(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 this plea of privilege, admitted the defendant, Hajek, was an authorized dealer for defendant, and that plaintiff bought this tractor from Hajek. This attorney did not deny to the court that the ad appearing in the Progressive Farmer was that of the John Deere Company, and stated, “I can only assume it is.” The John Deere trademark and emblem are identified without question. It was agreed the Furrow Magazine was defendant’s; and that the John Deere Company Operation Manual was delivered to plaintiff at the time of this purchase. Plaintiff testi*44fied in detail as to his dealings with John Deere Company, including his telephone calls and correspondence with persons admitted to be employees of John Deere Company.
I do not agree with the statement in the majority opinion that this was an action to rescind a contract. The “Purchase Order” defendants offered in evidence was not a contract in the usual sense of the word. None of the terms were executory. This was a cash sale, and the “Purchase Order” was more in the nature of a receipt. In any event, the defendant, John Deere Company, was not a party to the “Purchase Order”, if it should be construed as a contract. Plaintiff and defendant, John F. Hajek, d/b/a Hajek Implement Co., were the only parties named, and Hajek did not purport to act as agent for John Deere Company in signing the “Purchase Order”.
This is an action upon an implied warranty as to fitness of a product, and not an action on a contract. It is an action for damages, first to recover the purchase price paid, and second to recover economic damages suffered, because the tractor would not plow.
This court should not determine the question of liability in this venue action. The “Purchase Order”, may be a defense when this case is heard on its merits, but that is the time for the trial court to decide whether or not the “Purchase Order” is a valid defense, and whether or not a 19-year-old boy was bound by its terms.
I am convinced that it is good law for a plaintiff consumer to be able to recover directly from the manufacturer when a product is not reasonably fit for the purpose for which it was sold, because a plaintiff is realistically dealing with a maker who normally markets under trade name and advertises nationally. The manufacturer, rather than the retailer, controls the quality and fitness of the product, and through h'is advertising, is frequently the moving force, inducing the purchaser to enter into the transaction.
In Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670 (1965), this statement is made:
“The manufacturer is the father of the transaction. He makes the article and puts it in the channels of trade for sale to the public. No one questions the justice of a rule which holds him liable for defects arising out of the design or manufacture, or other causes while the product is under his control. After completion the article may pass through a series of hands, such as distributor and wholesaler, before reaching the dealer at the point of ultimate intended sale. The dealer is simply a way station, a conduit on its trip from manufacturer to consumer. For these reasons in the recent past the courts of many jurisdictions, in an endeavor to achieve justice for the ultimate consumer, have imposed an implied warranty of reasonable fitness on the person responsible for the existence of the article and the origin of the marketing process.”
The case, Ford Motor Company v. Grimes, 408 S.W.2d 313 (Eastland, Tex.Civ.App., 1966, error dism.), is in point. This is a venue suit, in which the cause of action is brought by the purchaser of a Ford automobile, against the manufacturer and the dealer. The trial court overruled Ford’s plea of privilege and the Court of Civil Appeals affirmed. It was held that plaintiff discharged his burden of proof under Subdivision 27, Article 1995, with this statement:
“We think that justice requires that the manufacturer be charged with an implied warranty in favor of the initial retail purchaser that the automobile was suitable for the purposes for which it was sold.”