delivered the opinion of the Court:
The question in this case is when the statute of limitations began to run against defendant’s demand in set-off.
If from the date of sale and delivery, the set-off is barred. If it began to run only from the discovery of the condition of the sardines, or from such time as this condition could reasonably have been discovered as pleaded, the judgment must be reversed.
*110- The contention in support of the judgment below is that when property is sold with a warranty of soundness the cause of action for breach of that warranty occurs immediately upon the sale and delivery of the goods, and the statute of limitations begins to run from that time.
The following authorities are relied upon in support of the proposition:
25 Cyc. 1091, 1092; Battley v. Faulkner, 3 Barn. & Ald. 288, 22 Revised Rep. 390; Brackett v. Martens, 4 Cal. App. 249, 87 Pac. 410; Fairbanks, M. & Co. v. Smith, — Tex. Civ. App. —, 99 S. W. 705; Allen v. Todd, 6 Lans. 222; Baucum v. Streater, 50 N. C. (5 Jones, L.) 70.
Of the cases cited above only one, Allen v. Todd, directly supports the proposition.
In Battley v. Faulkner the cause of action was that defendant had sold plaintiff certain wheat warranted to be “spring wheat” in 1810; shortly after, plaintiff sold the wheat, with the same warranty, to one S. who, having planted it, discovered it was not as warranted. He began an action against plaintiff and recovered damages.
S. had notified plaintiff of the breach of the warranty in 1810 and then brought his action. The plaintiff notified the defendant of the pendency of the suit, judgment in which was not rendered until 1818. Plaintiff, paying S.’s judgment, brought suit against defendant in 1818.
All that was decided in the case was. that the statute began to run from the breach of the contract, and not from the date of the consequential damage. The limitation period was six years.
Abbott, Ch. J., said: “The plaintiff in this case might, as soon as he knew of the defective quality of the wheat, or at any time within the six years, have sued out a writ, and have thus obtained an efficient remedy against the defendant. It is by his own negligence that he is deprived of his remedy, and he has no right to complain.”
It was said that the breach of the contract is the gist of the *111action, and the special damage is stated merely as a measure of the damages resulting from the cause of action.
Baucum v. Streater is a similar case.
Fairbanks, M. & Co. v. Smith, — Tex. Civ. App. —, 99 S. W. 705. The plaintiff company sued for the breach of a contract in the purchase of a pump, which he discovered was defective.
It was held that the statute began to run from the time that plaintiff discovered the defect, and not from the date of the consequential damages.
Statutes of limitation were enacted to prevent frauds; to prevent parties from asserting rights after the lapse of time had destroyed or impaired the evidence which would show that such rights never existed, or had been satisfied, transferred, or extinguished, if they ever did exist. To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to- make the law which was designed to prevent fraud the means by which it is made successful and secure. And there is no reason why this principle should not be applicable to suits on the law side of the court as to those on the equity side.
Bailey v. Glover, 21 Wall. 342—349, 22 L. ed. 636—638; Lewis v. Denison, 2 App. D. C. 387—393.
It cannot be said that a person should assert a right before he has knowledge of, or is chargeable with knowledge of, the same.
lie must ordinarily have had such opportunity to ascertain his position as would be sufficient in the case of a man of ordinary intelligence and prudence under the circumstances of the case.
He must be diligent in informing himself upon the true state of affairs, culpable ignorance being offensive both in equity and at law.
The vender knew that plaintiff was a wholesale grocer when he made the sale, and that it was not likely that the true con*112dition of tbe goods sold would be discovered except on examination by retail dealers.
Apparently, from the averments of tbe plea, it was not practicable to examine tbe various cans of sardines contained in tbe cases sold.
If, then, it was not practicable for plaintiff to discover tbe true 'condition of tbe sardines, it ought to be allowed a reasonable time within which to make that discovery, and tbe statute of limitations would not begin to run until such time. Shearer v. Park Nursery Co. 103 Cal. 415—419, 42 Am. St. Rep. 125, 37 Pac. 412; Felt v. Reynolds Rotary Fruit Evaporating Co. 52 Mich. 602-604, 18 N. W. 378; Lewey v. C. H. Fricke Coke Co. 166 Pa. 536-543, 28 L.R.A. 283, 45 Am. St. Rep. 684, 31 Atl. 261, 18 Mor. Min. Rep. 179; Beach v. Branch, 57 Ga. 362-366.
Tbe exception to tbe plea of limitations should have been overruled, and tbe cause should have been submitted to tbe jury, with an instruction to tbe effect that tbe statute of limitations only began to run from tbe time when plaintiff, by the exercise of ordinary diligence under all tbe circumstances of tbe case, ought to have ascertained tbe fact of tbe breach of tbe warranty. .
Tbe judgment is reversed, with costs, and tbe cause remanded for further proceedings. Reversed and remanded.