Weeks v. Slavik Builders, Inc. ( 1970 )

384 Mich. 257 (1970) 181 N.W.2d 271

WEEKS
v.
SLAVIK BUILDERS, INC.

Docket No. 53,026.

Supreme Court of Michigan.

Decided November 27, 1970.

Erwin A. Salisbury, for plaintiffs.

Dobson, Griffin & Barense, for defendant.

PER CURIAM:

Defendant Slavik seeks review of the judgment entered below (Weeks v. Slavik Builders, Inc. [1970], 24 Mich App 621). We grant leave and order summary affirmance for reasons given below.

The express and implied warranties considered in the opinion of Division 2 were made before construction of the home defendant Slavik agreed to construct for plaintiffs. Those warranties became a contractual obligation when the Anza cement tiles thus warranted were personal property. The transformation of such tiles into realty, by incorporating them as a part of the new home, did not change or alter Slavik's obligation as co-warrantor with Anza Industries of America. That obligation became actionable upon discovery by plaintiffs of the fact of breach.

The instant action is not one for damages for injuries to property within § 5805 of the Revised Judicature Act (CLS 1961, § 600.5805 [Stat Ann 1962 Rev § 27A.5805]), or within the rule of State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1968), 381 Mich 318. No property of the plaintiffs was "damaged" by defendant Slavik at any time. Instead, defendant Slavik warranted to plaintiffs that it would install on the roof of the dwelling the specifically identified Anza cement tiles which would measure up, in roofing service, to the warranties made. Such warranties were breached as found below, giving rise to plaintiffs' cause when the breach was discovered, or reasonably should have been discovered within § 5833 of the Revised Judicature Act (CLS 1961, § 600.5833 [Stat Ann 1962 Rev § 27A.5833]).

As against defendant Slavik's claim that this action was not commenced within six years after discovery of the first leak of the roof, we find that Division 2 correctly applied the rule of Felt v. Reynolds Rotary Fruit Evaporating Company (1884), 52 Mich 602. The rule of that case was not changed or affected with advent of mentioned § 5833. Instead, § 5833 was expressly based upon the rule of Felt v. Reynolds and intended, by the new statutory language, to apply Felt's rule in favor of any victim of the breach of a warranty of quality or fitness. For verification see the committee comment appearing under § 5833 (MCLA § 600.5833 [Stat Ann 1962 Rev § 27A.5833]).

Affirmed accordingly. Costs of all courts to plaintiffs.

T.E. BRENNAN, C.J., and DETHMERS, BLACK, T.M. KAVANAGH, ADAMS, and T.G. KAVANAGH, JJ., concurred.

KELLY, J., did not sit in this case.