dissenting.
The majority opinion states,
Breach of contract remedies are available to a buyer when the seller fails to make any delivery. In contrast, breach of warranty remedies are available to a buyer who has received and accepted goods, but discovers they are defective in some manner.... [BJreach of contract damages are available for failure to perform, but not for delivery of nonconforming goods.
(citations omitted). I disagree with the bright-line distinction made between breach of contract and breach of warranty actions at the time of delivery for the following three reasons: (1) the majority’s authorities do not mandate granting summary judgment on the breach of contract claim; (2) the majority’s rule conflicts with the Uniform Commercial Code (UCC); and (3) the strict nature of the majority’s rule pushes Texas away from notice pleadings and towards form pleadings. Accord*899ingly, I respectfully dissent and would sustain appellant’s first point of error.
1. The majority’s authorities do not mandate granting summary judgment on the breach of contract claim.
The majority relies on Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576 (Tex.1991), for its holding. In Southwestern Bell, the Texas Supreme Court noted that breach of warranty remedies are available “to a buyer who has finally accepted goods, but discovers that the goods are defective in some manner.” Id. But, the court did not say the two claims are always mutually exclusive and that only warranty remedies are available after acceptance.
The Supreme Court rejected Southwestern Bell’s argument that its failure to publish a complete order “was exclusively a breach of contract” and held that there was evidence to support the jury’s breach of warranty finding. Id. at 576 (emphasis added). Nowhere in its decision did the Supreme Court say the facts could not also support a breach of contract claim. The holding clarified what is actionable under a breach of warranty theory, but does not limit breach of contract claims.
The majority also relies on Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 848 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (citing Southwestern Bell, 811 S.W.2d at 576). However, in Roy, this Court considered whether a trial court correctly refused to give a jury instruction on breach of contract. There, all the facts surrounding the transaction were fully developed at trial. Here, we review a summary judgment. Thus, the facts have not been fully developed. We should not bar the breach of contract claim if there is any post-delivery scenario under which it could be brought.
2. The majority’s holding conflicts with the UCC.
I also believe the majority’s bright-line distinction between breach of warranty and breach of contract conflicts with the UCC.1 Under the UCC, which governs the sale of goods in Texas, a buyer may seek breach of contract remedies after delivery if the person (a) timely rejects the goods, (b) timely revokes acceptance of the goods, or (c) keeps the goods, notifies the buyer of the problem, and sues for damages. Tex. Bus. & Com.Code Ann. §§ 2.711(a), 2.714(a) (Vernon 1994).
a. rejection after delivery, but before acceptance
First, the majority’s rule does not account for a situation where goods are rejected after delivery. Acceptance is generally not complete until the buyer has had a reasonable time to inspect the goods after delivery. See Tex. Bus. & Com.Code Ann. § 2.606(a)(1) (Vernon 1994). The majority’s rule, by not addressing this interim time period, wrongly suggests that delivery and acceptance will always be simultaneous.
b. revocation of acceptance after delivery
Second, the majority’s rule is at odds with the law of revocation. See Tex. Bus. & Com.Code Ann. § 2.608 (Vernon 1994). The majority applies its rule and declares, “Because Ellis’s contract claim is based on *900the receipt of defective goods, he has a breach of warranty cause of action, not a breach of contract case.” For the majority, the receipt of defective goods is an absolute bar to breach of contract remedies. However, § 2.608 specifically contemplates a situation where a buyer receives and accepts goods, only to later find a defect that was difficult to discover at the time of acceptance. Tex. Bus. & Com. Code Ann. § 2.608(a)(2) (Vernon 1994). Breach of contract damages are then available. Tex. Bus. & Com.Code Ann. § 2.711 (Vernon 1994).
c. acceptance of non-conforming goods
Finally, the present case, at this early stage, most resembles a situation in which a buyer has decided to retain non-conforming goods, but wishes to sue for damages under a breach of contract claim. The official comments to the UCC clearly state that a “buyer accepting a non-conforming tender is not penalized by the loss of any remedy otherwise open to him.” Tex. Bus. & Com.Code Ann. § 2.601 cmt. 1 (Vernon 1994) (emphasis added). After accepting non-conforming goods a buyer can still recover breach of contract damages to compensate for the effects of the nonconformity as long as notice of the breach has been timely given to the seller.2 Therefore, breach of contract damages are potentially available, even when non-conforming goods have been delivered, accepted, and retained.
3. The majority’s holding nudges us towards form pleading.
Under the majority’s holding, appellant loses his day in court by simply using the wrong choice of words. This starts us down a slippery slope that resurrects form pleadings. In Texas, plaintiffs file “notice pleadings” that plainly and concisely explain the allegations of their complaint in a short statement. Tex.R. Civ. P. 45(b). We liberally construe a plaintiffs pleading and merely require the pleadings to provide the opposing party with notice of the relief sought and sufficient information to prepare a defense. See Paramount Pipe & Sup. Co. v. Muhr, 749 S.W.2d 491, 494-95 (Tex.1988); Roark v. Allen, 633 S.W.2d 804, 809-10 (Tex.1982).
Early common law required a plaintiff to find a “form of action” that fit his complaint, and, if he chose incorrectly, the court provided no remedy. See Nelson v. Krusen, 678 S.W.2d 918, 932 (Tex.1984) (Kilgarlin, J., concurring and dissenting). Texas has never adopted the old common law forms of action. See Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 501 (Tex.1991) (Mauzy, J., dissenting); Rector v. Orange Rice Mill Co., 100 Tex. 591, 102 S.W. 402 (1907). Thus, courts should not be controlled by the form a plaintiff uses to present his complaint or cause of action, but should instead look to the substance of the plaintiffs complaint. See H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 262 (Tex.1992) (Mauzy, J., dissenting) (quoting Rector, 102 S.W. at 403). Requiring the plaintiff to plead more specifically would return us to the early common law forms of action and result in the denial of relief on meritorious complaints merely because plaintiffs chose the wrong phrase. See id. at 260.
*901For these three reasons, I respectfully dissent. I would sustain the first point of error, reverse the judgment, and remand the cause so that appellant could have his day in court on the breach of contract claim.
. The majority criticizes the fact I address rejection and revocation when the circumstances of this case may not raise those issues. However, the majority's broad rule could be applied to all breach of contract actions, in-eluding those that do involve rejection or revocation. It is, therefore, appropriate to point out any conflicts between their rule and the UCC.
. “Where the buyer has accepted goods and given notification ... he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.” Tex. Bus. & Com.Code Ann. § 2.714(a) (Vernon 1994). The comments make it clear that this section is intended to apply to both breach of warranty and breach of contract by stating, "The 'nonconformity' referred to in subsection [a] includes not only breaches of warranties but also any failure of the seller to perform according to his obligation under the contract." Tex. Bus. & Com.Code Ann. § 2.714 cmt. 2 (Vernon 1994) (emphasis added).