## Facts

- Tex Enterprises, Inc., a Washington manufacturer of a liquid deck-coating product, purchased metal containers through a distributor, J.F. Shelton Company, which sourced certain containers from Brockway Standard, Inc., a container manufacturer.
- At a 1997 meeting arranged through Shelton, Brockway’s representative allegedly told Tex’s president that Brockway’s three- and five-gallon containers were “just as good” as a competitor’s and equally effective for storing and shipping Tex’s product.
- Tex ordered thousands of Brockway three- and five-gallon containers via Shelton and shipped more than 22,000 gallons of deck coating in them.
- Tex received customer complaints that the coating congealed in the containers and attributed the problem to containers that were allegedly not airtight, allowing moisture intrusion.
- Tex sued Brockway asserting breach of express warranty, implied warranty of merchantability, and implied warranty of fitness for a particular purpose, based on Brockway’s alleged direct representations; Tex also sought to add an equitable estoppel theory.
- Brockway relied on warranty disclaimers, remedy limitations, and a Georgia choice-of-law clause printed on invoices it sent to Shelton, arguing those terms controlled and defeated Tex’s claims.

## Issues

1. Whether a remote manufacturer’s direct representations to an end-user purchaser can create express or implied warranties running to that purchaser independent of warranty disclaimers and other terms contained in manufacturer–distributor invoices.
2. Whether the purchaser’s claims against the manufacturer are limited to third-party-beneficiary rights under the manufacturer–distributor sales contract, including its disclaimer, limitation, and choice-of-law provisions.
3. Whether dismissal at the pleading stage was proper where the purchaser alleged pre-sale manufacturer affirmations and reliance creating warranties under Washington’s U.C.C. provisions.

## Decision

- The Washington Supreme Court affirmed the Court of Appeals’ reversal of dismissal.
- The court held that a manufacturer’s direct representations to a purchaser may create express and implied warranties running to the purchaser independent of any contract between the manufacturer and distributor.
- The court ruled that disclaimers and a choice-of-law clause contained only in the manufacturer’s invoices to the distributor did not automatically bar the purchaser’s warranty claims against the manufacturer.
- The case was permitted to proceed on the purchaser’s warranty theories rather than being terminated based solely on upstream invoice terms.

## Legal Principles

- Express warranties may arise from a seller’s affirmations of fact or promises relating to goods that become part of the basis of the bargain, including manufacturer statements made directly to the buyer before purchase.
- Implied warranties of merchantability and fitness for a particular purpose may be asserted against a manufacturer when the manufacturer directly participates in inducing the buyer’s purchase through representations about suitability and the buyer relies on them.
- A downstream purchaser’s warranty claims based on a manufacturer’s direct representations are not necessarily confined to third-party-beneficiary rights under a separate manufacturer–distributor contract.
- Boilerplate warranty disclaimers and related terms in manufacturer–distributor invoices do not, by themselves, defeat warranty claims arising from independent manufacturer-to-buyer representations.

## Conclusion

The court held that Tex’s allegations of direct pre-sale assurances by Brockway could support express and implied warranties running to Tex independently of disclaimers and other terms in Brockway’s invoices to the distributor, so dismissal based solely on those invoice terms was improper and the warranty claims could proceed.


Tex Enters., Inc. v. Brockway Standard, Inc., 149 Wash. 2d 204, 66 P.3d 625 (Wash. 2003)