![]() I bought a set of Western Flyer sculptured grips for it, man I love the way those grips look! The bike originally had the Rams Horn handlebars, but some rocket scientist cut them off in the top bends and put some goofy BMX grips on it pointing almost straight down. Apparently the front wheel was gone or damaged because he changed that as well. The PO got it with a 5 speed wheel, shifter and caliper brakes but he didn't like 5 speed bikes so he sold off all those parts and put a Shimano coaster brake wheel on it. When I got it the bike had been parted out and all that was left of the original bike was the frame, gooseneck, crank assembly and seat post. We conclude that the district court correctly applied the governing statute, found the limitation unconscionable under the facts of this case, and awarded monetary damages to Rubber Tech.I thought I would post a thread on my AMF Built Westpoint Flying Wedge project bike. The statute further provides that consequential damages may be limited or excluded unless such limitation or exclusion is unconscionable. TENNESSEE CODE ANN., ยง 47-2-719 provides that an agreement may limit a seller's recovery unless circumstances cause such limited remedy to fail of its essential purpose. Under these circumstances, the district court found, any exclusion of consequential damages would be "unconscionable." The court specifically found that Rubber Tech was the victim of unfair surprise in purchasing an untested machine that was represented as having capabilities that were actually unproven and evidently unobtainable. Amplan's unsuccessful efforts to repair the machine within a reasonable time created a backlog of unfilled orders for Rubber Tech and the prospect of the loss of business. In other words, after weeks of attempting to cure the problem by replacing and repairing parts, the purchaser still did not have an operable machine. With respect to the second argument, the district court found that the limitation of remedies originally agreed to by the parties was not binding on Rubber Tech because it failed of its essential purpose. This argument by Amplan, stripped of its verbiage, is actually nothing more than a contention that the district court's findings of fact are clearly erroneous. The evidence of its nonoperability was overwhelming. Because Amplan's technical experts could not themselves discover the precise cause of the failure of the machine to operate properly, it is clear that Rubber Tech had no burden of producing such pinpointed evidence. It is clear that the district court required Rubber Tech to establish more than the mere fact that the machine did not conform to Amplan's representations or to Rubber Tech's needs. ![]() ![]() ![]() These facts led to the "inescapable conclusion" that the Flying Wedge never worked properly and that the defendant was unable to identify and remedy the problems so it would operate properly and make commercially acceptable urethane products. The district court noted that the machine delivered to Rubber Tech was the first double action, push-pull machine Amplan had ever produced or sold, none had been produced or sold since, and Amplan never attempted to operate the machine or make a ratio check prior to shipping. The record and the district court's memorandum opinion totally refute this argument. In oral argument counsel for Amplan asserted that the district court treated this as a strict liability case, requiring the plaintiff to prove no more than the fact that the double action, push-pull Flying Wedge did not work. ![]()
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