Jones v. George

• Decision Date: 30 January 1882
• Docket Number: Case No. 814.
• Citation: 56 Tex. 149
• Parties: W. J. JONES v. R. F. GEORGE.
• Court: Texas Supreme Court

56 Tex. 149

W. J. JONES

v.R. F. GEORGE.

Case No. 814.

Supreme Court of Texas.

Jan. 30, 1882.

On the 10th day of October, 1875, W. J. Jones brought this suit in the district court of Galveston county against R. F. George, to recover on the breach of warranty. The petition and amendments alleged that in the year 1873 appellant was engaged in growing Sea Island cotton in the county of Galveston; that he had at great trouble and expense planted and cultivated about one hundred and sixty acres of land in said cotton; that in July of that year his cotton was in a flourishing condition, when the cotton worm made its appearance in the same; that George was then, and had been for a long time previous thereto, a druggist, engaging in that business in the city of Galveston. Appellant had been informed by appellee and others that the worm might be destroyed by the use of “Royall's patent” for killing worms, the principal ingredient of which was Paris green; that he obtained a small portion of what appellee told him was Paris green, and applied it to the cotton to ascertain whether or not it would injure the plant; that after trying the same he became satisfied that it did not injure the plant; that this trial was made before the worm made its appearance; that so soon as he ascertained that the worm was in his cotton, he applied to George for Paris green, for the purpose and with the intent of using the same in destroying the worm; that appellee was informed and knew that it was to be used in that way; but in fact and in truth the appellee sold and delivered him some other and harmless drug as and for Paris green; that appellant knew nothing about drugs, etc., and relied entirely upon appellee to furnish the Paris green; that at great trouble and expense, to wit, $218.60, he applied the compound to the cotton in accordance with the patent; that if the same had been Paris green it would have destroyed the worm without injury to the cotton; but that the drug furnished to him by George as and for Paris green was harmless and did no injury to the worm. That by reason of all which he lost his entire crop of one hundred and twenty-four acres of cotton; avers that the same would, if it had been saved from the worm, made him $20,000. He sued for that sum as damages. By amendment filed December 13, 1875, Jones represented “that the defendant, well knowing the purpose for which the Paris green was desired by him, sold, delivered and fully warranted the drug sold as aforesaid to petitioner as genuine Paris green, but the said drug so sold was not Paris green, but was some other harmless drug.”

The appellee filed general and special exceptions, and also answers not necessary to notice. Appellee's demurrers to appellant's original and amended petition were sustained.

George P. Finlay, for appellant.

Willie & Cleveland, for appellee.

I. Until the amended petition of December 13, 1875, there was no allegation, in terms, that defendant warranted the article sold to be Paris green. Neither was it anywhere alleged that defendant was guilty of any fraud in the sale, or that he knew the article sold was not Paris green. Unless, therefore, the averments of the two first petitions make out a case of implied warranty, they were subject to demurrer for showing no cause of action. If the amendments contained in the two last petitions cure this defect, it is by reason of adding the allegation that the defendant warranted the substance sold to be Paris green, and they thereby set up a new and different contract and cause of action, arising more than two years before they were filed, and which are therefore barred by the statute of limitation. This is not a case like Lee v. Boutwell, 44 Tex., 151, where the difference consisted in the manner of stating the form of the breach. Governor v. Burnett, 27 Tex., 32;Williams v. Randon, 10 Tex., 74;Thouvenin v. Lea, 26 Tex., 612.

II. The authorities that tend to engraft upon the common law rule the civil law doctrine of caveat venditor qualify that rule only thus far: when the means of observation are not equally open to both parties there is an implied warranty. This qualification does not allow the purchaser to refuse to examine where he can, although the investigation would be fruitless. He is protected only when an examination would be...