ARK.] LOUISVILLE SILO & TANK CO. V. THWEATT. 437 LOUISVILLE SILO & TANK COMPANY V. THWEATT. Opithon. delivered Jthie 20, 1927: • LIMITATION OF ACTIONS—BREACH OF WARRANTY. CrawfOrd & Moses' Dig. § 6955, providing that actions on instruments in writing shall be commenced within five/ years, applies, to a ' buyer's action for damages for breach,of warranty . arising, from a written contract'of sale. 2. LIMITATION OF ACTIONS — WHEN STATUTE . BEGINS TO aux.7—The commencement of the.limitation period is 'contemporaneous with the origin of the cause of action. 3. LimirArioN OF ACTIONS—BREACH OF . WARBANTY.-'---Ordiriarily, a cause of action for breach of warranty on the sale of personal property accrues upon the delivery .of the, property; and the . statute of limitations runs from . the tlate o • f delivery.. . 4. LIMITATION OF ACTIONS—STATUTE TOLLED . WHEN.—While the statute of limitations ordinarily begins to„run against an . action for - breach of warranty on 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 defect can be repaired and is attempting to do so. 5. PLEADING—ADMISSION BY DEMURRER. —In an action tor °reach of warranty on the sale of a chattel, allegations of the complaint that it was without value and that return , thereof had been tendered, were admitted by defendant's demurrer. 6. SALES—MEASURE OF DAMAGES FOR BREACH OF WARRANTY,— The measure of damages for breach of a warranty in a sale a a granary was the price paid, where the article was Witho'ut value and the buyer had tendered its return. 7. LIMITATION OF ACTIONS—ACCRUAL OF CAUSE OF ACTION:—In an action by a buyer against a seller for damages to rice arising from defects in the granary sold, the statute began to run from the time when damage to the rice was discovered, as.the cause of action for damages accrued at that time. 8. LIMITATION OF ACTIONS—PAROL AGREEMENT.—Tile statute . of limitations applicable to a verbal promise of the seller to repair a granary, and a verbal warranty that the attempt to make such repairs would be successful, was -the statute applicable to .parol agreements, though the sale contract was.in writing. 9. LIMITATION OF ACTIONS—WHEN STATUTE . NOT TOLLED --The right of a buyer to sue for damages to rice, caused by the defective condition of a granary sold, was not affected by the seller's . promise that damage would not occur in the future, so as to prevent the running of the statute. ,
438 LOIIIsirILLE. SILO & TANK . CO: v. TELWEATT: [174 Appeal from Prairie 'Circuit . Court, Southern District; George W..Clark, Judge ; affirmed. . M. F. Elms, for appellant. W. A. Leach, for appellee. S*Ina, J. Appellee . filed a complaint on February 9, 1925, against appellant, which edntained the following allegations : T . hat, 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
AIM.] Loui g vnAin -SILO ' 66 TA -NW' ) CIY.' 1). THWEATT: 439 I year, bat, when tethoved in the'followin o, springiit was ‘ fotind that 300 bUshels : of s the ' Tice; : had been: :_totally ' destroyed,' Said granary 'was purchased for the:price of $769, of which $300 'wa g ijaid -. uPon its/ installation. The balance-of s$469 was evidenced by a-promis g ory Rego-i liable : note, which had : passed into the hands Of an inno;: k cent purchaser for. value 'before , maturity,' and plaintiff was required to pay it. , Said granary i was wholly unfit fel' 'the purpose for which it : was sold,:alid. 'is. entirely Without value, and-plaintiff offered to return it ., and made tender thereof. Wherefore ' plaintiff :prayedy judgment' for the purchase price -of the , granary, and for damages \ tO' his' crops 'of rice. ' , . . . ; 1 To eaCh'of 0ese CauseS Of action the defendant inter p'oed a demUirer . upon 06 ground' that sit affirraatively and necessarily apPeared froth-the' faCe sof the cOmPlaint that' each cau ge • Of'action was- barred by the' statute of limitations. 1 The Court overruled the demurrer to the paragraph Oi " the coMplaint in which judginent . for the purchase ) price of the granary was asked, bUt sustained the demur-rer to the three paragraphs praYing dathages tor the loss otthe rice: The'defendant aood upon its deinurrer, and declined 'to plead further, and judgment was rendered ' again gt it . for the purelia g e: price' of the granary, and the # complaint Wa g di§missed as to the Claims for damage§ to \ the, riee'.' " FroM this' judginent , 'the ' defendant has , apPealed, and the praintirt ha§ PrO§eCnted a -Cro'ssappeal: Appellant insistOhat all Oe causes of : 4 p tion sued upon are barred, and that the court erred in not . • so holding, i while app , ellee :insists , that none are barred . except the action for , the 'damage to the rice ,stored ,in the granary in. th.e fall, of 1918 . . : :,, , . i , i , ,. „: H Section: 6955, •C. &' M. -Digeit rs Tea& ' a g folloWs : "Actions on promissory notes, and other instrument g in ) 'writing, not Under .seal, .shall be , ceunmenced within five years :after the carts& of action ' shall : accrue; and not afterward." .: )
440 LOUISVILLE SILO & TANK CO. V. THWEATT. [174 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 arid 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 snitable for pumping water to irrigate a crop of rice, the statute commenced to run against the buyer's right of action and counterclaim for damages when the , engine was installed, and . not subsequently, when conSequential damageS aroSe in the loss of his crop, without regard to When he discovered the' , breach, . and though the seller, after installing the engine, undertook to render it e'ffeciive." • . • The authorities, hOwever, are divided on this question. • The case of P. H. Sheehy Co. v. Eastern Importing & Mfg. Co., 44 App. D. C. 107, is extensively annotated in L.:R. : A. 1916F, 810. The' syllabus in that case'reads f011ows : -• ' "The statute of limit:Aim Is upon an action for breach of warranty -upon a sale; of canned goods to a wholesaler for resale does not begin to run until the breach is dis-
ARK.] LOUISVILLE SILO TANK • CO. v. TIIWEATT. 441 covered, or should have been discovered, by the retailers, where it was not practicable for:the •holesaler. to open the cans for inspection." . In the annotator's note to the case last cited,a number of cases in harmony with it are, reviewed.. -Among other ca g es reviewed is. , that : of Felt Reynolds,Rotary Fruit Evaporating .Co., 52 Mich. 602, 18 N. W. 378; in which the opinion was written by Cooley, C. J. In that ease a fruit evaporator had been sold under a warranty, which was broken; and the manufacturer made. an effort to fix the machine so as to make it. comply with the, warranty, but the attempt failed. After keeping the evaporator for some months the purchaser tendered it back and demanded the retnrn of the cash payment made and the surrender of notes given for the balance . of the purchase money. When the offer was declined, suit was brought, and the statute of , limitations ,was pleaded, ,it being insiSted there, as it is here, that the statute. of limitations against the action for-the ,breach, of, the; warranty began to run from the date of the delivery and installation of the .machine. The contract of sale contained nO provision .for a lest to be made of the machine before the sale thereof should be complete, but Judge Cooley said that the contract contemplated that a. test should be made both as to the capacity ,of. the -machine and the quality of fruit turned ont by .it, .these -being matters covered by the warranty, and that,. if suit had been brought at any time before the test, it would apparently have been a defense to the suit that there had..not been, as yet; a reasonable time for testing the. result, of its workings, "for the parties respectively were continuing their experiments with it for. sorne time longer ; .the one trying it and the other endeavoring , to perfect it; and their 'acts are the best criterion , as to ,the time. required for these purposes." It was there, held that the Statute of limitationg did not hegin to. run ,against the cause of action for the breach of the warranty until there had been a failure, after test, to make the machine .comply with the warranty.
442 - LOUISVILLE SILO & TANK CO. V. THWEATTI [174 In the annotator's note, supra, the annotator says, after reviewing the Michigan . case; that "a decision somewhat in conflict, however, with . the above Michigan case, and seemingly not so much in i accord with reason and justice, is that of Fairbanks, M. & Co. v. Smith (Tex. Civ. App. 1907), 99 S. W. 705, affirmed‘ in 101: Tex. 24, 102 S. W:908." ' '• Other cases are cited in the annotator's note which are in accord with the views expressed by Judge Cooley: . In the case of Dyke v. Magdalena, 171 Ark. 225, 283 S. W. 374, a refrigerator had been sold under the warranty that it would preserve meats. It failed to do this, and the manufacturer attempted by repairs to make it do so. The attempt failed, and the purchaser sued for the breach of the warranty and for the damage to the meats which had been placed in the refrigerator. 'It was insisted that the' purchaser was in default in failing td . ue promptly for breach of the warranty, but we held that such was not the case because of the attempts which were made to remedy the defects. . . -. We hold therefore that,- while the statute of limitatiOns ordinarily begins' to rim , 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 tbat the , defect can be repaired and 'is attempting to' do' so. It j follows therefore that the suit to . recover the purehase i money was brought 'before the bar of ‘ the Statiite had fallen,' and, inasmuch as . the complaint alleges and the ) demurrer Admits that the granary wAs without valne, and thoreturn thereof had been tendered, fhe measure of Z' damages was the price paid, and the judgment rendered for that amount, will be affirmed.. . -' We are of the opinion that the court was correct in / sustaining the demurrer to the counts of the_ coMplaint praying damages for the . loss of the rice. When the rice i WaS damaged a complete cause of action Accrued. The first d ' amage was sustained in 1919:the' neXt in 1920, and the last in 1921, and more than *three yeai-s 'inter-1 >
vened after the‘ last .damage -was sustained before the institution of this suit.• The attempts to repair. ,were made pursuant .to a verbal promise 'SO to do and a verbalrwatranty that the attempts would be successful. , Any rights growing- ont of these promises tb repair and the .attempts to Make the repair rested upon 'a parol agreement, and the applicable statute of limitations against such contracts is three years. Had the attempts to repair the granary been successful, so that thereafter it would have complied with the warranty, this would not have satisfied the claim for damages which had already. accrued. In any event, the suit for the damages to the rice acörued when the damage to the rice,was discovered, and.any promise that the damage 'would not recur in the future could not affect the right to Sue for damages which had already. been 'sus, tained._ :Suits for the damage 'to the rice should therefore have,been brought within three years after its occurrence, and; as this was not done, the court below properly held that the snits therefor , were barred. The judgment. of , the!court beloW appears .to be correct upon both propositions, and it ,is therefore affirmed. ;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.