Louisville Silo & Tank Co. v. Thweatt

• Decision Date: 20 June 1927
• Docket Number: 82
• Citation: 295 S.W. 710,174 Ark. 437
• Parties: LOUISVILLE SILO & TANK COMPANY v. THWEATT
• Court: Arkansas Supreme Court

295 S.W. 710

174 Ark. 437

LOUISVILLE SILO & TANK COMPANY v. THWEATT

No. 82

Supreme Court of Arkansas

June 20, 1927

Appeal from Prairie Circuit Court, Southern District; George W Clark, Judge; affirmed.

Judgment affirmed.

M. F Elms, for appellant.

W. A Leach, for appellee.

OPINION

SMITH, J.

Appellee filed a complaint on February 9, 1925, against appellant, which contained the following allegations:

That, on or about September 30, 1918, he purchased from the defendant a steel granary, to be used by him in storing his rice crop. Said granary was warranted to be fit and suitable for the purpose for which it was sold and to be so constructed as to keep rice stored therein perfectly dry and prevent any damage on account of excessive moisture. The granary was installed in the fall of 1918, and, in October of that year, plaintiff stored his 1918 rice crop therein, where it remained until the early part of 1919, and, upon removing the rice from the granary, it was found that said granary had permitted such a large inflow of water that 250 bushels of the rice were destroyed. The defendant, upon being notified, attempted to repair the granary, and assured plaintiff that it had been repaired and would not leak, and that rice could be stored therein without loss or damage. Relying on this representation, and believing that the granary would no longer leak, plaintiff stored his 1919 rice crop in the granary in the fall of that year, but, upon removing it in January, 1920, it was found that 300 bushels of the rice had been totally destroyed and was unfit for market by reason of having become wet. The defendant was notified of this damage, and again undertook to repair the granary and to put it in such condition that it would prevent the inflow of water, and, after making such repairs, again informed plaintiff that rice could be stored in said granary safely and without any fear of loss or damage on account of leakage. Relying on defendant's assurance that such granary was in such condition that rice could be stored therein with safety, plaintiff stored his 1920 crop therein in the fall of that year, but, when removed in the following spring, it was found that 300 bushels of the rice had been totally destroyed. Said granary was purchased for the price of $ 769, of which $ 300 was paid upon its installation. The balance of $ 469 was evidenced by a promissory negotiable note, which had passed into the hands of an innocent purchaser for value before maturity, and plaintiff was required to pay it. Said granary was wholly unfit for the purpose for which it was sold, and is entirely without value, and plaintiff offered to return it, and made tender thereof. Wherefore plaintiff prayed judgment for the purchase price of the granary, and for damages to his crops of rice.

To each of these causes of action the defendant interposed a demurrer upon the ground that it affirmatively and necessarily appeared from the face of the complaint that each cause of action was barred by the statute of limitations.

The court overruled the demurrer to the paragraph of the complaint in which judgment for the purchase price of the granary was asked, but sustained the demurrer to the three paragraphs praying damages for the loss of the rice. The defendant stood upon its demurrer, and declined to plead further, and judgment was rendered against it for the purchase price of the granary, and the complaint was dismissed as to the claims for damages to the rice. From this judgment the defendant has appealed, and the plaintiff has prosecuted a cross-appeal.

Appellant insists that all the causes of action sued upon are barred, and that the court erred in not so holding, while appellee insists that none are barred except the action for the damage to the rice stored in the granary in the fall of 1918.

Section 6955, C. & M. Digest, reads as follows: "Actions on promissory notes, and other instruments in writing, not under seal, shall be commenced within five years after the cause of action shall accrue, and not afterward."

The granary was sold under a written contract, and the applicable statute of limitations to the action for damages for its breach is the statute quoted. Sims v. Miller, 151 Ark. 377, 236 S.W. 828.

Appellant insists, however, that, as more than five years expired between the installation of the granary and the institution of this suit, the cause of action to recover for the breach of the warranty is barred.

Ordinarily a cause of action for breach of warranty in the sale of personal property accrues upon the delivery of the property, the warranty being broken when made, and the statute of limitations runs from the date of delivery. This is true because the commencement of the limitation is contemporaneous with the origin of the cause of action. Woodland Oil Co. v. Byers & Co., 132 Am. St. Rep. 737, 223 Pa. 241, 72 A. 518.

A well-considered case, which supports appellant's contention, is that of Fairbanks, Morse & Co. v. Smith, 99 S.W. 705, which was affirmed by the Supreme Court of Texas in 102 S.W. 908, 101 Tex. 24. The syllabus in that case reads as follows:

"Where there was a breach of a warranty that a gasoline engine would develop 34 horsepower and would be suitable for pumping water to irrigate a crop of rice, the statute

...