Bishop-Babcock-Becker Co. v. Jennings

• Decision Date: 21 June 1922
• Docket Number: (No. 6395.)
• Parties: BISHOP-BABCOCK-BECKER CO. OF TEXAS v. JENNINGS.
• Court: Texas Court of Appeals

245 S.W. 104

BISHOP-BABCOCK-BECKER CO. OF TEXAS v. JENNINGS.

(No. 6395.)

Court of Civil Appeals of Texas. Austin.

June 21, 1922.

Rehearing Denied October 18, 1922.

Appeal from Hays County Court; J. R. Wilhelm, Judge.

Action by C. W. Jennings against the Bishop-Babcock-Becker Company of Texas. From judgment for plaintiff, defendant appeals. Reversed and remanded.

R. E. McKie, of San Marcos, for appellant.

BRADY, J.

Appellee sued appellant for damages for breach of warranty growing out of the sale by appellant to appellee of a carbonator for use with a soda fountain. He alleged a written contract, attached as an exhibit to the petition, and the breach of an express verbal warranty, as well as an implied warranty. It was further alleged that the carbonator was defective when delivered. Appellee sought to recover special damages for injury to his stock of goods caused by the leaking of the carbonator, for waste of gas, for loss of trade, and for the price of the carbonator, with interest. The cause was submitted upon special issues, and judgment was rendered for appellee in the sum of $588.

The first point presented relates to the issue of limitation. Appellant raised this question by exception to the petition, it being claimed that it appeared from the petition that the cause of action sued upon accrued more than two years prior to the filing of the suit. We have concluded that the assignment raising this question must be sustained. Appellee alleged that the carbonator was purchased on or about January 31, 1917, and was received in about a week thereafter. The petition of appellee further alleged that the carbonator was defective when received, and that his damages immediately begun to arise. It thus appears from the averments that appellee had knowledge of the breach of warranty, if any there was, not later than the first week in February, 1917, and he could then have maintained his action for breach of warranty and damages. The petition contained averments that from time to time appellant sent its agents to look at the carbonator, and assured appellee that it was all right; but it is also alleged that appellant finally, about July 1, 1917, sent an agent to look at the carbonator, and that such agent inspected the same, insisted that it was in good condition, and refused to repair or replace it. The view most favorable to appellee is that his cause of action accrued on July 1, 1917, when the final refusal to repair or replace the carbonator was made, but he did not bring his suit until March 1, 1920.

It is well settled that the defense of limitation may be raised by special exception where the facts appear upon the face of the pleading. Garcia v. Yzaguirre (Tex. Com. App.) 213 S. W. 236; Schutz v. Burges, 50 Tex. Civ. App. 249, 110 S. W. 496; Gathright v. Wheat, 70 Tex. 740, 9 S. W. 76; Grounds v. Sloan, 73 Tex. 662, 11 S. W. 898.

Our Supreme Court has held that the statute of two years applies in an action of this kind, the suit being for a breach of implied warranty. Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S. W. 908. The question is more fully discussed in the opinion of the Court of Civil Appeals in the same case, 95 S. W. 705. This statute applies even though the goods were purchased under written contract (Kirwan v. Alamo Iron Works [Tex. Civ. App.] 155 S. W. 986), and even where fraud is alleged (Gordon v. Rhodes, 102 Tex. 300, 116 S. W. 40).

There are allegations in the petition here that appellee's damages continued to accrue up to November 1, 1918, when the carbonator was returned by appellee, and therefore it is claimed the suit was brought in time. We think this contention is settled adversely to appellee by Smith v. Fairbanks, Morse & Co., supra. The holding was that the cause of action arose at the time of the breach, whether the damages had then accrued or not, and the Supreme Court expressly approved the decision of the Court of Civil Appeals on that point. It was also there decided that the acts of the vendor's agents in undertaking to repair or remedy defects in the machinery, after installation and assurances given, would not affect the question of limitation, but that the statute was put in motion by the breach and discovery thereof, and was not interrupted by subsequent attempts to remedy the defects nor by assurances given. Under these authorities we conclude that the exception should have been sustained, and the...