Opinion
No. 11814.
April 29, 1981.
APPEAL FROM 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, DIVISION "A", STATE OF LOUISIANA, HONORABLE LOUIS G. DESONIER, JR., J.
Harry R. Cabral, Jr., John P. Campbell, III, Metairie, for third party plaintiffs-appellants.
Robert H. Wood, Jr., Bernard, Cassisa, Babst Saporito, Metairie, for third party defendant-appellee.
Before REDMANN and KLIEBERT and JULIAN E. BAILES, J. Pro Tem.
Defendants, obliged by their "lease" with plaintiffs to pay the full price of an allegedly defective copying machine manufactured by third-party defendant Dennison Manufacturing Company, now appeal from judgment maintaining Dennison's exception of no right of action to their demand in redhibition. The exception theorizes that as "lessees" defendants do not have the right of a purchaser to avoid a sale for redhibitory defects, especially because a lessee would not have the necessary power of an owner to return the defective thing to the seller. We reverse, theorizing that defendants are not mere lessees but either are the purchasers or have the authority from the purchaser (and seller) to act as such.
The record makes it clear that plaintiff "leasing corporation" (somehow connected with a bank), as part of a recently commonplace financing plan, bought the copier from dealer Copy-Rite, Inc. on May 4, 1976 not in order to do copying but in order to fulfill its commitment of April 29 to lease it to defendants for 60 months at a rental that would repay the leasing corporation the entire price plus 16% interest yearly. One provision of this "lease" is that the rental must be paid irrespective of the usability or even destruction of the "leased" thing, and that the "lessees" have no warranty from the "lessor." There is also a letter in the record by which the leasing corporation acknowledges a collateral agreement that the "lessees" can purchase the copier for 1% of its cost after paying the lease price. It could hardly be plainer that the "leasing corporation" is essentially a lender of money who finds the customary security device of chattel mortgage unsatisfactory and therefore seeks the position of an owner-lessor. In any case, the purchase order form of "lessor" to the dealer expressly provided that "all warranties . . . shall be fully enforceable by us and/or by lessee in its own name."
The "lessee" is therefore an appropriate party plaintiff, with the power to return the copier, to enforce La.C.C. 2476's warranty against redhibitory vices.
Reversed at Dennison Manufacturing Company's cost; remanded.