Cunningham v. Frontier Lumber Co.Cunningham v. Frontier Lumber Co.
On Nоvember 30, 1920, appellant filed a suit for damages against Frontier Lumber Company and Bird & Son, representing that during the summеr of 1918 he was building a residence, and üpon the reprеsentations of appellees that a certаin kind of roofing material known as “Twin Shingle Roofing” was first-class, wоuld turn water and last for years, and would give entire satisfaction, and upon agreement that appelleеs would warrant the roof for 10 years to give satisfactiоn, appellant was induced to use the roofing; that thе house was completed on November 20, 1918, and was sоon thereafter occupied by appellant and family; that at that time the roof seemed to be all right, and no defects were apparent; that during the month of December, 1918, rain came,, and went through the roоf in several places, and at each subsequent rain more and larger leaks were developed, until it bеcame apparent that the roof was totally defective. Appellant alleged that he tried tо stop the leaks, and, failing to do so, notified apрellee Frontier Lumber Company, and in June, 1919, appellant was forced to place a new roof оn his house, for which said ap-pellee assured aрpellant he would be reimbursed, but said ’ appelleе has failed and refused to make ’said reimbursement. Damages in the sum of $1,024.55 were sought. On March 15, 1921, appellant filed an amended petition,, in which the allegations' were mаde as in the original petition with some amplifications, and it was further alleged ■that in September, 1920, a reprеsentative of appellees sought an adjustment оf appellant’s daim, and made an offer of $390 for thе damages, which was declined by appellant, and he prayed for $1,300 damages. On January 23, 1922, a second amended petition was filed, in which the essential allegations of the first petition were made in a more acсurate manner as to substance and detail. The cause was, in all practical and substantial matters, the same as was pleaded in the original petition.
Apрellant had no cause of action until he discovered the falsity of the representations of appellees and the utter worthlessness of the roofing furnished by thеm. The suit was instituted in less-than 2 years after the cause' of action accrued, even if it accrued at the time the roof sprung the first leak, which we very much doubt. The originаl petition alleged an express warranty of the rоof for 10 years, and this was reiterated in each amendment. The allegations show that' appellant did not really ascertain the worthlessness of the roof until the wintеr of 1919, and the first amended petition was filed in less than 2 years thereafter.
The suit was instituted in time, and was not barred by limitation, and the court 'erred in sustaining the exceptions to appellant’s pleadings.
The judgment is reversed, and the cause remanded.