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

P ordered an airplane from Bellanca (D) to be used for crop dusting. P was relying on advertising by D representing the use of the airplane as a crop duster. P also made his purpose known to the sales agent. When the plane was delivered, it included a warranty certificate that disclaimed implied warranties and precluded recovery for consequential and negligence damages. A postcard for activating warranties was also delivered. Someone returned the filled in warranty postcard back to D. That card did not have the disclaimer or incorporate it by reference. The plane did not work as a crop duster. P sold the plane and then sued D for breach of warranties and negligence in construction. P wanted lost profits, cost of repairs, and loss on the resale of the aircraft. The district court granted D's motion for summary judgment holding the disclaimers of warranties precluded recovery. P appealed.

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