ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Saturday, April 2, 2005

Dang, I knew we forgot something

Texas_flag Plaintiffs who bought a Caterpillar tractor from a Caterpillar dealer that failed to operate properly lost their breach of contract action against both the manufacturer and the seller—on the rather bizarre ground that they failed to provide any evidence of a contract with Caterpillar or that there had been a breach by the dealer.

After discovery in the case, both Caterpillar and its dealer, Mustang, moved for summary judgment on the ground that plaintiffs had adduced no evidence of the contracts. Plaintiffs responded with "the entire transcripts of their depositions, their affidavits, the affidavit of [another witness], and several documents related to the purchase of the tractor."  Remarkably, however, the only portions of this evidence that related to whether a contract was made or that the tractor did not work were the two affidavits—and for some reason they weren’t signed.

Texas requires more than a scintilla of evidence, said the state’s court of appeals, and unsigned affidavits won’t do it.

Duke v. Caterpillar, Inc., 2005 Tex. App. LEXIS 1 (Houston–1st Dist., March 10, 2005)

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