Appeal from Circuit Court, Multnomah County. William M. Dale, Judge.
Garry L. Kahn, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison, Portland.
R. Alan Wight, Portland, argued the cause for respondent. With him on the brief were Miller, Anderson, Nash, Yerke & Wiener, Portland.
Holman, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Tongue, and Howell, Justices.
This is an appeal from the dismissal of plaintiff's complaint pursuant to his refusal to plead over when a demurrer was sustained to the complaint on the basis that the action had not been brought within the period allowed by the statute of limitations.
In his complaint plaintiff alleges that in December of 1963, pursuant to a contract of sale, he purchased a motor vehicle from defendant. He subsequently returned the vehicle to defendant, under a provision of the contract of sale, for the purpose of having it resold and the proceeds used to defray the balance thereunder with any surplus being returned to plaintiff. Defendant resold the vehicle in 1964 for more than the amount owing on the contract, but concealed the
fact from plaintiff. It was not until after October 25, 1965, that plaintiff first discovered that the vehicle had been sold for more than the balance owing on it.
Plaintiff further alleges that he previously brought an action against defendant based on the same transaction, which was treated by the trial court as one for fraud and deceit. That action was terminated May 12, 1971, by a decision of this court holding that he had failed to prove such an action. Chaney v. Fields Chevrolet Co., 258 Or 606, 484 P2d 824 (1971). Within six months thereafter, on June 28, 1971, plaintiff commenced the present proceeding.
The first matter for determination is the applicable statute of limitations. Defendant contends ORS 72.7250 (Uniform Commercial Code § 2-725) is applicable because this is an action for the breach of a contract of sale. Defendant argues that under this section, plaintiff had four years from the time the vehicle was resold in which to bring his action and that such period expired in 1968. The section provides as follows:
"(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
"(2) 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 ...