Beckmire v. Ristokrat Clay Products Co.

• Decision Date: 09 March 1976
• Docket Number: No. 74--316,74--316
• Citation: 343 N.E.2d 530,36 Ill.App.3d 411
• Parties: , 18 UCC Rep.Serv. 1218 L. Edward BECKMIRE, Plaintiff-Appellant, v. RISTOKRAT CLAY PRODUCTS COMPANY and Midland Brick Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 530

343 N.E.2d 530

36 Ill.App.3d 411, 18 UCC Rep.Serv. 1218

L. Edward BECKMIRE, Plaintiff-Appellant, v. RISTOKRAT CLAY PRODUCTS COMPANY and Midland Brick Company,

Defendants-Appellees.

No. 74--316.

Appellate Court of Illinois, Second District, Second Division.

March 9, 1976.

Holtan & Garrity, Freeport, for plaintiff-appellant.

Roszkowski, Paddock, McGreevy & Johnson, Karl F. Winkler, Rockford, for defendants-appellees.

RECHENMACHER, Presiding Justice:

Plaintiff, in August, 1973, sued defendant to recover for damages due to the deterioration of brick facing on his residence. The brick, manufactured by defendant Midland Brick Company ¹, was delivered for construction of the residence in 1964. Defendant moved to dismiss plaintiff's complaint alleging that plaintiff had failed to institute suit within four years of delivery of the brick as required by the Uniform Commercial Code, (Ill.Rev.Stat.1973, ch. 26, § 2--725.) Defendant's motion was granted.

On appeal, plaintiff contends that his cause of action accrued upon discovery of the fault rather than upon delivery of the brick and that even if the four year statute of limitations is applicable, it was tolled by virtue of defendant's absence from the state as provided by Section 18 of the limitations statute (Ill.Rev.Stat.1973, ch. 83, par. 19).

Plaintiff alleges that the brick was warranted under the Uniform Commercial Code's implied warranty. (Ill.Rev.Stat.1973, ch. 26, par. 2--314.) The statute of limitations for actions arising from the Uniform Commercial Code states in pertinent part:

'(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 one 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.'

(Ill.Rev.Stat.1973, ch. 26, par. 2--725.)

Here the brick was delivered in 1964. The suit was filed in August, 1973. Under the plain and unambiguous language of section 2--725 the suit was not filed in time unless the exception of section 2--725 applies. Plaintiff contends the implied warranty of sale here does explicitly extend to future performance. He argues that the nature of brick is such that a buyer can reasonably expect it to last for many years. The cause of action should not therefore accrue nor the statute of limitations run until the discovery of the defect--in this case, 1970, when the brick began to deteriorate. The law is clear, however, that for a warranty to extend beyond four years of the date of delivery of a product, said warranty must explicitly guarantee future performance of the product. (Wilson v. Massey-Ferguson, Inc., 21 Ill.App.3d 867, 870, 315 N.E.2d 580, 583 (1974). In Binkley Co. v. Teledyne Mid-America Corp., (E.D.Mo.1971), 333 F.Supp. 1183, Aff'd, 460 F.2d 276 (8th C.A.1972) 'explicit' was defined as "not implied merely, or conveyed by implication; distinctly stated; plain in language; clear; not ambiguous; express; unequivocal". The mere expectation, however reasonable, that due to the nature of a particular product the statute of limitations on the warranty beings to run upon discovery of the defect is not an adequate basis for ignoring the clear language of the statute. Even where a warranty is express, courts are reluctant to infer from its language terms of prospective operation or conditions which are not clearly stated. (Binkley Co. v. Teledyne Mid-America Corp., supra.) In the absence of an express warranty explicitly guaranteeing future performance or quality of the brick, we find no basis for circumventing the clear language of section 2--725. We find, therefore, that plaintiff's cause of action accrued and the statute of limitations began to run from the time the brick was delivered. Plaintiff next argues, however, that under the provision of section 18 (Ill.Rev.Stat.1973, ch. 83, par. 19) the statute of limitations tolled because of defendant's absence from the state. This saving clause provides in pertinent part as follows:

'If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his coming into or return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action.'

Defendant contends that because process was served under the long arm statute, (Ill.Rev.Stat.1973, ch. 110, par. 17) and such service was available to plaintiff before the statute of limitations ran, the saving clause does not toll the four year statute of limitations. We note that this is a case of first impression in Illinois to interpret the impact of the long arm statute on the saving clause as this latter statute has been amended by the legislature to provide for a situation such as is now before us. The amended saving clause, effective October 1, 1973, provides in part:

'If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his coming into or return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action. * * * For purposes of the first sentence of this Section, no person shall be considered to be out of the State or to have departed from the State, or to reside outside of the State during any period when he is subject to the jurisdiction of the courts of this State with respect to that cause of action pursuant to Sections 16 and 17 of 'Civil Practice Act'. * * * or any other statute authorizing service of process which would subject that person to the jurisdiction of the courts of this State. If a person files an action in a court of this State and attempts to secure service of process upon a...