dissenting, with whom RABINOWITZ, Justice, joins.
I think the majority’s conclusion that notice of a breach cannot be given by service of a complaint is unduly harsh. Here, for example, if Isaacson had filed suit against Armco a few days after delivery, I cannot believe that it would be correct to leave Isaacson without a remedy. Filing suit without prior notice may be impolite but it is not deceptive or dishonest and it certainly is no hindrance to “normal settlement through negotiation.” Often, in fact, serious settlement negotiations do not take place until a lawsuit is filed.
There are authorities which take the view that notice can be supplied by filing a complaint.1 I think they reflect a more just and realistic view than cases to the contrary, and I would follow them. It would then be necessary to remand this case to the superior court for a determination of the timeliness of the notice given Armco by way of Isaacson’s third party complaint. Such a determination is ordinarily a question of fact to be made in light of the surrounding circumstances.2 Here, the lack of prejudice to Armco 3 and the contingent nature of Isaacson’s claim against Armco would play an important role. This question should be left to the trier of fact.
*521I also disagree with the court’s resolution of the question whether the contract between Christianson and Isaacson contained a force majeure clause. The trial judge found that there was an express agreement in their contract for a firm delivery date, which was in conflict with and therefore took precedence over the force majeure clause contained in the offer of July 16. This determination is one of fact4 and one which the trial judge made with an awareness that conflicting evidence existed. He stated:
I could see that questions of contract formation could have been resolved other than I have. Nevertheless, it seems to me that the evidence weighs more heavily in favor of finding that as to both the Christianson-Isaacson contract and the Isaacson-Armco contract time was of the essence, a firm delivery date was promised, and that firm delivery date was part of the bargain and part of the consideration for the contracts.
The trial judge’s finding on this point is not, in my view, clearly erroneous5 and therefore should be upheld.
. E. g. Pace v. Sagebrush Sales Co., 114 Ariz. 271, 560 P.2d 789, 792 (1977); Davidson v. Wee, 93 Ariz. 191, 379 P.2d 744, 749 (1963); Dowdle v. Young, 1 Ariz.App. 255, 401 P.2d 740, 742 (1965); Henderson Tire & Rubber Co. v. P. K. Wilson & Son, Inc., 235 N.Y. 489, 139 N.E. 583, 585 (1923); Silverstein v. R. H. Macy & Co., 266 A.D. 5, 40 N.Y.S.2d 916, 920 (1943).
. E. g. Eastern Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 973 (5th Cir. 1976); Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 298 (3rd Cir. 1961); 2 R. Anderson, Uniform Commercial Code § 2-607:24 (1971); 67 Am.Jur.2d Sales §§ 21,294, at 131, 434 (1973).
. See, Deveny v. Rheem Mfg. Co., 319 F.2d 124, 130 (2nd Cir. 1963); Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 298 (3rd Cir. 1961); Pettulia v. Corp Bros., Inc., 107 R.I. 599, 268 A.2d 699, 703 (1970).
. See, e. g., Alaska Placer Co. v. Lee, 553 P.2d 54, 59 (Alaska 1976).
. See note 4 supra.
Testimony of Christianson and Reynolds of Christianson Construction Company and two contemporaneous memoranda support the finding of a firm delivery date.