Peterson v. Brown

• Decision Date: 20 February 1950
• Docket Number: No. 4-9089,4-9089
• Citation: 227 S.W.2d 142,216 Ark. 709
• Parties: PETERSON v. BROWN.
• Court: Arkansas Supreme Court

Page 142

227 S.W.2d 142

216 Ark. 709

PETERSON v. BROWN.

No. 4-9089.

Supreme Court of Arkansas.

Feb. 20, 1950.

William K. Harris and Daily & Woods, Fort Smith, for appellant.

Lawson Cloninger and Myles Friedman, Fort Smith, for appellee.

HOLT, Justice.

Appellee, a food broker, resided in New Iberia, La. Appellant, a resident of Fort Smith, was, prior to September 1945, operating a canning plant in Sallisaw, Okla., processing and packing, in tin cans, mustard and turnip greens.

July 9, 1945, appellee purchased, through appellant's broker, 1000 cases of mustard greens and 500 cases of turnip greens. Shipment was made from Sallisaw on July 9th and delivery was made not later than July 16th, 1945 to appellee at New Iberia. A part of the shipment was stored in a warehouse in New Iberia and the remainder in a warehouse in Alexandria. Appellee sold to customers from these warehouses the above canned goods, over a period of approximately two years, or until the stock, of these canned goods at New Iberia, had been reduced to 225 cases, and that at Alexandria to 45 cases.

Appellee brought the present action September 4, 1948, more than three years from the date of sale, or delivery. He alleged in his complaint, in effect, breach on the part of appellant of an implied warranty that the goods were merchantable, fit for resale, and for human consumption; that the 225 cases in New Iberia were seized August 20, 1947, condemned and destroyed under the provisions of the Federal Pure Food and Drugs Act, 21 U.S.C.A. § 342(a)(3), and the 45 cases at Alexandria were likewise seized on February 25, 1948 and later destroyed. He sought to recover $714.12 in damages.

Appellant's answer was a general denial and affirmatively pleaded the three year Statute of Limitations as a complete bar to the suit. A jury trial resulted in a verdict for appellee for $704.29, and from the judgment is this appeal.

For reversal, appellant strongly contends that appellee's cause of action was barred by the three year Statute of Limitations, and that the court erred in refusing his request to so instruct the jury.

We have reached the conclusion that this contention must be sustained.

The sale in question was made July 9, 1945, and delivery made not later than July 16, 1945. The present suit was filed September 4, 1948, more than three years and one month from the date of sale, or delivery. The contract of sale was oral and the three year Statute of Limitations applies (Ark.Stats.1947, section 37-206). The primary and decisive question here is: When did this statute begin to run, or from what date must it be computed?

In this case, there was no allegation of fraud or any proof thereof, and we have been unable to find any evidence in the record that would toll the statute, or that would establish a new date, subsequent to July 1945, from which the statutory period should be computed.

The general rule, subject to exceptions, which we do not find present here, appears to be that any breach of warranty of soundness, kind or quality is broken when made and the statute of limitations begins to run from the date of the sale. In 37 C.J. 836; 54 C.J.S., Limitation of Actions, § 138c, the rule is stated as follows: 'Where unsound personal property is sold with a warranty of soundness, the warranty is broken as soon as made and the statute begins to run from the date of the sale, not from the time when the buyer sustains consequential damage. Likewise where goods are warranted to be of a certain kind or quality, but are not of that kind or quality, the warranty is broken when made and the statutory period is computed from the date of the sale, not at the time when special or consequential damage results, or from the date when the breach is discovered; and this, although meanwhile the buyer is wholly unable to ascertain whether the goods comply with the warranty.'

Appellee concedes that the above is the general rule and says that the court 'has stated in previous decisions that the Statute of Limitations ordinarily commences to run when the cause of action accrues, and that a plaintiff's ignorance that a cause of action exists will not prevent it from running,' but that the present case falls within exceptions to the general rule, and further says: 'This court has not passed upon the question directly, but decisions made by this court indicate that it would hold that the Statute of Limitations would begin to run only when a latent defect in personal property is discovered, or reasonably should have been discovered.'

He then cites and relies strongly upon Louisville Silo & Tank Co. v. Thweatt, 174 Ark. 437, 295 S.W. 710, and the case of P. H. Sheehy Co. v. Eastern Importing & Mfg. Co., 44 App.D.C. 107, L.R.A.1916F, 810, to which reference was made in the Thweatt case. Our construction, however, of our holding in the Thweatt case tends strongly to support the above general rule, and appellant's contention.

In that case, there was involved the sale of a steel granary to be used in storing rice, and we held, on one of the actions therein, that the Statute of Limitations was tolled by the seller's promise to make repairs and that the statute therefore began to run from the date following the last effort to make repairs. In the present case, as pointed out above, there is no proof of anything that would toll the statute.

In the Thweatt case, this court said [174 Ark. 437, 295 S.W. 712]: '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.'

There we recognized and announced the general rule, and a minority rule.

The Sheehy Co. case (a canned goods case) was referred to only as supporting the minority view.

We also recognized and affirmed the rule that, in the absence of fraud, contract (or evidence sufficient to toll the statute), an action for breach of implied warranty of fitness of personal property accrues from the date of sale, and delivery, the warranty being broken when made and the limitations statute runs from that date. In the Thweatt case, there was evidence from which it was held the statute had been tolled and it was there said: 'We hold, therefore, that while the statute of limitations ordinarily begins to run against an action for breach of warranty upon the sale and delivery of a chattel which does not comply with the warranty, yet the statute is tolled so long as the vendor insists that the...