dissenting.
Because the majority finds a controlling distinction in this case from Southwest Park Outpatient Surgery, Ltd. v. Chandler Leasing Division, 572 S.W.2d 53 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ), consisting of the trial court finding here that the lease disclaimer provisions were unconscionable, I respectfully dissent.
The majority asserts that the trial court could “reasonably” have decided:—
that Enloe, the vendor’s salesman, knowingly misrepresented the condition of the copying machine to Burns (notwithstanding the lessor’s express disclaimer in the lease of any warranty or representation of fitness whatever, the lease providing that the equipment is leased “as is”);
that Enloe “took advantage of Bums (a practicing lawyer) to a ‘grossly unfair degree’ ” (apparently suggesting that Enloe was gifted with clairvoyance by knowing in advance that the machine would not function as intended and notwithstanding Burns’s written acknowledgement of receipt of the machine “in good working condition”); and
that Tri-Continental authorized or ratified Enloe’s conduct (despite the lease’s express disclaimer denying the existence of any agency relationship between Tri-Conti-nental and the vendor or the vendor’s salesman).
Further, the majority asserts — without supporting authority — that the lease’s disclaimers, and the stipulation that the entire agreement of the parties is set forth in the lease, “cannot be given conclusive effect” because of the trial court’s unconscionability finding.
This finding, I think, contradicts this Court’s earlier decision in a similar equipment lease case, Southwest Park, supra, which upheld the enforceability of the lease. I fail to see any evidence or reason that the lease is “unconscionable,” merely because the lessor was not responsible for, nor was the enforceability of the lease dependent upon, the performance of the machine. Burns agreed that if the machine *609failed to operate properly, or if any warranty by Business Equipment, Inc., the vendor, was breached, all such claims would be against the vendor. To facilitate this, TriContinental agreed to assign to Bums all rights that it had, as the purchaser against the vendor, for breach of warranty or representation concerning the equipment. It was specifically provided by the lease that Business Equipment was not an agent of Tri-Continental, that any representations by Enloe were not binding on Tri-Continen-tal, that the lease contained all the agreements between the parties, and that “failure of the equipment properly to operate” would not relieve Bums of his obligations under the lease. Tri-Continental did not guarantee the operation of the copying machine and, to the contrary, expressly disclaimed such a guarantee. Consideration for the lease was not the copier, but the lessor’s purchase of the copier and the extension of credit to the lessee, all of which the lessor performed. The lease agreement was expressly made irrevocable, and Bums’s responsibilities under the lease were binding and enforceable even if the equipment malfunctioned. Bums was without recourse against Tri-Continental, but not as against Business Equipment as vendor. This hardly makes the lease “unconscionable.”
I would sustain Tri-Continental’s first twelve, and the fourteenth and fifteenth, points of error on the grounds that both the findings of the trial court and its judgment are not supported by legally sufficient evidence. See Fettig v. Fettig, 619 S.W.2d 262, 269 (Tex.Civ.App.—Tyler 1981, no writ); Trevino v. Munoz, 583 S.W.2d 840, 843 (Tex.Civ.App.—San Antonio 1979, no writ). It appears to me, however, that American Lease Plan v. Ben-Kro Corp., 508 S.W.2d 937 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.), effectively precludes Tri-Continental’s claimed right to accelerate unearned rentals for the balance of the equipment lease term.
I would reverse the judgment of the trial court and remand the cause for a new trial.