Foremost Mobile Homes Mfg. Corp. v. Steele

• Decision Date: 22 February 1974
• Docket Number: No. 17483,17483
• Citation: 506 S.W.2d 646,14 UCCRep.Serv. 657
• Parties: 14 UCC Rep.Serv. 657 FOREMOST MOBILE HOMES MANUFACTURING CORPORATION, Appellant, v. Louise STEELE, Appellee.
• Court: Texas Court of Appeals

Page 646

506 S.W.2d 646

14 UCC Rep.Serv. 657

FOREMOST MOBILE HOMES MANUFACTURING CORPORATION, Appellant, v. Louise STEELE, Appellee.

No. 17483.

Court of Civil Appeals of Texas Fort Worth.

Feb. 22, 1974.

Kilgore & Kilgore and Robert M. Thornton, Dallas, for appellant.

Penfold & Arledge and David A. Arledge and Craig Penfold, Dallas, for appellee.

OPINION

MASSEY, Chief Justice.

Plaintiff Louise Steele purchased a new mobile home from dealer Whittle, who sold such character of merchandise of various manufacturing companies including that of the defendant Foremost Mobile Homes Manufacturing Corporation. Many defects in the mobile home so purchased became apparent within a very few weeks, by reason of which she considered its worth to be several thousands of dollars less than the price she had paid for it. The price paid was deemed synonymous with the amount of its market value had it been delivered to her free of the defects. The mobile home was never considered to be useless for the purpose for which it was purchased, but rather was considered to be less useful by reason of the defects.

Plaintiff sued the defendant manufacturer. Trial was to a jury and upon the verdict returned judgment was rendered for plaintiff under general principles of law (see 51 Tex.Jur.2d, p. 143, 'Sales') . See 353 '(General measure of damages) Under Uniform Commercial Code', i.e. for the difference in value of the trailer between that condition in which its delivery was expected and that condition in which it was accepted. No part of the judgment was predicated upon any theory that dealer Whittle's actions became those of the manufacturer under the doctrine of Respondeat superior. The defendant appealed.

Reversed.

At the outset we notice that the case was not tried to judgment on any theory of express warranty. As in instances of most new purchases of valuable personal property there was a written warranty by the manufacturer to the initial retail purchaser, to pass by the hand of the intermediate dealer who accomplished the retail sale.

The written express warranty purported to be in lieu of all other warranties, express or implied. Prescribed thereby was the manufacturer's limitation of liability to 'making good, at our factory, any part or parts manufactured by Foremost M. H. Mfg. Corp., upon its or their return to the factory in Denton, Texas, with transportation charges prepaid . . . which upon our examination shall disclose, to our satisfaction, to be thus defective.' Under present Texas law plaintiff lost no right by reason of her acceptance of the written warranty. In this case we can and do treat it as a nullity.

Under general principles of law in order to maintain suit and recover judgment against a defendant on the theory of breach of implied warranty of personalty sold by contract there must have been privity of contract between plaintiff and defendant. Presumed, of course, is that in no sense does the action sound in tort.

1 Williston on Sales, Revised Edition, p. 512, 'Conditions and Warranties', Sec. 200, 'Other American authorities requiring intent on the part of the seller', reads in part as follows: 'Where a warranty is based on a contract and not on an affirmation or representation, there must be a manifestation of mutual assent to form the contract (not necessarily mental assent or actual intent), and it then becomes a question of interpretation whether the contract contains a warranty. The broad statements that intent is a necessary element of warranty are doubtless due to the unfortunate assumption that all warranties are exclusively contractual. . . .' In the earlier paragraph 195, 'Early law of warranty', the early cases were conceived as those in which action taken would sound in tort rather than contract. Of this notice was taken by the Supreme Court in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup ., 1967), a products liability case. McKisson was a case where the liability of the manufacturer was held existent despite the fact that there was no privity between plaintiff and manufacturer and, of course, was one which could be properly said to sound in tort. Development of the law imposing liability on the manufacturer in products liability cases finds its inspiration in antecedent tort law and not contract law.

However the plaintiff argues that the rule of liability despite the absence of privity of contract should be similarly applied to the instant case. Necessarily does plaintiff's ability to sustain her judgment turn upon an ability to persuade this court to so hold. She cites as authority for the contention certain language from Ford Motor Company v. Lemieux Lumber Company, 418 S.W.2d 909 (Beaumont Tex.Civ.App., 1967, no writ history). In that case we find that what was involved was a...