Kirwan v. Alamo Iron Works

• Decision Date: 26 March 1913
• Citation: 155 S.W. 986
• Parties: KIRWAN et al. v. ALAMO IRON WORKS.
• Court: Texas Court of Appeals

155 S.W. 986

KIRWAN et al. v. ALAMO IRON WORKS.

Court of Civil Appeals of Texas. San Antonio.

March 26, 1913.

Rehearing Denied April 23, 1913.

Appeal from District Court, Brooks County; W. B. Hopkins, Judge.

Action by George B. Kirwan against the Alamo Iron Works, in which W. W. Riley intervened as warrantor. From a judgment of dismissal, plaintiff and intervener appeal. Reversed and remanded.

T. Wesley Hook, of Falfurrias, for appellants. C. A. Keller, of San Antonio, for appellee.

MOURSUND, J.

On December 22, 1912, Geo. B. Kirwan sued Alamo Iron Works, a corporation, alleging that said corporation was indebted to him upon two choses in action; one accruing to him and the other held by him as assignee of W. W. Riley. Later said Riley by leave of court intervened as warrantor of the choses in action assigned by him to Kirwan. The case comes to us upon one assignment of error, by which Kirwan and Riley complain of the court's ruling in sustaining an exception to the effect that plaintiff's cause of action as stated in the petition accrued more than two years before the commencement of the suit, and was therefore barred by the statute of limitations. Appellants having declined to amend, the case was dismissed.

The petition alleges two distinct causes of action, and we will first take up that portion dealing with the cause of action alleged to have accrued to Kirwan.

It is first alleged that July 22, 1908, Kirwan and appellee entered into a written contract, whereby appellee, for a valuable consideration, agreed to deliver to Kirwan at Falfurrias, Tex., "one 16-foot Sampson mill with steel tower, one 12" cylinder, one Kewanee water system, No. 11, with tank 36 by 120 (automatic), and all valves, gauges, pipe and fittings, combined air and water pump, all complete, one walking beam and attachments for two pumps, all pipes and fittings to couple pumps to well and small pump to tank, and all pipes and fittings to couple tank to bath, sink, etc., all f. o. b. Falfurrias." It is further alleged: "That the material and workmanship of all of said goods were to be sufficiently good so that the said goods would perform the work ordinarily performed by such articles, and defendants were obligated by said contract to furnish goods of such material and workmanship." It is further alleged that, due to the negligent failure of defendants to perform the obligations incumbent upon them by the terms of said contract, all of such goods were defective as to material and workmanship; that the Kewanee system and the walking beam were absolutely worthless to plaintiff; that the agreed price of the Kewanee system was $166, and "defendants were by said contract obligated and bound to furnish an automatic water system to perform the work ordinarily performed by such system, with a pressure sufficient to throw water over the house of plaintiff, but said system, due to defective material and workmanship, due to negligence of defendants and their failure to perform their obligations imposed on them by said contract, has not performed such work, but has proved a total failure from the start, to plaintiff's damage $166, cost price."

In regard to the walking beam it is alleged that "by said contract defendants were obligated to furnish a walking beam which would perform the work ordinarily performed by such goods, but, due to defendant's failure to perform the conditions...