Safeway Stores, Inc. v. Certainteed Corp.

ROBERTSON, Justice,

concurring.

I concur in the result reached by the majority.

This case involves the alleged breach of express and implied warranties in the construction of a warehouse roof. In 1970 Safeway Stores contracted for the construction of a warehouse, which was completed that same year. The original plans and specifications called for a “twenty-year bonded type built up roof.” Safeway purchased roofing materials manufactured by Certainteed Corporation. In March of 1977, Safeway began to observe leaks in the roof. By 1979 they were severe. Safeway filed this action in 1980 against Cer-tainteed and others alleging breach of implied and express warranties.

The court of appeals held that any implied warranties were barred by the four year statute of limitations. Safeway contends the statute should not begin to run until breach of the implied warranty was discovered. The Tex.Bus. & Com. Code Ann. § 2.725 (Tex.U.C.C.) (Vernon 1968) provides:

(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.

The language of this statute clearly precludes the application of the discovery rule except in situations where there is an explicit reference to future performance. The court of appeals went on to say that “an implied warranty by its very nature cannot explicitly extend to future performance. Clark v. DeLaval Separator Corp., 639 F.2d 1320 (5th Cir.1981); Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889 (Tex.App.—El Paso 1983, no writ).” 687 S.W.2d at 224. Although the cases cited do agree with the court of appeals’ statement, they offer no analysis as to the nature of an implied warranty that requires this result. The majority points out that “explicit” and “implied” are contradictory terms. This distinction is nonsequitur. The denotation “implied warranty” does not mean that what was warranted was expressed indirectly in the colloquial sense of the term “implied,” but that the warranty is created by implication of law. The U.C.C. infers that a warranty was intended; not that parties said one thing but implied another and therefore there can be no explicit statements. Additionally, in section 2.725, “explicitly” is an adverb modifying “extends;” it does not and cannot modify the noun “warranty.” Under section 2.725 the extension to future performance, not the warranty, must be explicit, whether the warranty arises expressly or by implication.

Analysis of the nature of most implied warranties finds the general rule to be true that implied warranties by their nature cannot explicitly extend to future performance. Many implied warranties arise without explicit statements or standards relevant to the goods, however nothing precludes an explicit extension to future performance by all implied warranties.

There are three types of implied warranties: merchantability, usage of trade, and fitness for a particular purpose. See Tex. Bus. & Com.Code Ann. §§ 2.314-15 (Tex.U. C.C.) (Vernon 1968). A warranty of fitness for a particular purpose would arise if Cer-*550tainteed had reason to know that the materials contracted for had to last a particular length of time and that Safeway was relying on Certainteed’s skill to furnish goods that would last for twenty years. Id. § 2.315. This warranty does not rely on any advertisement by Certainteed. Cer-tainteed was aware of the contract provisions between Safeway and the contractor which called for a four-ply twenty-year roof. Safeway not only relied on Certain-teed, Safeway had to be convinced that Certainteed’s two-ply roof would fit Safeway’s needs and work just as well.

The majority holds an extension to future performance is explicit when the seller says, “These goods will last twenty years,” but not when the buyer asks, “I need goods that will last twenty years, can you supply them?” The drafters of the Code did indeed intend to reserve the benefits of an extended warranty to those who bargained for them. See Raymond-Dravo-Langerfelder v. Microdot, Inc., 425 F.Supp. 614, 618 (D.Del.1976). The majority finds the warranty is bargained for in the first situation but not in the second. There is no policy or authority for making that distinction.

For goods to be merchantable, they must “pass without objection in the trade under the contract description_” Tex.Bus. & Com.Code Ann. § 2.314(b)(1) (Tex.U.C.C.) (Vemon 1968). There is a fact issue whether the materials for a twenty-year bondable roof must be able to last twenty years to pass without objection in the trade and if other implied warranties may arise from the usage of trade. Id. § 2.314(c). The majority construes that by doing so we would be contrary to the precedent of other jurisdictions on this question. With the exception of those cases which simply hold all implied warranties by their nature never extend to future performance and then cite each other, I agree with those cases which found the nature of the specific warranty before those courts did not allow an explicit extension to future performance. See, e.g., Wilson v. Massey Ferguson, Inc., 21 Ill.App.3d 867, 315 N.E.2d 580 (1974); Wright v. Cutler-Hammer, Inc., 358 So.2d 444 (Ala.1978); Everhart v. Rich’s, Inc., 128 Ga.App. 319, 196 S.E.2d 475 (1973). This conclusion tracks the language of the statute and permits the limited exception where the facts allow. Certainly the burden of proving that there was a twenty year duration standard would be great. In most warranty of merchantability or usage of trade cases, the implied warranty will not explicitly extend to future performance because there are no explicit standards. This is a question of fact and should be determined by the jury. See U.C.C. Comment 2 § 2.315.

A final point on implied warranties; the majority argues that all implied warranties warrant the condition of the goods at the time of delivery. This position is without merit and denies the plain language of the statute. See Tex.Bus. & Com.Code § 2.315 (Tex.U.C.C.) (Vernon 1968). A warranty of fitness for a particular purpose warrants that a good will fulfill the needs of the buyer of which the seller was aware. This court now holds that the need can never be to last a certain length of time over four years.

Safeway contends that Certainteed made an express warranty that the roofing materials would last for twenty years by advertising that it was “bondable up to twenty years.” I agree with the court of appeals that this language is unambiguous. The express warranty Certainteed made was that the materials were of such a quality that a twenty-year bond could have been obtained at the time the goods were tendered. Contrary to the statement by the majority, the court of appeals did not find that the express warranty was barred by the statute of limitations, but held that there was no evidence of a breach of the express warranty. As there was no evidence, the trial court’s instructed verdict was correct as a matter of law.

The majority holds that the description of the goods that they were of such quality that a twenty-year bond could have been obtained creates an inference that they would last twenty years. The conclusion *551there is no evidence that the express warranty meant only that a bond could be obtained ignores the language of Certain-teed’s warranty. To remand this case the court must find the language of the express warranty made by Certainteed to be ambiguous — it does not so hold. I would remand to the trial court for the jury to determine if the implied warranties explicitly extended to future performance.