On appeal from Superior Court, Law Division, Middlesex County.
Allcorn, Kole and Pressler. The opinion of the court was delivered by Kole, J.A.D.
On August 3, 1979 plaintiff municipality filed a complaint alleging that it had purchased a new fire truck from defendant on November 24, 1974, that defendant warranted that the paint job was in good condition and that the warranty was breached. It sought damages for the money plaintiff would have to expend to have the truck repainted. Defendant claimed that the breach of warranty was barred by the four-year statute of limitations under N.J.S.A. 12A:2-725*fn1 and moved for summary judgment on that ground. The summary judgment motion was granted.
The judge determined that the four-year statute of limitations commenced to run no later than January 8, 1975, at which time plaintiff had clearly accepted the truck and the paint job either conformed with or violated the warranty; that there was no guaranty of future performance which would have postponed the limitations period, and that there was no showing of acts by defendant that could estop it from asserting the statute of limitations. He thus held that since the four-year limitation
period had expired on January 8, 1979, plaintiff's claim for breach of warranty, filed August 3, 1979, was barred. Plaintiff appeals.
The facts as revealed by the record on the summary judgment motion were to the following effect.
Defendant was the successful bidder in connection with the sale to plaintiff of the fire truck. It delivered the truck to plaintiff in September or November 1974. Almost immediately plaintiff realized that the paint job on the truck was defective and notified defendant of this condition. Defendant then arranged for corrective paint work to be done by an independent contractor. This work was accomplished by November 15, 1974 at a cost of $3,033.60 to defendant.
On November 20, 1974 plaintiff signed a "conditional acceptance" for the truck "pending shortages and adjustments." Plaintiff informed defendant by letter of September 10, 1975 that "all shortages and discrepancies were completed by [defendant] on Wednesday, January 8, 1975 and the vehicle was put into service on that date." Plaintiff stated that the purpose of the letter was "[t]o make sure we are in agreement on the date from which [defendant's] warranty was to begin."
By letter dated August 6, 1975 to defendant, plaintiff requested that a date be set to have several defects corrected, which were claimed to be covered by the warranty and the bid proposal. One of the defects was said to be that "[p]aint is rusting in certain places." Defendant responded by letter of August 11, 1975 that its Mr. Byrnes would "be in contact with you to discuss arrangements for correcting the difficulties mentioned in your letter." The letter also stated that the warranty "covers parts only during the warranty period." There is no indication in the record that defendant thereafter attempted to correct the paint defects.
By letter of October 22, 1975 plaintiff requested defendant to "acknowledge that your records show January 8, 1975 as the date for the beginning of the warranty period." Plaintiff stated
that it wished to "make sure" that it and defendant "are in agreement on the in service date of the warranty period," which "is for one . . . year and was outlined in our specifications and provided in your bid." On November 4, 1975 defendant sent an acknowledgment to plaintiff that the ...