Buck v. Acme Brick Co.

OPINION McNICHOLAS, Justice. This is an appeal from the trial court’s granting of appellee’s motion for summary judgment based upon the following facts, [277] as set forth by appellant and agreed to by appellee: “On March 7, 1977, John Gardner, general contractor, entered into a contract for the construction of a house for Appellants. Thereafter in May, 1977, pursuant to an oral agreement with the contractor Appellee delivered brick on two occasions to Appellants’ property. Appellee gave notice to Appellants and filed its lien affidavit within the time limit provided by law. The contractor did not pay Ap-pellee for the brick. On August ¾8, 1980, Appellee filed suit against contractor and Appellants for the debt and for foreclosure of the lien on Appellants[’] property. Appellants affirmatively plead that the action was barred by the two-year statute of limitations. “The Trial Court upon Appellee’s motion granted summary judgment to Ap-pellee for the amount of the debt, foreclosure of its lien and order of sale, from which judgment Appellants bring this appeal.” The sole questions is whether or not the materialman’s lien is barred by the two-year statute of limitations set forth in TEX.REV. CIV.STATANN. art. 5526 (Vernon Supp.1982-1983), or whether the four-year statute of limitations controls, as set forth in TEX.BUS. & COM.CODE ANN. Section 2.725 (Tex.UCC) (Vernon 1968). It has been consistently held that any action for the breach of a contract for the sale of goods, including suits on sworn accounts, is governed by the four-year statute of limitations referred to above. Big D Service Co., Inc. v. Climatrol Industries, Inc., 523 S.W.2d 236 (Tex.1975); Smith v. Post-Tensioned Systems, Inc., 537 S.W.2d 144 (Tex.Civ.App. — Ft. Worth, 1976, no writ). We therefore hold, that Section 2.725(a) controls and the appellee’s action was timely brought. A lien, which is an encumbrance on property to secure the payment of a debt, is an incident of and inseparable from the debt. Thus, we are also of the opinion that “[sjince the cause of action for debt was not barred, neither was the cause of action to foreclose the liens.” University Savings & Loan Association v. Security Lumber Co., Inc., 423 S.W.2d 287 (Tex.1967). Garcia v. Texas Instruments, Inc., 610 S.W.2d 456 (Tex.1980) is a case brought under the Texas Uniform Commercial Code and involving the Code’s four year statute of limitations, Section 2.725(a). Though Garcia involved an implied warranty action for personal injuries and the present case involves the breach of an oral contract, they are both governed in their entirety by the Uniform Commercial Code. Therefore we are persuaded that Garcia is also persuasive for the proposition that privity of contract is not required under TEX.BUS. & COM.CODE ANN., Section 2.725(a) (Tex. UCC) (Vernon 1968), contrary to appellants’ contention. Accordingly, appellants point of error is overruled and the judgment of the trial court is AFFIRMED.