I dissent. It will be assumed for the purposes of this opinion, without deciding, that the complaint as amended alleged an oral agreement by defendant warranting that if plaintiff purchased certain carpeting from Jack Freeman, its quality, the manner in which it would be assembled and installed would cause it to last for a period of from six to eight years following its installation; that such agreement was made in May, 1943; that in September, 1943, the carpeting, pursuant to such agreement, was installed in plaintiff’s place of business; and that since January, 1944, the carpeting has been unfit for use by plaintiff.
The present action was commenced December 13, 1945. Defendant filed a demurrer on the ground, among others, that the purported cause of action was barred by the statute of limitations. (Code Civ. Proc., § 339, subd. 1.) This demurrer was sustained without leave to amend.
*762This is the only question necessary to he determined:
Did the statute of limitations commence to run at the time of the sale of the carpeting or at the time plaintiff discovered that the carpeting was defective?
It is the general rule in this state that a cause of action for breach of a warranty of the quality of merchandise arises at the time of the sale, and the statute of limitations commences to run at that time. (Mary Pickford Co. v. Bayly Bros., Inc. (1939), 12 Cal.2d 501, 521 [86 P.2d 102]; Lattin v. Gillette (1892), 95 Cal. 317, 319 [30 P. 545, 29 Am.St.Rep. 115].) Our Supreme Court in Mary Pickford Co. v. Bayly Bros., Inc., supra, page 521, thus states the rule: ‘‘ The allegations of the first and fourth cause of action in the present case present facts showing a sale of securities upon an implied warranty which was untrue. That warranty was broken at the time of the sale and the statute of limitations commenced to run at that time. ‘ The typical warranty, being an undertaking regarding the quality of goods at the time of their sale must, if ever broken, be broken at that time; and the statute of limitations, therefore, begins to run immediately. ’ (Williston on Sales, 2d ed., vol. 1 sec. 212a, p. 411.) (See note, 75 A.L.R. 1086.) The causes of action for breach of warranty were, therefore, barred long prior to the commencement of the action. ’ ’
Applying the foregoing rule to the facts of the present case, since the agreement was not in writing, plaintiff had two years after its cause of action arose within which to file suit for breach of the alleged warranty. (Code Civ. Proc., § 339, subd. 1.) It is alleged that the carpeting was delivered in September, 1943, and the complaint was not filed in the instant case until December 13, 1945. Thus more than two years had elapsed from the time plaintiff’s cause of action arose before the present suit was commenced, therefore the alleged cause of action was barred-by the statute of limitations.
Sweet v. Watson’s Nursery (1937), 23 Cal.App.2d 379 [73 P.2d 284]; Ackerman v. A. Levy & J. Zentner Co. (1935), 7 Cal.App.2d 23 [45 P.2d 386]; and Firth v. Richter (1920), 49 Cal.App. 545 [196 P. 277]* are exceptions to the general rule above stated and hold that in the case of a warranty with respect to seeds, fruit trees and nursery stock, a cause of action for breach of warranty as to their productivity does not arise until the seeds, fruit trees or nursery stock fail to comply *763with the terms of the warranty. Clearly, the instant case does not fall within this exception bnt within the general rule above stated.
In my view the majority opinion fails to recognize that there is a distinction between the time that a cause of action arises and the proof necessary to establish such cause of action. Decisions from other states cited in the majority opinion are, of course, inapplicable in view of the contrary decisions of our Supreme Court. I am therefore of the opinion that the judgment should be affirmed.
Respondent’s petition for a hearing by the Supreme Court was denied May 22, 1947. Edmonds, J., and Spence, J., voted for a hearing.