Myfirm represents Kids’ Favorite Candy Company, Inc.
, a manufacturing corporationthat produces traditional candies for retail stores in the greater Houston area.On July 11, 2017, my client entered into a consumer relationship with yourcompany via Purchase and Installment agreement. This contract involved the saleand installation of a motor deemed suitable for use with a used packagingmachine my client owned. Less than 90 days after installation of the motor,KFCC discovered that the motor was defective. It’s use caused irreparabledamage to the candy packaging machine which resulted in over $20,000 of damagesin equipment and lost business. I am requesting restitution on behalf of myclient in the amount of $20,000. This amount is for replacement of the damaged PackagingMachine that malfunctioned due to the defective motor sold by your company.
Detailedbelow are the facts and applicable law as it applies to this dispute. In theinstant case, Empire Machine Parts stands in breach of express warranty andimplied warranty of merchantability with KFCC. My client is willing to settle, ifyou agree to pay the restitution fee by March 1, 2018.
Failure to do so willresult in further legal action and additional financial costs to your corporation.This letter is provided pursuant to Tex. Civ. Prac. & Rem.
Code Ann. §38.002(2). Under Article 5 of the Purchase andInstallment contract, your corporation agreed to honor the following representationsand warranties: 5.1.1 Defects. As of the time of delivery of the Motor toCandy Company at the Facility, the Motor has no defects.5.
1.2 Compatibility. The Motor is compatible for use with thePackaging Machine. Mr. Carsworth,a representative of KFCC, reviewed and attested the contract with Susan Giles,a sales representative in the Houston office of Empire Machine Parts. Prior to purchasing the used candy packaging machine,KFCC had the product inspected by Solid Inspections, Inc.
to ensure itsfunctionality. The pre-purchase report confirmed that the used packagingmachine was in great working condition and would be suitable for use once a compatiblemotor was installed. In early August 2017, EmpireMachine Parts delivered and installed the motor at KFCC’s facility. Mr.
Carsworth’s employees experienced no problems with the packaging machine untillate September 2017 when it began vibrating significantly during use. At thattime, my client reached out to your corporation for assistance, and an EmpireMachine Parts inspector claimed to not find any defect with the motor. Althoughthe inspector failed to identify a problem, the packaging machine stoppedfunctioning on September 22, 2017 and was deemed irreparable. KFCC hired Mechanical Inspectors ofTexas, LLC on September 28 to further investigate the functionality of the motorand packaging equipment. The mechanical reportindicates that although the motor appeared to have been properly installed byyour employee, the cause of the damage was in fact the motor itself, and notany other component of the packaging machine.
KFCC purchaseda new machine for $21,157 to carry on its candy business at current demandlevels and is not requesting additional payment for this inconvenience.Given these findings, EmpireMachine Parts is liable for the for the cost of the broken packaging machine. Mr.
Carsworth attempted to resolve this dispute with your company in October 2017by contacting Andrew Kwok, an Empire Machine Parts company representative. Mr.Kwok has been uncooperative with the demands of my client and KFCChas been compelled to retain the services of this firm to seek remedy for thedamages it has suffered. KFCCpossesses evidence to prove the essential elements of both breach of expresswarranty and implied warranty of merchantability. The Contract provides evidence thatEmpire Machine Parts affirmed the compatibility of the motor with the packagingmachine under Article 5. My client relied on these statements to purchase themotor, and the motor failed to comply with descriptions made in §5.1.1 and§5.
1.2 of the Contract. KFCC also suffered damages amounting to the loss of theused packaging machine. Empire Machine Part’s breached affirmations in theaforementioned sections are the proximate cause of injury as detailed in theinspection report from The Mechanical Inspectors of Texas, LLC.
These elements are sufficient to prove that Empire Machine Part’sbreached express warranty of the motor. EmpireMachine Parts also breached the implied warranty of merchantability on KFCC’spurchase of the motor. The inspection report from September 28 providesevidence that the motor wasunfit for use with the packaging machine because it lacked something necessaryfor adequacy and compatibility with the device.
Accordingly,the motor does not provide reliable, functional support for the candy packagingmachine as promised in §5.1.2 of the contract. The motor had defects andnon-conformities to warranty that rendered the candy packaging machine inoperable.
Because of the defects that rendered the motor incompatible, the candy packingmachine was damaged beyond repair. This indicates that the motor is not fit forits ordinary purpose as promised in the contract. Asa direct result of your misrepresentations and warranties, my client requests that you honor your obligations under Texas consumer protection laws. Texas Business & Commerce Code §2.714 and § 2.715 protects consumers from deceptive sales by allowing them torecover incidental and consequential damages for breach of warranty in regardto accepted goods. As of the date of this writing, thetotal damages suffered thus far by KFCC as a direct consequence of your misrepresentationsand warranties is $20,000.00, itemized as follows: 1.
Cost of used Packaging Machine$20,000.00 Demand is hereby made upon you toimmediately pay the amount of damages sustained, $20,000.00, to KFCC throughthis office immediately. Unless we receive the full amount, $20,500.
00 on orbefore March 1, 2018,this firm has been instructed to file and prosecute a lawsuit against you tocollect all damages caused by the above-described wrongful representations andwarranties. In connection with such litigation, we have been directed to pursueall proper legal remedies and to seek all available relief including, but notlimited to, KFCC’s attorney’sfees (recoverable under Texas Civil Practice and Remedies Code section38.001(8)),the cost of the September 28 inspection (arguably recoverable asincidental damages under Texas Business and Commerce Code section 2.715(a)),and the profit KFCC lost on a few customer accounts before the replacementmachine arrived (arguably recoverable as consequential damages under section2.
715(b)(1)).Your immediate response to thisserious matter will be appreciated.