Smith v. Fairbanks, Morse & Co.
| Decision Date | 12 June 1907 |
| Citation | 102 S.W. 908 |
| Parties | SMITH v. FAIRBANKS, MORSE & CO. |
| Court | Texas Supreme Court |
Action by Fairbanks, Morse & Co. against Fort Smith. Judgment in the Court of Civil Appeals, First District (99 S. W. 705), reversing a judgment for defendant, and defendant brings error. Affirmed.
Fisher, Sears & Campbell, for plaintiff in error. Bryan & McRae, for defendants in error.
The defendants in error brought this action against the plaintiff in error to recover the amount due upon a promissory note executed by defendant to plaintiff for the price of a pump and attachments purchased by the former from the latter. The questions in the case arise upon the cross-action of the defendant for damages resulting from a breach of warranty on the part of plaintiff in the sale of the pump. It appears from the evidence that the pump was delivered and installed, according to the contract of sale, about June 15, 1902, and, after a few days' trial, was found not to have the power stipulated, and to be incapable of performing the work for which it was needed. There was evidence that, after this fact was developed, the defendant was about to remove the pump and install another, when plaintiff's agent appealed to him not to do so, undertaking to make it comply with the contract and furnish the requisite power, to which defendant assented; that this was attempted, and the efforts to comply consumed the time until November 15, 1902, when plaintiff's agent abandoned further effort, and admitted its failure. Further facts of the case, which need not be stated here, may be found in the opinion of the Court of Civil Appeals. 99 S. W. 705, 17 Tex. Ct. Rep. 542. The damages claimed by defendant resulted from the loss of his rice crop for the irrigation of which the pump was intended, which loss occurred after the final failure to make the pump work efficiently, and could have been prevented had the efforts to that end succeeded.
The Court of Civil Appeals held that the defendant's cause of action was for the original breach of warranty, which occurred when the pump was found to be insufficient, soon after its installation, on June 15th, and that it was barred by limitation when defendant's first plea in reconvention was filed November 11, 1904. One of defendant's contentions, in opposition to this view, is that the damage claimed as the result of the breach, the loss of the rice crop, accrued...
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