Lankford v. Rogers Ford Sales

Decision Date08 March 1972
Docket NumberNo. 6235,6235
Parties10 UCC Rep.Serv. 777 Buford B. LANKFORD, Jr., Appellant, v. ROGERS FORD SALES and Ford Motor Company, Appellees.
CourtTexas Court of Appeals

Kerr, Fitz-Gerald & Kerr, Ted M. Kerr, Midland, for appellant.

Stubbeman, McRae, Sealy, Laughlin & Browder, Harrell Feldt, Legg, Saxe & Baskin, Midland, for appellees.

OPINION

RAMSEY, Chief Justice.

This is an appeal from a summary judgment. Buford B. Lankford, Jr ., Plaintiff-Appellant, filed suit for damages against Rogers Ford Sales and Ford Motor Company, Defendants-Appellees. The basis for damages was for breach of warranty of merchantability of an automobile. The trial Court granted the Defendants' Motions for Summary Judgment. We affirm.

This being an appeal from a summary judgment, it is incumbent upon this Court to view the evidence in the light most favorable to the Plaintiff to determine the existence of a genuine issue of material fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1967).

The Plaintiff assigns four points of error. The basis of all of the points relates to the existence of genuine issues of material fact relating to the failure of the warranty of its essential purposes whereby the Plaintiff would be entitled to recover on a warranty of fitness and merchantability.

The facts are essentially uncontroverted. The Plaintiff purchased a new 1967 Thunderbird automobile on January 18, 1968, from the Defendant, Rogers Ford Sales, an authorized Ford dealer. The automobile was manufactured by the Defendant, Ford Motor Company. At the time of the purchase, Plaintiff received a written new vehicle warranty. Soon after the purchase, many defects occurred, some of an exasperating nature (activating the safety flasher turned on the radio) and other defects rendering the vehicle unsuitable for use (power steering defect). The details of the defects are not questioned and the Plaintiff presented well documented proof of the occurrences and circumstances. On May 19, 1969, Plaintiff filed this suit. Defects were repaired by Rogers when the breakdown occurred and others were repaired by other dealers when breakdowns occurred out of town. In each instance, repairs were made to rectify the defects. The Plaintiff so testified, though at times it would take one to five attempts to make the repairs which would require returning the car to Rogers and leaving it for the repair work.

During approximately eighteen months, the car was in the shop for repairs some 45 days for about 50 different defects. Rogers' service personnel advised Plaintiff that this automobile developed more defects than would normally be expected in an automobile of this quality.

The gist of the controversy may be summarized in that Plaintiff alleges that the limited written warranty has failed in its essential purpose and therefore, the Plaintiff should then be entitled to rely on implied warranties of fitness and merchantability for relief. The Defendant Ford's contention is that the warranty furnished to Plaintiff was a limited written warranty whereby Ford was obligated to replace or repair any defective part without charge to the Plaintiff. That in so doing, Ford has performed in accordance with the warranty and should not be subjected to any claim in excess of that which it contractually undertook. Defendant Rogers, being the dealer and repair agency, asserts that the only warranty made on the vehicle was made by the manufacturer Ford and thus Rogers is not responsible for any warranty, but only for implementation of the warranty by repairs that have been performed. Plaintiff's cause of action is for damages and not for rescission.

The wording of the warranty is as follows:

'Basic Warranty

'Ford Motor Company warrants to the owner each part of this vehicle to be free under normal use and service from defects in material and workmanship for a period of 24 months from the date of original retail delivery or first use, or until it has been driven for 24,000 miles, whichever comes first. * * *

'All the warranties shall be fulfilled by the Selling Dealer (or if the owner is traveling or has become a resident of a different locality, by any authorized Ford or Lincoln-Mercury dealer) replacing with a genuine new Ford or Ford Authorized Reconditioned part, or repairing at his place of business, free of charge including related labor, any such defective part. * * *

'The warranties herein are expressly IN LIEU OF any other express or implied warranty, including any implied WARRANTY of MERCHANTABILITY or FITNESS, and of any other obligation on the part of the Company or the Selling Dealer.'

Plaintiff does not allege any fraud or misrepresentation either by Ford or Rogers in the selling of the automobile nor is there any allegation of negligence or failure or refusal to repair when defects occurred.

Texas Courts have consistently held that where there is an express written warranty, the seller will not be bound beyond the terms of the warranty. John Deere Company of Kansas City v. Tenberg, 445 S.W .2d 40 (Tex.Civ.App. n.w.h.); Ford Motor Company et al. v. Puskar,...

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  • Clark v. International Harvester Co.
    • United States
    • Idaho Supreme Court
    • 30 juin 1978
    ...Co. v. Castle, 402 S.W.2d 429 (Ky.1966); McCarty v. E. J. Korvette, Inc., 28 Md.App. 421, 347 A.2d 253 (1975); Lankford v. Rogers Ford Sales, 478 S.W.2d 248 (Tex.Civ.App.1972); J. White & R. Summers, Handbook on the Law Under the Uniform Commercial Code, § 12-9 (1972). However, some courts ......
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    ...freedom by manufacturers. See Adams v. J. I. Case Co., 125 Ill.App.2d 388, 261 N.E.2d 1 (App.Ct.1970); Lankford v. Rogers Ford Sales, 478 S.W.2d 248 (Ct.Civ.App.Tex.1972); Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513 (1978); cf. Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.......
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    ...apply the reasonable number of attempts requirement when the plaintiff holds a limited express warranty. In Lankford v. Rogers Ford Sales, 478 S.W.2d 248, 249 (Tex. Civ. App. 1972), the plaintiff argued that the limited warranty "failed in its essential purpose" when the vehicle had been in......
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    ...apply the reasonable number of attempts requirement when the plaintiff holds a limited express warranty. In Lankford v. Rogers Ford Sales, 478 S.W.2d 248, 249 (Tex.Civ.App.1972), the plaintiff argued that the limited warranty "failed in its essential purpose" when the vehicle had been in th......
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