Zahler v. Star Steel Supply Co., Docket No. 14819
| Citation | 213 N.W.2d 269,50 Mich.App. 386 |
| Decision Date | 01 November 1973 |
| Docket Number | No. 1,Docket No. 14819,1 |
| Parties | , 68 A.L.R.3d 1271, 13 UCC Rep.Serv. 1043 Abraham ZAHLER and Harry F. Zahler, copartners, d/b/a Val Rae Apartments, Plaintiffs-Appellants, v. STAR STEEL SUPPLY COMPANY, a Michigan corporation, and Luxaire, Inc., a Delaware corporation, Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
John Katsoulos, Katsoulos & Gillis, Huntington Woods, for plaintiffs-appellants.
Edward F. Biretta, East Detroit, for Star.
W. A. Steiner, Jr., Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, for Luxaire.
Before V. J. BRENNAN, P.J., and DANHOF and BASHARA, JJ.
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 3 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 10 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:
'(4) This section does not alter the law on tolling of the statute of limitations * * *.' (M.C.L.A. § 440.2725; M.S.A. § 19.2725.)
Plaintiffs first assert that the statute of limitations was tolled during the period defendants attempted to repair the units. M.C.L.A. § 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 (1962); Thalrose v. General Motors, 343 N.Y.S.2d 303 (N.Y.S.Ct.1971); Bobo v. Page Engineering Co., 285 F.Supp. 664 (W.D.Pa., 1967), aff'd, 395 F.2d 991 (C.A. 3, 1968); Binkley Co. v. Teledyne Mid-America Corp., 333 F.Supp. 1183 (E.D.Mo., 1971). See Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 12 Cal.Rptr. 257, 260 P.2d 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 M.C.L.A. § 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 4-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, 39 Mich.App. 360, 197 N.W.2d 465 (1972). However, the prior action being barred, the subsequent suit is also barred.
Affirmed. Costs to defendants.
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 warranty against defective materials or workmanship.
Approximately 3 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 10 more units.
Plaintiffs commenced a cause of 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:
'(4) This section does not alter the law on tolling of the statute of limitations * * *.' (M.C.L.A. § 440.2725; M.S.A. § 19.2725.)
Plaintiffs' complaint is essentially an action for damages for breach of a warranty of fitness. The long-standing Michigan rule, that the accrual of a cause of action for breach of warranty...
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