This section contains the nature of the case and procedural background.

P sued D for damages for the breach of an express and implied warranty on the sale of five oil storage tanks manufactured by D and sold to P. In ordering the tanks P informed the retailer who then informed D that the tanks were to be used for the underground storage of oil. The matter went before the jury and D did not move against the petition for a failure to state a claim and at the conclusion of evidence did not move for a directed verdict and took no exceptions to instructions given the jury by the court. After the verdict for P, D moved for a judgment notwithstanding the verdict or a new trial. That was denied. D appealed.

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