*1 not be sustained under any abandonment
statute where intent to abandon is relevant. points
These are overruled.
Appellant’s point seventh trial
court year erred in in the ten
period of non-use during of water the time application
which their to the Commission
for a change points in water diversion
pending. It is unnecessary for us to de- point
termine this holding view of our point
under one. unnecessary
It also that we determine
appellants’ remaining points eight and nine.
They are that the trial court should have
considered by appellants the use of water
during year period relevant ten even though the water was at unau- obtained points,
thorized diversion and that the trial
court holding appeal erred in that an gov- Commission to the district court
erned the substantial rule.
These points are immaterial in view our
disposition point one. judgment the trial court is re- judgment
versed and is here rendered that Rights
the orders of the Texas Com- Water cancelling appellants’
mission Permits 260 hereby they
and 1083 be and are vacated naught.
and held for KANSAS DEERE COMPANY OF
JOHN CITY, Appellant, TENBERG, Appellee.
Kenneth 7071.
No. Appeals Texas.
Court of Civil
Beaumont.
Sept.
against defendant, Hajek, the resident required by as subdivision 4 of art. V.A.T.S.
“POINT TWO trial “The court erred in overruling ap- pellant’s plea privilege appellee that action, prove failed to that a cause thereof, a part arose or accrued in La- Texas, County, vaca requried as by sub- divisions 27 and 23 of art. V.A.T.S.” Tenberg sought to rescind purchase of the tractor on the by basis that selling and delivering tractor, said the defendants then and there warranted the said John Deere new, tractor to be in perfect condi- tion, and in all respects fit proper and for use in operations, farm pur- that he Coleman, Dallas, Jr., appel- E. for James chased said tractor and equipment, relying lant. on such representations warranty, for $5,390.00, Cross, Yoakum, Mun- E. Houston the value of a James John Gonzales, Deere tractor son, appellee. traded in. In alternative, Tenberg sought to consequential recover PARKER, damages mentioned above. Justice. On (before October the Uni- Tenberg, Kenneth a resident of Lavaca form effective), Commercial Code Texas, became County, Hajek, a sued F. resi- John Tenberg purchased Implement County, Texas, dent of Lavaca and John Company a 1010 Deere diesel tractor. Company City, Deere a Mis- of Kansas thereto, Prior Tenberg had read adver- corporation place souri with an office and publications tisements Dallas, County, of business at Dallas Tex- various as, per- fitness of jointly severally, tractors to to recover the form certain farm work. He testified ne purchase price of a sold relied representations these and that County, by de- Texas tiff the tractor did up not live fendant, the adver- Hajek, tendering the tractor All representations tisements. such by alternative, Hajek. plaintiff sought In the advertising were read Tenberg long damages for economic prior purchase of the tractor. This having equip- reason to secure other testimony as advertising is not in accord ment to do his farm work when the tractor petition. At pur- the time of the being repaired. Dis- sale, chase and trict Court of Lavaca Texas over- parties two sale, involved signed privilege ruled the of John agreement, written certain portions City, hence this of Kansas agreement are as follows: appeal. Appellant points error: two “I (we) [Tenberg] understand agree that in selling the goods covered
“POINT ONE you order [Hajek] are acting agent of the “The manufacturer trial court or of erred in overruling ap- pellant’s wholesale plea of distributor privilege appellee since of the manufac- failed to establish a turer cause of action [John you Deere] are an
independent dealer and Warranty have sold the of the conditions of this Agreement.” goods your own account as such. [Hajek] “Seller warrants new each agreement by par- The execution of the Deere machine free from defects to be ties is not There is thereto contested. *3 workmanship. in materials or obli- that or nothing agreement warrants gation warranty this of Seller under is fit to do represents that prove replacing parts limited to which Tenberg to any particular seeks re- work. proper use defective normal and with sale is in scind a sale. The contract of warranty period. within the The war- in writ- writing. To rescind this contract ranty Deere period (1) is: For all John it place ing, the burden to is on machines, except and Deere Lawn John under its terms prove and that Tractors Deere attach- Garden and John to This he failed he is entitled to rescind. therefor, delivery ments 12 months from do. use, purchaser which- to or 1500hours of had been testified there never * first, ever occurs Hajek part perform refusal on the “It will be responsibility pur- agreement up until the terms of chaser [Tenberg] to deliver machine time he filed this suit on October Seller’s shop, service or if this is not proof any attempt by There was no nor possible, any to reimburse Seller for appellee prove specific part that a was
travel or transportation expense involved Hajek replaced, that re- defective and not in fulfilling this warranty. replace part, fused to defective or any alleged parts. He
value of defective repre- dealings any agent no had with or warranty “The above is in lieu of all Company prior to sentative Deere otherwise, warranties, statutory other or John purchased the date he the tractor implied, repre- all expressed or other Hajek. The latter was a dealer Purchaser, and sentations to all other agent Company. The respect to obligations liabilities with or hours, was re- tractor was used over implied such machines times, replaced, paired many parts fitness, merchantability ranties At engine including replacing the head. such obligation under all Seller’s repaired being one time not exceed those set out warranties shall period over four months. warranty representation or above. No whatsoever, expressed implied, or There is Deere Com- or by been made the manufacturer whole- pany agency had maintained an ever or machines sale distributor of Lavaca Texas. Purchaser, and relied on [John Deere] controverting plea, Tenberg his relied authority to make and Seller has no upon of Article subdivisions 23 and 27 warranty representation be- such or Civil the State Revised Statutes of wholesale half of such manufacturer or of Texas. In no event shall Seller distributor. for incidental or liable Tenberg alleged proved loss of damages injuries including or he and each were residents of per-
crops inconvenience or or County. Tenberg had no cause of forming contracts. the tractor against Hajek, containing
pursuant to a contract written providing limited warranties exclusive given Purchaser assistance “No Tenberg. Tenberg remedies available acting anyone with him Seller implied rely upon breach warran cannot goods shall repair operation ex implied warranties were ties because part signed of Seller a waiver on the cluded in the written instrument constitute it purpose sonably fit for the Seed by Tenberg. Eastern accepted Antonio, (San was sold. Pyle, S.W.2d Co. v. Tex.Civ.App., Pyle v. 1945); Eastern Seed substance, pleadings, in were: Plaintiff’s 145 Tex. tractor, selling defendants That their Gulick, Asgrow (1946); Co. Seed proper for farm it be fit and warranted Antonio, Tex.Civ.App., (San S.W.2d 438 operation. That a defects series of occur- e.). error ref. r.n. That their tractor red and recurred. case, purchas- perform in condition the seller never been to warranties. farm tractor. That ordinary limitations tasks of a agreed er seller unfit as a farm tractor. type, totally to serve of this In a case damages, warran- recover as That should beyond the terms of bound defin- agreement *4 ty purchase price paid the the written fixed do $1,154.50 plaintiff paid others to liabilities of rights and ing the Holland, because this trac- on his farm work Hajek. Logan and Dunlap perform. Elmberg tor did ; Co. v. not E. F. (1860) (Ama- 234 S.W. Hardware controverting plaintiff affidavit In his S.W. rillo, Tex.Civ.App., 1921), aff’d 267 defendant, That Deere Com- alleged: John 1924). (Tex.Com.App., pany, published and distributed bro- read, which he chures and advertisements sought consequential damages The radio, newspaper and television and adver- of language by the are excluded tisements, represented which all the tractor no “In it is stated: wherein the contract power to farm bought he had sufficient do for inciden- liable Seller be event shall plowing and other farm work. That damages injuries tal or representations that tiff these relied crops of inconvenience and had heard read before he performing or loss in contracts.” this tractor. Likewise, provisions the of the contract hearing plea On a privilege, of their of this of applied to record show cause plaintiff evidence, offered was by Tenberg against action or John contradicted, prove all the alle- of above Company. Deere gations. required This was all he was points of error appellant’s Each of to do. Company Deere does not con- John the of judgment The order tend, sustained. either in pleadings in the trial Texas, County, of Lavaca District Court court, court or its brief in that it did of privilege of plea overruling not manufacture plaintiff this tractor which John re- City, is Company Kansas Deere purchased. attorney The representing John adjudged ordered it is here versed Company, Deere during course of Company Deere this cause as plea of this hearing privilege, admitted John the Dis- City transferred be defendant, of Kansas Hajek, was authorized Texas trict Court defendant, dealer for plaintiff and that County, Texas. Dallas Court of District bought Hajek. this tractor from This at- torney deny did not court that the to the STEPHENSON, (dissenting). ad appearing in Progressive Farmer plead Plaintiff dissent. respectfully I was that of the Deere Company, John de- against a cause of proved stated, “I can it assume is.” Company Kansas fendant, Deere Deere trademark and are emblem John John the trial court judgment of City, and question. identified It agreed without was should privilege overruling its defendant’s; Magazine the Furrow was affirmed. that the Opera- Deere John Defendant, tion Manual was Company, Deere im- delivered John purchase. the time of this that its rea- Plaintiff testi- pliedly warranted tractor was dealings
fied in force, detail as to his with moving inducing purchaser John Company, telephone Deere including his enter into the transaction. correspondence persons calls and ad- In Santor v. A and M Karagheusian, employees mitted to be Com- Inc., 207 A.2d 16 A.L.R.3d N.J. pany. 670 (1965), this statement is made: “The manufacturer is the father agree with the I statement in do transaction. He makes the article and opinion an action majority that this was puts it in the channels of trade for sale rescind a contract. The “Purchase Or- public. questions No one jus- was der” defendants offered tice aof rule which holds him liable for usual sense of the not a contract defects arising out of the design or manu- executory. terms were word. None facture, or other causes prod- sale, while and the “Purchase This was a cash uct is under his comple- control. After nature of a re- Order” more tion the may pass article through defendant, event, series ceipt. hands, such as distributor and whole- party Company, was not saler, reaching before the dealer at Order”, be con- “Purchase should point of ultimate intended sale. The defend- a contract. Plaintiff and strued as dealer simply way station, Hajek Imple- conduit ant, F. d/b/a *5 trip on its from named, manufacturer to con- only parties the ment were sumer. For these reasons in the recent agent for purport to act as Hajek did not past the courts many jurisdictions, the “Pur- Company signing an endeavor to justice achieve for the chase Order”. consumer,
ultimate
imposed
have
an im-
implied
plied
an
This is
warranty of reasonable fitness on
product,
person
and not
the
ranty as
of a
responsible
to fitness
for the existence
It is an action
an action
a contract.
origin
article and the
of the mar-
price
purchase
damages,
process.”
keting
first to recover
dam-
paid,
economic
and second
recover
case,
The
Ford
Motor
suffered,
tractor would
ages
because the
Grimes,
(Eastland,
tractor. same bearing the tractors the “1010” describing The comments found in Motors General Deere.” name of trade 714, Corp. “John Ewing, (Waco, v. 300 718 S.W.2d 1957, Tex.Civ.App., writ), appro- are no alleged Tenberg petition, original In his priate : Defendant that “The dis- of the record is that testi- “Our view is a manufacturer City Kansas tractors, mony fails show that the defendant tributor any dealings 30, manu- or transactions 1965 prior October time some plaintiff Hajek regards as sale of the Buick F. delivered factured may may Cer not have been a “motor is defined “dealer” term The regulating Act, sale vehicle” under Act, depending the Certificate of Title of Title tificate 19, upon 1436-1, vehicles, Article its use. § Article of motor V.A.P.C., “ *** pur 1436-1, V.A.P.C.; 6675a-2, any 2, person Article § as (b) (c), re §§ Y.A.C.S. chasing resale at vehicles motor question The to owners.” tail 46
car; plaintiff purchase made his from an privilege is at least proper party independent automobile It dealer. seems claim against defendant; the resident way to us that the dealer is in con- (c) no bona fide claim being against nected with defendant other than the resident defendant. 1 McDon- ald, position in a resell automobiles Texas Civil (1965 Rev.), Practice § 4.10.2, 434, buys p. from defendant.” and cases therein cited. dissent, p. 43, comments The Under 27, subdivisions 23 and Tenberg appellant fact that that labored under the did contend burden of establishing a “ ** * prima it did not manufacture this trac- facie cause against of action corporate non-resident Appellant tor had no burden to defendant. McDon- ald, supra, 4.30.2, 518, contention, way or the make one other. and cases therein § p. face, Thus, regular upon cited. whether or privilege, estab- lished a cause of placed proof upon against the burden either de- fendant tiff, 111 Tenberg. Holmes, importance; becomes of utmost Coalson v. for, 502, until brought he (1922), clearly the court within 240 896 himself Tex. S.W. one exceptions, said: he could not maintain venue in County against appellant. Lavaca challenged, proper under “With venue Superior Goodrich v. Oil Tex. county, plea, by as one sued without 237 S.W.2d plaintiff’s pleading, or shown As indicated previously, there nowas evi- allege proof, the burden not dence showing or tending to show the na- case is within one of prove ture of relationship, any, the contractual if on the exceptions rests to the statute appellant between or the extent plaintiff.” of his any, appellant. authority, to act McClendon, 130 See also: Meredith Revert, Cf. Ford Motor Co. v. 428 S.W.2d 1062, 1063, (Amarillo, Tex.Civ.App., ; Corp., 156 Tex. Reliance (1938) Ladner v. writ). however, shown, It was 1 Mc- (1956); 293 S.W.2d County, a resident sold Rev.), Donald, (1965 Practice Texas Civil in Lavaca Venue, 612; Tex.Jur.2d, p. 4.55(b), § § Thus, where suit brought. 204, pp. 53-56. supra, met (a), McDonald’s subsection *7 to subdivision 4 of the statute. Because 4, 23, upon Tenberg relied subdivisions of the contention the dissent that the of V.A.C.S., 1995, over- and 27 of Article “warranty” so-called quoted majori- in the appel- of the right facie prima come the ty opinion should not be- be considered domicile. county in of its the lant be sued nature,2 directly cause defensive in I turn it was incumbent 4, Under subdivision Tenberg claim which asserted the of by preponderance a show against Hajek. one de- (a) facts: evidence three venue county of fendant, Hajek, resides avoiding So the maneuver of tactical of plea suit; asserting the party (b) the whether the written instrument between of accept the rule hesitation without I a on cross-examination. Such is not hearing of “hearing” the in the law in sense of the word as is privilege clearly Compton Elliott, for determination the issue stated in v. liability. Stockyards venue, Nat. 232, 91, (1935). not 126 Tex. 88 S.W.2d 95 supra (95 Maples, Tenberg’s dealings at S.W.2d Bank v. 1304) ; “warranty”, part v. & Co. Farmers’ Gin Seed the constituted a of a 675, 234, single Brooks, making up, 81 S.W.2d 125 over-all transaction not, however, did, (1935). part sub- I do it his cause of action. It was a 677 testimony proposition that of his scribe to the case to establish bona a fide cause negatives against Hajek, the ex- of from a the instru- integral part cannot be of a cause of action ment was an istence thereof. simply because it was elicited considered
47
stability
rapidly changing
not “defen-
restore
in this
was or was
my dissenting
of the law.
nature,
sive” in
I meet
field
issue
the
brother vis-a-vis on the
of
counterpart
His
on the California Su
of
this record.
cause
action under
preme Court,
Traynor,
Chief
Here
encounter the renewed effort
I
Justice
opinions
far-reaching
for his
also known
import
“implied
into
law the
our
liability
in
products
in
the
field
ranty”
in
face of
record
fitness
liability
extension of
doctrine of strict
any war-
which denies the existence of
products, e.
Greenman v.
g.,
to non-food
ranty.
question
validity
base
I
Products, Inc.,
57,
Yuba
59 Cal.2d
Power
Grimes,
opinion
in
Motor
Ford
Co. v.
697,
897, 13
Cal.Rptr.
27
P.2d
A.L.R.3d
377
Tex.Civ.App.,
(Eastland,
V.A.C.S.; Brown v. Gulf RELIANCE AND ENGINEER- ELECTRIC COMPANY, Appellant, (1957); ING 306 S.W.2d & Lankford T. S. v. Eldridge Co. Harry (Tex.Sup., Inc., Sons, 371 S.W.2d CORPORATION, CARRIER-HOUSTON we appeal, interlocutory 1963). On Appellee. full without incomplete record have No. 15509. Under case. development of factual Appeals would that we circumstances, of Civil Texas. I think Court these attempting refrain advised be well (1st Dist.). Houston conflicting lines between to choose Sept. 18, 1969. Seely, re- exemplified Santor cases Rehearing Denied Oct. future, immediate spectively. Commercial the Uniform provisions 2.313-2.318, subject Code, *9 §§ im- increasing
ranties, ever become will Lia- Keeton, “Products
portance. See: Law
bility,” 23 S.W. Jrl. assigned need be reason If additional subject upon a writing abstaining from