Case No. 814 | Tex. | Jan 30, 1882
By the amended petition appellant represented that appellee warranted the drug sold and delivered to him to be genuine “Paris green; ” the appellee excepted to the amendment on the ground that it asserted a new cause of action, and that more than two years had elapsed between the breach of the warranty and the assertion of the same by the amendment.
The cause of action was stated in the original petition; the amendment but amplified' the representation contained in the original. There was no new cause of action set up in the amendment, and therefore the statute of limitations had no application.
It is claimed that in the sale of chattels, where the purchaser has an opportunity to examine before the purchase is made, that the common law rule of caveat emptor applies without exception. As a general rule, the doctrine does apply in the purchase of chattels, when an opportunity for examination by the purchaser is shown. But where, from the nature of the article, or the peculiar character of the business in which the saméis being sold,
The appellee was engaged in the business of a druggist, holding himself out to the public as one having the peculiar learning and skill necessary to a safe and proper conducting of the business. The general customer is not supposed to be skilled in the matter, and, as represented in this case, does not know one drug from another; but hi the purchase of drugs, the customer must rely upon the druggist to furnish the article called for; and in this particular business, the customer who has not the experience and learning necessary to a proper vending of drugs would not be held to the rule that they must examine for themselves. It would be but idle mockery for the customer to make the examination, when it would avail him nothing.
On the contrary, the business is such that in the very nature of things the druggist must be held to warrant that he will deliver the drag called for and purchased by the customer. If, as claimed, the appellee delivered to appellant some harmless or useless drug instead of the Paris.green asked for by appellant, he would be held liable for the damages resulting from the act as a natural or legal consequence.
We conclude that the court below erred in sustaining the appellee’s exceptions and dismissing the suit.
In view of a trial in the court below, it is deemed proper to indicate our opinion as to the correct rule as to this character of cases in measuring the damages.
No principle is more firmly established than that remote and speculative damages cannot be recovered on account of the breach of contract, when that breach is unmixed with the elements of force or fraud.
Taking as true the representations in appellant’s peti
But as to what the cotton would have made had the worm been destroyed, is a matter of conjecture depending upon various contingencies, and would be remote and speculative, and therefore not recoverable in the absence of express stipulation binding the party in that particular.
The judgment ought to be reversed and the cause remanded.
Reversed and remanded.