Opinion
89-00047-CV; CA A63183
Argued and submitted October 22, 1990,
Reversed and remanded February 6, 1991
Appeal from Circuit Court, Klamath County, Ted Abram, Judge.
William H. Ferguson, Medford, argued the cause for appellants. With him on the briefs was Sandra Sawyer, Medford.
George W. Kelley, Eugene, argued the cause and filed the brief for respondent.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reversed and remanded.
Plaintiffs contracted with defendant to provide cement for a contract that plaintiffs had with the United States Forest Service to pour a foundation. After the Forest Service rejected the cement, plaintiffs filed a complaint against defendant, claiming breach of contract. Defendant answered, asserting the affirmative defense of the Statute of Limitations. ORCP 19B. He moved for summary judgment on the ground that the four-year limitation in the Uniform Commercial Code had run. ORS 72.7250. Before a ruling on that motion, plaintiffs filed an amended complaint, in which they also asserted that defendant had agreed to indemnify them if the Forest Service rejected the cement. Defendant again answered and generally asserted the Statute of Limitations. The trial court then granted defendant's motion for summary judgment on the basis of the four-year limitation in the UCC.
The trial court considered the wrong complaint when it granted the summary judgment. The amended complaint pleads a contract to indemnify, to which the four-year limitation in the UCC does not apply, ORS 72.1020; that claim was not the subject of the motion.
Reversed and remanded.