Allis-Chalmers Mfg. Co. v. Coplin

• Decision Date: 30 September 1969
• Docket Number: No. 7961,ALLIS-CHALMERS,7961
• Citation: 445 S.W.2d 627
• Parties: MFG. CO. et al., Appellants, v. John COPLIN and James M. Coplin, Appellees. . Texarkana
• Court: Texas Court of Appeals

Page 627

445 S.W.2d 627

ALLIS-CHALMERS MFG. CO. et al., Appellants, v. John COPLIN and James M. Coplin, Appellees.

No. 7961.

Court of Civil Appeals of Texas Texarkana.

Sept. 30, 1969.

Kenneth C. Stephenson, Biggers, Baker, Lloyd & Carver, Dallas, for appellants.

H. B. Harrison, Fisher, McLaughlin & Harrison, Paris, for appellees.

CHADICK, Chief Justice.

H. C. Young, an Allis-Chalmers Manufacturing Company contract dealer, doing business as Young's Tractor and Equipment, at Cooper, Delta County, Texas, sold John Coplin and his son, James M. Coplin, a C--2 combine manufactured and owned at the time of sale, according to Young's testimony, by Allis-Chalmers Manufacturing Company, a Delaware corporation, which had its principal office in Dallas County. On the day Coplin took delivery of the combine, and while the machine was being moved some miles distant to the elder Coplin's home, the combine's brakes locked and rendered it unusable. Young admits there was a defect in the machine at the time it was sold, and the Coplins tendered testimony that repair of the defect was never successfully effected, and that the machine was not fit to satisfactorily perform the harvest work it was designed for and sold to do.

The implication of the trial court order is that the trial court decided venue for the trial of Coplins' suit against Young and Allis-Chalmers Manufacturing Company was Delta County, upon the proposition that a foreign corporation within the State of Texas 'may be sued * * * in any county in which such company may have an agency or representative'. Tex.Rev.Civ.Stat.Ann. art. 1995, Subdiv. 27 (1964). Allis-Chalmers Manufacturing Company grounds its appeal on the absence of proof in the trial court that it had an agent in Delta County at the time of suit, or at the time of the hearing on the plea of privilege. This single issue and subsidiary questions will be discussed; other questions briefed become immaterial after decision on this.

The contract between Allis-Chalmers Manufacturing Company and H. C . Young was introduced into evidence and is incorporated in the statement of fact. In the agreement, Allis-Chalmers Manufacturing Company is called the 'Company' and H. C. Young is designated 'Dealer'. The twelve page printed instrument is much too lengthy to be copied here. It is divided into numbered sections, and, together with other writings referred to therein, purports to be the entire contract between the parties at the time of execution in 1965. By its terms the Company grants the Dealer the non-exclusive right to sell machinery (§ 1) in Cooper and vicinity (§ 3) and agrees to accept in settlement of the dealer's account: notes, conditional sales contracts and chattel mortgages when the down payment of a customer and the evidence of indebtedness are in compliance with the Company's retail credit plan (§ 7); the Company specifically reserves title and right of possession to all machinery shipped the Dealer until it is paid for (§ 14). Section 22 in full, and Section 24 in the part material to this discussion are as follows:

'22. AGENCY. The Dealer is not in any sense an agent of the Company and has no authority to bind the Company in any manner whatsoever or to make any collections for the Company.

'24. WARRANTY. The Dealer agrees to sell machinery under this Agreement only upon the Retail Purchase Order blanks furnished by the Company, which contain the specific and only warranty of the Company as follows:

'ALLIS-CHALMERS MANUFACTURING COMPANY warrants that it will * * *, etc.

'This warranty to repair applies only to new and unused machinery, which * * *', etc.

'THIS WARRANTY TO REPAIR IS THE ONLY WARRANTY EITHER EXPRESS, IMPLIED, OR STATUTORY, * * *', etc.

'No representative of the Company has authority to change this warranty or * * *', etc.

'The Dealer agrees to furnish Company immediately upon resale of any machinery to retail users, * * *', etc.

'No warranty, statutory, implied or otherwise, shall apply to used machinery.'

On analysis it is quite clear that despite the disclaimer of § 22, § 24 contemplates, implies and constitutes an agreement that Young as Dealer is authorized to...