dissenting.
I respectfully dissent. The late Judge Warren Cunningham, then one of the most able trial judges of this State, presided at the trial of this cause; he passed upon Upjohn’s motion for judgment non obstante veredicto after he had reviewed a transcribed copy of the evidence adduced upon the trial. He concluded, and I concur, that the evidence of loss of future profits is so weak “as to do no more than create a mere surmise or suspicion of its existence, [and] such evidence is in legal effect no evidence, and it will not support a verdict or judgment.” Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970).
There is, perhaps, to use the language of Chief Justice Calvert in Seideneck, supra, “a glimmer of evidence” to support plaintiff’s lost profit theory; but it is legally insufficient under the famous decision of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063 (1898). In considering the appeal of plaintiff, we are confronted with a “no evidence” point. The review is under the standards set out in Gulf, Colorado & Santa Fe Railway Company v. Been, 158 Tex. 466, 312 S.W.2d 933, 937 (1958), which requires that there be more than a mere scintilla of evidence to support a verdict.
The rule governing plaintiff’s right to recover is set out in Universal Commodities, Inc. v. Weed, 449 S.W.2d 106, 113 (Tex.Civ. App. — Dallas 1969, writ ref’d n.r.e.), where the leading authorities are discussed:
“The court properly denied appellants any recovery for the loss of future profits. Universal and its three corporate stockholders and officers were attempt*128ing to start a new business. The general rule is that the loss of anticipated profits from a new business is too speculative and conjectural to support a recovery of damages. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); Barbier v. Barry, 345 S.W.2d 557, 563 (Tex.Civ.App., Dallas 1961, no writ). It is true that lost profits will not be denied merely because a business is new if factual data is available to furnish a sound basis for computation of probable losses. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 348 (1955), which involved a new business actually established and operated for a while. But in the case now before us the undisputed evidence shows that there was no basis for the recovery of damages for loss of anticipated profits.”
See also Davis v. Small Business Inv. Co. of Houston, 535 S.W.2d 740, 743 (Tex.Civ.App. —Texarkana 1976, writ ref’d n.r.e.); General Supply & Equipment Co., Inc. v. Phillips, 490 S.W.2d 913, 921 (Tex.Civ.App. — Tyler 1972, writ ref’d n.r.e.).
Plaintiff purchased $1,600 in material from Upjohn and used it in manufacturing a sufficient number of panels to construct three portable buildings which he sold to a stockholder who, too, was entering into a new business. Although the stockholder, Vacca, “guaranteed” that his company would purchase $150,000 in panels from plaintiff each year, Vacca’s company had gross sales in that year of less than $70,000. One building company, headed by Kelly Reynolds was unable to procure financing and no sales were ever made. The record is most unsatisfactory with regard to the profit, if any, which Harper made on the sale of the portable buildings to Vacca and the tennis court panels to Porta-Courts. We have estimates, but no books or records, from Harper showing a profit from $1,500 to $5,000. Harper’s expert witness calculated a gross profit from such sales in the neighborhood of $5,000.
This is the classic case of a new business entering an untested field with a new product and founders upon a combination of bad luck, under capitalization, and lack of technical know-how. In this instance, its failure may have been aided by the defects in Upjohn’s product; but the stubborn fact remains that there is no competent evidence, under the standards laid down in the line of cases discussed in Universal Commodities, Inc. v. Weed, supra, § 449 S.W.2d at 113, to support the award of lost future profits. Such profits were too speculative, legally, to entitle Harper to a judgment.
There is yet another reason for an af-firmance of the trial court’s judgment — the limitation of damages contained in the technical information sheet provided to plaintiff at the time of the sale.
Lee Harper testified that the information sheet was used to supply technical data on how to use the material. He testified: “This is technical information on the 426 system,” and agreed, when questioned, that it “contains the information that you followed when you made your foam . . ?” It is fair to say that Harper could not have used the foam without having the information sheet, or similar information available to him.
The limitation of damages was clearly and conspicuously shown on the technical information sheet and read in part as follows:
“Accordingly, Buyer assumes all risks whatsoever as to the use of these materials and Buyer’s exclusive remedy as to any breach of warranty or negligence claim shall be limited to the purchase price of the materials.”1
Since Harper could not have used the material which he purchased without using the technical information sheet accompanying the materials, his use of the sheet constituted an “expression of acceptance” as that term is used in the Texas Uniform Commercial Code [hereinafter Texas U.C. *129C.], Tex.Bus. & Comm.Code Ann. § 2.207(a) (1962)2
The technical information sheet accompanied the goods and was brought to the attention of Harper contemporaneously with the consummation of the bargain. He had ample opportunity to object or indicate his nonacceptance of the limitation of liability but did not do so. Moreover, the requirements of § 2.719 of the Texas U.C.C3 were clearly applicable to this commercial transaction involving the purchase and sale of material where only consequential damages were sought. Before Harper began using the foam, he was on notice that he could not recover consequential damages because of product failure. See generally Nelson v. Union Equity Co-op. Exchange, 548 S.W.2d 352, 356 (Tex.1977).
In our case, Harper urges that the limitation upon the warranty is unconscionable; but the statute refutes that contention. I conclude, just as the El Paso Court did in Lankford v. Rogers Ford Sales, 478 S.W.2d 248, 251 (Tex.Civ.App. — El Paso 1972, writ ref’d n.r.e.), that the limited warranty precludes the recovery of consequential damages by Harper.
I decline to join in an opinion by which a quarter of a million dollars is awarded to a businessman who has not shown any right to be so enriched at the expense of another business. I would affirm the judgment of the trial court.
. The jury found that Harper purchased materials from Upjohn costing $1,600 and no appeal has been taken from the judgment awarding that sum to Harper.
. All references herein are to the Texas U.C.C., as codified in Vernon’s Texas Business & Commerce Code Annotated.
. § 2.719(c): “Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages or injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”