defective and caused it to suffer substantial losses. Basic/Four pointed out that it disclaimed the implied warranties twice and that the disclaimers were written and in italicized print. Nevertheless, the disclaimers were not conspicuous. 

Issue:

Is Basic/Four entitled to summary judgment based on the admission made during the deposition that Office Supply knew of the warranty limitations before the contract was signed?

Answer:

Yes

Conclusion:

The court held that the deposition testimony upon which Basic/Four relied clearly indicated that Office Supply knew of the warranty limitations before the contract was signed and therefore, no genuine issue of material fact existed on that point. Furthermore, the court stated that Office Supply should not be allowed to compel trial by denying admissions made during the deposition.

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