John Deere Co. of Kansas City v. Tenberg

• Decision Date: 04 September 1969
• Docket Number: No. 7071,7071
• Citation: 445 S.W.2d 40
• Parties: JOHN DEERE COMPANY OF KANSAS CITY, Appellant, v. Kenneth TENBERG, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 40

445 S.W.2d 40

JOHN DEERE COMPANY OF KANSAS CITY, Appellant, v. Kenneth TENBERG, Appellee.

No. 7071.

Court of Civil Appeals of Texas Beaumont.

Sept. 4, 1969.

James E. Coleman, Jr., Dallas, for appellant.

James E. Cross, Yoakum, Houston Munson, Gonzales, for appellee.

PARKER, Justice.

Kenneth Tenberg, a resident of Lavaca County, Texas, sued John F. Hajek, a resident of Lavaca County, Texas, and John Deere Company of Kansas City, a Missouri corporation with an office and place of business at Dallas, Dallas County, Texas, jointly and severally, to recover the purchase price of a tractor sold to plaintiff in Lavaca County, Texas by the defendant, Hajek, tendering the tractor to Hajek. In the alternative, plaintiff sought damages for consequential economic loss by reason of having to secure other equipment to do his farm work when the tractor purchased was being repaired. The District Court of Lavaca County, Texas overruled the plea of privilege of John Deere Company of Kansas City, and hence this appeal.

Appellant has two points of error:

'POINT ONE

'The trial court erred in overruling appellant's plea of privilege since appellee failed to establish a cause of action against the resident defendant, Hajek, as required by subdivision 4 of art. 1995, V.A.T.S.

'POINT TWO

'The trial court erred in overruling appellant's plea of privilege in that appellee failed to prove that a cause of action, or a part thereof, arose or accrued in Lavaca County, Texas, as required by subdivisions 27 and 23 of art. 1995, V.A.T.S.'

Tenberg sought to rescind the purchase of the tractor on the basis that by selling and delivering said tractor, the defendants then and there warranted the said John Deere tractor to be new, in perfect condition, and in all respects fit and proper for use in farm operations, and that he purchased said tractor and equipment, relying on such representations of warranty, for $5,390.00, including the value of a John Deere tractor traded in. In the alternative, Tenberg sought to recover consequential damages mentioned above.

On October 30, 1965 (before the Uniform Commercial Code became effective), Tenberg purchased from Hajek Implement Company a 1010 John Deere diesel tractor. Prior thereto, Tenberg had read advertisements in various publications of the fitness of John Deere tractors to perform certain farm work. He testified he relied upon these representations and that the tractor did not live up to the advertisements. All of such representations by advertising were read by Tenberg long prior to the purchase of the tractor. This testimony as to advertising is not in accord with his petition. At the time of the purchase and sale, Tenberg and Hajek, the only two parties involved in the sale, signed a written agreement, certain portions of that agreement are as follows:

'I (we) (Tenberg) understand and agree that in selling the goods covered by this order you (Hajek) are not acting as agent of the manufacturer or of any wholesale distributor of the manufacturer (John Deere) but that you are an independent dealer and have sold the goods for your own account as such.

'Seller (Hajek) warrants each new John Deere machine to be free from defects in materials or workmanship. The obligation of Seller under this warranty is limited to replacing parts which prove defective with normal and proper use within the warranty period. The warranty period is: (1) For all John Deere machines, except John Deere Lawn and Garden Tractors and John Deere attachments therefor, 12 months from delivery to purchaser or 1500 hours of use, whichever occurs first, * * *

'It will be the responsibility of the purchaser (Tenberg) to deliver machine to Seller's service shop, or if this is not possible, to reimburse Seller for any travel or transportation expense involved in fulfilling this warranty.

'The above warranty is in lieu of all other warranties, statutory or otherwise, expressed or implied, all other representations to Purchaser, and all other obligations or liabilities with respect to such machines including implied warranties of merchantability and fitness, and Seller's obligation under all such warranties shall not exceed those set out above. No warranty or representation whatsoever, expressed or implied, has been made by the manufacturer or wholesale distributor of John Deere machines (John Deere) and relied on by Purchaser, and Seller has no authority to make any such warranty or representation on behalf of such manufacturer or wholesale distributor. In no event shall Seller be liable for incidental or consequential damages or injuries including loss of crops or inconvenience or loss in performing contracts.

'No assistance given to Purchaser by Seller or anyone acting with him in the repair or operation of the goods shall constitute a waiver on the part of Seller of the conditions of this Warranty and Agreement.'

The execution of the agreement by the parties thereto is not contested. There is nothing in this agreement that warrants or represents that the tractor is fit to do any particular work. Tenberg seeks to rescind a sale. The contract of sale is in writing . To rescind this contract in writing, the burden is on Tenberg to place it in evidence and prove that under its terms he is entitled to rescind. This he failed to do.

Tenberg testified there had never been a refusal on the part of Hajek to perform the terms of the agreement up until the time he filed this suit on October 26, 1967. There was no proof nor any attempt by appellee to prove that a specific part was defective and not replaced, that Hajek refused to replace a defective part, or the value of any alleged defective parts. He had no dealings with any agent or representative of John Deere Company prior to the date he purchased the tractor from Hajek. The latter was a dealer but not an agent of John Deere Company. The tractor was used over 1200 hours, was repaired many times, with parts replaced, including replacing the engine head. At one time the tractor was being repaired over a period of four months.

There is no proof that John Deere Company ever had or maintained an agency in Lavaca County, Texas.

In his controverting plea, Tenberg relied upon subdivisions 4, 23 and 27 of Article 1995, Revised Civil Statutes of the State of Texas .

Tenberg alleged and proved that he and Hajek each were residents of Lavaca County. Tenberg had no cause of action against Hajek, for he purchased the tractor pursuant to a written contract containing limited warranties providing exclusive remedies available to Tenberg . Tenberg cannot rely upon breach of implied warranties because implied warranties were excluded in the written instrument signed and accepted by Tenberg. Eastern Seed Co. v . Pyle, 191 S.W.2d 708 (San Antonio. Tex.Civ.App., 1945); Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562, 563 (1946); Asgrow Seed Co. v. Gulick, 420 S.W.2d 438 (San Antonio, Tex.Civ.App., 1967, error ref. n.r.e.).

In this case, the seller and the purchaser agreed upon limitations to warranties. In a case of this type, the seller is not bound beyond the terms of his warranty fixed by the written agreement defining the rights and liabilities of Tenberg and Hajek. Logan v. Holland, 25 Tex. 398 (1860); E. F. Elmberg Co. v. Dunlap Hardware Co ., 234 S.W. 700, 704 (Amarillo, Tex.Civ.App., 1921), aff'd 267 S.W. 258 (Tex.Com.App., 1924).

The consequential damages sought by Tenberg are excluded by the language of the contract wherein it is stated: 'In no event shall Seller be liable for incidental or consequential damages or injuries including loss of crops or inconvenience or loss in performing contracts.'

Likewise, the provisions of the contract applied to this record show no cause of action by Tenberg against Hajek or John Deere Company.

Each of appellant's points of error is sustained. The judgment and order of the District Court of Lavaca County, Texas, overruling the plea of privilege of John Deere Company of Kansas City, is reversed and it is here adjudged and ordered that this cause as to John Deere Company of Kansas City be transferred by the District Court of Lavaca County, Texas to the District Court of Dallas County, Texas.

STEPHENSON, Justice (dissenting).

I respectfully dissent. Plaintiff plead and proved a cause of action against defendant, John Deere Company of Kansas City, and the judgment of the trial court overruling its plea of privilege should be affirmed.

Defendant, John Deere Company, impliedly warranted that its tractor was reasonably fit for the purpose for which it was sold.

Plaintiff's pleadings, in substance, were: That by selling their tractor, defendants warranted it to be fit and proper for farm operation. That a series of defects occurred and recurred. That their tractor had never been in condition to perform the ordinary tasks of a farm tractor. That it is totally unfit to serve as a farm tractor. That plaintiff should recover as damages, the purchase price paid for the tractor and for $1,154.50 plaintiff paid others to do tractor work on his farm because this tractor did not perform.

In his controverting affidavit plaintiff alleged: That defendant, John Deere Company, had published and distributed brochures and advertisements which he read, and radio, television and newspaper advertisements, which all represented the tractor he bought had sufficient power to do farm plowing and other farm work. That plaintiff relied upon these representations that he had heard and read before he purchased this tractor.

On a hearing of their plea of privilege, plaintiff offered evidence, which was not contradicted, to prove all of the above allegations. This was all that he was required to do. John Deere Company does not contend, either in its pleadings in the trial court or its brief in this court, that it did not manufacture this tractor which plaintiff purchased. The attorney representing John Deere Company, during the course of the hearing of...