dissenting.
I withdraw my former dissenting opinion of October 2, 1984, and the following is now my dissenting opinion.
I respectfully dissent regarding the disposition of the majority as to the claim of Safeway against Certainteed and concur with the holdings as to the claims against the other appellees, and would reverse and remand for a new trial.
In its first point of error, Safeway contends that the court erred in granting an instructed verdict — based on limitations — in favor of Certainteed because the evidence raised fact issues for the jury. The statute of limitations applicable to Safeway's cause of action against Certainteed is governed by TEX.BUS. & COM.CODE § 2.725 (Vernon 1968). I quote § 2.725 in pertinent part:
(a) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued....
(b) 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.
In passing on Safeway’s first point of error, the evidence must be viewed in the light most favorable to Safeway and discard all contrary evidence and inferences. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976). In its pleadings, Safeway alleged that Certainteed had breached implied warranties of merchantability and fitness. Safeway also alleged that Certainteed had made a representation that the roof was leak-free and adequate roofing for twenty years and that Safeway discovered the falsity of this representation in 1979.
As to any express warranty, if it explicitly extended to future performance of the goods, then the discovery rule would apply, and limitations would not have begun to run until the breach was or should have been discovered. Safeway introduced advertisements by Certainteed containing the language “bondable up to 20 years.” Although Safeway pled the “twenty year” language as constituting an implied representation, nevertheless, the facts pled and the evidence presented established that Safeway relied on an express warranty, if anything. The court must look to the facts pled, Dixon v. Alford, 333 S.W.2d 470, 471 (Tex.Civ.App. — Amarillo 1960, no writ), and apply the proper rule of law. Lyon Van Lines, Inc. v. Ogden, 503 S.W.2d 632, 636 (Tex.Civ.App. — Houston [1st Dist.] 1973, no *27writ). Safeway’s pleadings should be liberally construed in its favor, in absence of any special exceptions. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). The petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases its claim. Roark, 633 S.W.2d at 810. Moreover, Certainteed was not misled by Safeway’s characterization, as described in its brief, of the “bondable up to twenty years” language as an implied warranty. See Moore v. Puget Sound Plywood, Inc., 214 Neb. 14, 332 N.W.2d 212, 215 (1983).
I note that, on its face, this language extends to future performance. “Up to twenty years” means that the roof was bondable from a minimum of one year up to a maximum of twenty years depending on when the bond was purchased. Hence it is a warranty explicitly extending into the future. I would hold that this representation is an express warranty which explicitly extends to future performance as a matter of law, and meets the requirements of TEX.BUS. & COM.CODE § 2.725(b) (Vernon 1968). Further, the evidence at least raised fact issues for the jury to decide as to whether the roof was “bondable up to twenty years,” and as to when Safeway discovered any breach of this express warranty for purposes of the triggering of the period of limitations. Accordingly, I would reverse and remand for a determination by a jury of these issues.
I concur with the majority’s treatment of Safeway’s points of error dealing with Smith, Gunn & Briggs, and Home. Thus, I would reverse and remand as to Smith, Gunn & Briggs, Home, and Certainteed.
Because I would reverse as to Smith, I would reverse as to Home which rises or falls with Smith.