Amfac Foods, Inc. v. Fred A. Snyder Roofing and Sheet Metal Corp., JOHNS-MANVILLE

Decision Date05 November 1979
Docket NumberNo. A7610-14428,No. A7610-14418,JOHNS-MANVILLE,A7610-14428,A7610-14418
Citation43 Or.App. 107,602 P.2d 321
PartiesAMFAC FOODS, INC., a Delaware Corporation, doing business as Lamb-Weston, Appellant, v. FRED A. SNYDER ROOFING AND SHEET METAL CORPORATION, an Oregon Corporation, Respondent. FRED A. SNYDER ROOFING AND SHEET METAL CORPORATION, an Oregon Corporation, Third Party Plaintiff, v.SALES CORPORATION, a Delaware Corporation, Johns-Manville Products Corporation, a Foreign Corporation, and Crown Zellerbach Corporation, a Nevada Corporation, Third Party Defendants. ; CA 12283,; CA 12282.
CourtOregon Court of Appeals

G. Kenneth Shiroishi, Portland, argued the cause for appellant. With him on briefs was Morrison, Dunn, Cohen, Miller & Carney, Portland.

John E. Johansen, Portland, argued the cause for respondent. With him on the brief were Paul S. Hybertsen and McCormick & Reynolds, Portland.

Before SCHWAB, C. J., and LEE, GILLETTE and CAMPBELL, JJ.

GILLETTE, Judge.

In this contract action arising out of a dispute over the condition of a roof on a newly constructed building, the trial court granted defendant summary judgment based upon the statute of limitations contained in ORS 12.135(1). We reverse.

Plaintiff Amfac Foods, Inc., dba Lamb-Weston (hereinafter "Lamb-Weston") brought this breach of warranty action against defendant Snyder Roofing Company (hereinafter "Snyder") for the cost of repairing a roof. The roof had been built by Snyder as a subcontractor in the construction of a food processing plant. After completion, Snyder executed, on July 30, 1973, a two-year guarantee of workmanship and materials. Specifically, the guarantee provided:

"WHEREAS, at the inception of such work the Contractor (Snyder Roofing) agreed to guarantee the aforesaid roof against faulty materials or workmanship for a limited period and subject to the conditions herein set forth;

"NOW, THEREFORE, the Contractor hereby Guarantees, subject to the conditions herein set forth, that during a period of two (2) years from the date of completion of said roof, it will, at its own cost and expense, make or cause to be made such repairs to said roof resulting solely from faults or defects in material or workmanship applied by or through the Contractor as may be necessary to maintain said roof in watertight condition."

In its complaint, Lamb-Weston alleged that the defects of which it now complains were discovered and notice of them was given to Snyder within the two years provided in the guarantee. The trial court granted summary judgment to defendant on the theory that plaintiff's action here was one in tort and was therefore not timely filed under ORS 12.135(1) 1. Plaintiff acknowledges that this proceeding was not brought within the two-year period provided in ORS 12.135(1) but contends that the correct statute to be applied is ORS 12.080(1), 2 the statute of limitations for contract actions. ORS 12.080(1) is a six-year statute of limitations; plaintiff's action is timely if it applies.

Plaintiff is correct. Where, as here, the gravamen of the complaint is not the failure of defendant to properly install a roof in the first instance but, rather, the failure of defendant to abide by its express contractual duty to alleviate such unsatisfactory conditions as might appear during the two-year guarantee period, the complaint sounds in contract and ORS 12.080(1) governs. See Housing Authority of Portland v. Ash National, Inc., 36 Or.App. 391, 584 P.2d 776 (1978). 3

Defendant argues that, even if ORS 12.080(1) is the appropriate statute of limitations, the trial court was nonetheless correct in granting summary judgment to defendant because defendant is entitled to prevail under one or more of defendant's alternative theories, Viz., (1) that defendant has performed all of its obligations under the guarantee; (2) that the claim advanced by plaintiff has been satisfied; and (3) that, under its own terms, the guarantee has become null and void.

1. PERFORMANCE

Defendant first argues that its only obligation under the guarantee was to maintain the roof in watertight condition, and it has done so. To the contrary, as we read the record, defendant has stopped leaks as they appear but the roof has continued to develop new ones. There remains a factual issue as to whether the roof has been maintained in a watertight condition. Defendant was not entitled to summary judgment on this theory.

2. ACCORD AND SATISFACTION.

Defendant next argues that any claim between Lamb-Weston and defendant has been compromised and settled, with defendant having fully performed under the terms of the settlement.

The guarantee in question covered the period from July 30, 1973, to July 30, 1975. On June 9, 1975, representatives from Hoffman Construction Company (the general contractor), Lamb-Weston, Snyder Roofing and Johns-Manville (the roofing manufacturer) met and reviewed the problem. There was a further meeting on June 26, 1975.

Thereafter, Hoffman Construction Company prepared a "memorandum of agreement" expressing its understanding of the verbal agreements of the respective parties. A copy of the Hoffman memorandum was made a part of the motion for summary judgment.

The question is whether the documents submitted by the parties in connection with the motion for summary judgment establish the existence of an accord and satisfaction. They do not.

" ' * * * An accord is a contract * * * between creditor and debtor for the settlement of the claim by some performance other than that which is due. * * * Satisfaction takes place when (the) accord is performed * * *.' Restatement, Contracts § 417, Comment a. at 787-788." Capps v. Georgia-Pacific, 253 Or. 248, 453 P.2d 935 (1969).

The documents establish that, among other things, a dispute exists between the parties as to whether such repair work as defendant did on the roof was satisfactory. What was done and how well it was done remains an unresolved issue of fact. It would have been error to grant summary judgment on this theory.

3. GUARANTEE NULLIFIED

Finally, defendant argues that its guarantee has been rendered null and void by the occurrence of a condition subsequent. The warranty was given subject to the condition, Inter alia, that:

" * * *

" * * * No work shall be done on said roof, including, but without limitation, openings made for flues, vents, drains, sign braces or other equipment fastened to or set on the roof, Unless the Contractor shall be first notified, shall be given the opportunity to make the necessary roofing application recommendations with respect thereto, and such recommendations are complied with. Failure to observe this condition shall render this guarantee null and void * * *." (Emphasis supplied.)

The affidavits filed in this case make it clear that Lamb-Weston did install some equipment on some portions of the roof without prior approval by defendant. However, in a portion of an affidavit filed by Lamb-Weston, one of Lamb-Weston's engineers stated that:

"Regarding the subsequent conditions referred to in this motion (for summary judgment), Lamb-Weston replaced fans and installed small equipment over the manufacturing area on the (roof of the) plant. Snyder was informed of this. Where openings were required, Snyder Roofing Co, did the work and was paid extra. Furthermore, the leaking problem was not in the manufacturing area. Snyder Roofing Co., is well aware of this."

We think there remain questions not resolved on this record as to whether there was, in fact, a violation of the condition subsequent; the extent of any such violations; and the materiality of any such violation. Summary judgment is not available to defendants on this final ground.

For the foregoing reasons, the summary judgment granted by the trial court is reversed and the cause is remanded for trial.

Reversed and remanded.

SCHWAB, C. J., dissents and files opinion.

SCHWAB, Chief Judge, dissenting.

In my judgment ORS 12.135(1) bars plaintiffs' cause of action regardless of whether it sounds in tort or in contract. ORS 12.135(1) provides:

"An action to recover damages for injuries to a person or to property arising from another person having performed the construction, alteration or repair of any improvement to real property or the supervision or inspection thereof, or from such other person having furnished the design, planning, surveying, architectural or engineering services for such improvement, shall be commenced within two years from the date of engineering services for such improvement, shall be commenced within two years from the date of such injury to the person or property; provided that such action shall be commenced within 10 years from substantial completion of such construction, alteration or repair of the improvement to real property."

The majority, in holding that ORS 12.135(1) applies only to tort actions, relies on our opinion in Portland Hous. Auth. v. Ash. Nat'l, 36 Or.App. 391, 584 P.2d 776 (1978). There we construed ORS 12.135(1) as applying only to tort actions arising out of performance of services in connection with improvements to real property, and we concluded that contract actions arising out of such services are governed by the general statute of limitations...

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  • Securities-Intermountain, Inc. v. Sunset Fuel Co.
    • United States
    • Oregon Supreme Court
    • June 3, 1980
    ...have been wrong and that ORS 12.135 should properly govern actions on contract as well as tort theories. Amfac Foods v. Fred A. Snyder Roof, Inc., 43 Or.App. 107, 602 P.2d 321 (1979). The problems of the statute's intended coverage cannot be wholly resolved by an examination of its text. Ce......
  • Association of Unit Owners of Inn at Otter Crest v. Far West Federal Bank
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    • Oregon Court of Appeals
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    ...complaint is that the defendant failed to abide by a contractual duty, the complaint sounds in contract. Amfac Foods v. Fred Snyder Roof, Inc., 43 Or.App. 107, 110, 602 P.2d 321 (1979), rev. den. 289 Or. 209 The statute of limitations for contract claims is six years. ORS 12.080(1). The cau......

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