Zahler v. Star Steel Supply Co. , 50 Mich. App. 386 ( 1973 )

Bashara, J.

Plaintiffs purchased 23 air conditioning units for an apartment complex from defendant Star Steel Company, the area distributor for defendant Luxaire, Inc., the manufacturer of the units. Installation of these units was completed in April, 1964. The units were covered by an initial one-year replacement warranty against defective materials or workmanship.

Approximately three months later, in July, 1964, the air conditioning units began to malfunction. Representatives of Luxaire made several recommendations for modification which it was thought would correct the problems. Such changes were made, but in the following summer season, July, 1965, the units again began to fail. Under an extension of its warranty, Luxaire replaced 17 units between July, 1965, and the summer of 1967. In September, 1967, Luxaire notified plaintiffs that no further units would be. replaced. In July, 1968, plaintiffs experienced further difficulties and were forced to replace the compressors in ten more units.

Plaintiffs commenced an action against these defendants in April of 1969, regarding these same events. This case was dismissed, without prejudice, for lack of progress in July of 1970. The instant suit was commenced in December of 1971.

Defendants sought and were granted accelerated judgment on the grounds that plaintiffs’ action was barred by the applicable statute of limitations, GCR 1963, 116:1(5). Plaintiffs now appeal challenging that determination.

The applicable statute of limitations is from the Michigan Uniform Commercial Code and provides, in pertinent part, as follows:

"(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.

"(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

"(4) This section does not alter the law on tolling of the statute of limitations * * * .” (MCLA 440.2725; MSA 19.2725.)

Plaintiffs first assert that the statute of limitations was tolled during the period defendants attempted to repair the units. MCLA 440.2725 (4) states that the Uniform Commercial Code has no effect on tolling, leaving such matters to the applicable state law.

A review of precedent nationally reveals a split of authority between the few states which have considered the question. Some jurisdictions are of the opinion that attempts by the seller to repair goods do not operate to toll the statute of limitations. Lewis v Jacobsen, 30 Pa D & C 2d 623; 1 UCC Rep 194 (1962); Thalrose v General Motors, 8 UCC Rep 1257 (NY S Ct, 1971); Bobo v Page Engineering Co, 285 F Supp 664 (WD Pa, 1967), aff'd 395 F2d 991 (CA 3, 1968); Binkley Co v Teledyne Mid-America Corp, 333 F Supp 1183 (ED Mo, 1971). See Aced v Hobbs-Sesack Plumbing Co, 55 Cal 2d 573; 12 Cal Rptr 257; 360 P2d 897 (1961), for the opposite view. We are persuaded that the former group of cases set forth the better rule. Mere attempts by the seller to remedy the defects which give rise to the cause of action do not toll the statute of limitations.

The fact that the statute was not tolled requires a finding that the present action is barred. Under MCLA 440.2725 (2) the cause of action for breach of warranty accrues upon tender of delivery or the first opportunity to discover the breach, depending on the type of warranty. In the case at bar, installation was completed in April of 1964 with discovery of breach made in July, 1964. Using either of these dates for accrual of the cause of action, the suit is clearly beyond the four-year statutory requirement as the complaint was filed in April, 1969.

Plaintiffs also contend, correctly, that the statute was tolled during the pendency of the prior action between these parties. This Court has recently held that the statute is tolled during the pendency of a suit which is subsequently dismissed without prejudice even if the dismissal is for no progress. Stewart v Michigan Bell Telephone Co., 39 Mich App 360; 197 NW2d 465 (1972). However, the prior action being barred, the subsequent suit is also barred.

Affirmed. Costs to defendants.

Danhof, J., concurred.