concurring in part and dissenting in part.
Perhaps I am missing something, but if so, the majority opinion does not tell me what it is. I start with the very first phrase of ORS 12.135(1): "An action to recover damages for injuries to person or to property arising from another person having performed the construction * * *.” We need go no farther— none of the causes of action seeks to recover damages for injuries to a person or to property, however caused. That statute, therefore, is not applicable.
In Portland Hous. Auth. v. Ash Nat’l, 36 Or App 391, 584 P2d 776 (1978), decided less than a year ago, we said substantially that in holding ORS 12.135(1) inapplicable to an action on an express warranty contained in a construction contract. I would adhere to that decision. Since the majority opinion does not cite that case, I am not sure whether we are to ignore it or consider it overruled sub silentio.
*301Notwithstanding the inapplicability of ORS 12.135(1), it does not follow that the majority is entirely wrong. It is not; it is only one quarter wrong. We must, as the majority reasons, determine whether the gravamen of the various causes of action is in contract or in tort. Bales for Food v. Poole, 246 Or 253, 424 P2d 892 (1967). I agree with the majority that the first cause of action against Sunset Fuel, and both causes of action against Stadsvold, sound in tort and are barred by the two year statute of limitations contained in ORS 12.110, but not under ORS 12.135(1). As to those three claims, summary judgment for defendant was proper. However, to hold them barred by the provisions of ORS 12.135(1) is to muddy already murky waters, and is wrong.
The second cause of action alleged against Sunset Fuel appears to be purely for breach of contract— failure to install an operating heating system as agreed. The prayer is for incidental damages caused by the breach. Since the claim is based upon a contract and does not claim damages for injuries to person or property, ORS 12.135(1) does not apply, and ORS 12.110 is not applicable because the gravamen of the cause is not in tort. Accordingly, the six year limitation applicable to actions on contracts (ORS 12.080(1)) is applicable, and summary judgment ought not to have been entered for defendant on this cause of action.
I would reverse as to this part of the judgment entered in the trial court.