In Mаrch, 1983, appellant, Homer DeGroft, filed suit in the Circuit Court for Carroll County against appellee, the Lancaster Silo Co., Inc., asserting causes of action for (Count 1) breach in 1975 of a written contract to construct a silo on his property; (Count 2) negligence in constructing the silo and preparing its footings; and (Count 3) breach of a subsequent oral contract to build a new silo after it became necessary to tear down the original one because it was unsafe.
Appellee moved for summary judgment as to all counts and, in September 1986, the court granted that motion. The court determined that the Uniform Commercial Code (UCC), Title 2 of the Md. Commercial Law Code Annotated, was applicable to the breach of contract claims because a sale of goods was involved. The first count was held to be barred because it was not filed within four years of the occurrence of the breach of the contract, as required by § 2-725 of the UCC; recovery under the third count was deemed to be unavailable because the oral agreement constituted a modification to the original contract for the sale of goods and, as such, was required by § 2-209 of the UCC to be in writing. Finally, the court determined appellee was entitled to judg *159 ment as a matter of law as to the second count because the only injury appellant alleged he sustained as a result of appellee’s negligence was economic and an action for pure commercial or economic loss resulting from negligence in performing a contract will not lie.
We agree with appellant that the court erred in granting summary judgment against him as to the first and third counts. We shall not address the question of the propriety of the grant of summary judgment on the second count (negligence) for the simple reason that appellant did not present or argue the issue in his brief. Rule 1046 f providеs that “This Court may decline to
hear or consider
oral argument on any legal proposition or question of fact not presented in the briefs.” (Emphasis added.) In
Pride Mark Realty, Inc. v. Mullins,
Summary Judgment—Standard for Granting
A grant of summary judgment is appropriate only where a two-fold test is met. The movant for summary judgment must clearly demonstratе the absence of any genuine issue of material fact and must also demonstrate that he is entitled to judgment as a matter of law. Md.Rule 2-501(a).
See also Dietz v. Moore,
At a hearing on a motion for summary judgment, the function of the judge is “much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict ... require him to determine whether an issue requires resolution by a jury, or is to be decidеd by the court as a matter of law.”
Vanhook, supra,
Facts
The facts, viewed in the light most favorable to appellant, are as follows:
On June 5,1975, the parties executed a one page, two-sided printed form contract labeled “Silo Construction Order.” On the front of the form, the parties are referred to as *161 Lancaster Silo Co., Inc. and “landowner.” Appellee was “authorized to construct a standard Lancaster silo” 30 feet by 80 feet in size on appellant’s farm. Several of various boxes were checked off to indicate the “standard Lancaster silo accessories” with which the silo was “to be equipped,” among them a distributor, chute, ladder and 31 redwood hinged doors. The silo was to be “delivered anytime” and “erected as soon as the [silo’s] footing is in.” The contract further specified that the “landowner agrees to pay [appellee] for such construction” a “total” of $17,256.00. No allocation between the cost of labor and materials is included. Spaces were prоvided to list the cost of the silo and other “items,” but they were left blank.
The parties’ signatures appeared at the bottom of the front side of the form, beneath a paragraph indicating the agreement constituted their “full and entire contract.”
The other side of the form contract is headed “General Provisions.” In several numbered paragraphs the parties are referred to as “Buyer” and “Seller.” Paragraph 6 states in part that the “Seller assures the Buyer that the silo will be built within the average field practices of the National Silo Association and stands behind the materials and workmanship of the silo and assoсiated equipment manufactured by [appellee] or its manufacturing agents.”
Other paragraphs refer to the “construction” or “erection” of the silo {e.g., Buyer’s responsibility for “any unsafe condition on the construction site”) and “materials” or “goods” {e.g., “any sales tax upon the sale of goods ... shall be paid by the Buyer”).
Attached to the contract, which was filed with the complaint as appellant’s “Exhibit A,” was a May 21, 1975, document prepared by W. Roger Roop on “Patz Material Handling Equipment” stationery entitled, “Estimate for Homer DeGroft.” The cover page of that document contained the following:
*162 Estimate for Homer DeGroft
30 ft. by 80 ft. silo with aluminized steel rоof, silo ladder, fill platform, multi flo silage spreader & 9 inch galvanized fill pile $18,000.00
70 ft. stave chute @ $2.00 extra per ft.............................. 140.00
31-hinged redwood doors @ $5.00 each .............................. 155.00
60 ft. safety cage @ $3.25 per ft....................................... 195.00
Freight ............................................................................ 350.00
Room & Board ................................................................. 280.00
$19,120.00
5% discount, early order.................................................... 956.00
$18,164.00
5% discount with $15,000.00 with order .............................. 908.00
$17,256.00
If you furnish two men for ground crew deduct $380.00. If you also furnish room & board deduct $280.00.
I come & lay out the lines for the footing, you dig the trench for footer. You furnish concrete for footer. Call me at the time concrete will be delivered and I will come and level it and smooth it. About 22 yds. of cement will be needed.
The rest of the May 21 document is immaterial; it merely referred to items of equipment not purchased by appellant. Also attached as a part of “Exhibit A” was an invoice listing at $17,256.00 the price of “30x80 Silo, Pipe and Dist.”
Roop, allegedly an agent of appellee, did subsequently advise appellant on the size and type of footing needed for the silo, the amount of concrete required, and the pouring of the concrete. Additionally, he supervised the installation of the footing and leveled and smoothed the concrete. Appellee then erected the silo in the fall of 1975.
A few days after the silo was built, appellant noticed that several of the silo’s hoops had ruptured. Appellee promptly, and to appellant’s satisfaction, made repairs to the hoops.
Sometime in 1977, аppellant’s neighbors mentioned to him that the silo appeared to be off-center and “wasn’t standing true.”
*163 During the next three or four years appellant contacted appellee’s representatives on several occasions regarding the leaning of the silo. Representatives of appellee made several trips to view the silo. They assured appellant that there was nothing wrong with the silo and that it was sound. They further stated that “they would continue to watch it.”
In late 1981 or early 1982, the leaning became more pronounced. An agent of appellee who observed the silo in August, 1982, noted that it was leaning dangerously. He orally promised appellant that Lancaster would build a new silo without cost to appellant if appellant would empty the existing silo and arrange to make a crane available to take the silo down. Appellee was to supervise the tearing down of the silo. Appellant, in reliance on this representation, emptied the silo. Appellee later refused to reconstruct the silo, alleging that its employee had only promised to repair the silo and that a windstorm which occurred that same month made it unsafe to attempt to repair the silo. The silo was ultimatеly dismantled by appellant under the supervision of appellee’s employees. After the silo was taken down, appellant was able to see cracks in the concrete footing and observe that the silo had not been properly centered on the footing. Appellant claimed that he suffered damages in the amount of $75,000.
Additional facts relevant to the legal issues presented herein will be incorporated below.
The Written Contract
The initial question presented is whether the trial court erred in ruling that the Uniform Commercial Code was applicable to appellant’s claim for breach of the 1975 written cоntract. If the UCC governs, appellant’s claim would be barred under § 2-725(1), which requires that an action for “breach of any contract for sale must be commenced within four years after the cause of action has accrued.” Section 2-725(2) provides that “[a] cause of action accrues when the breach occurs, regardless of the aggrieved party’s *164 lack of knowledge of the breach.” 1 In the instant case, any breach of the written contract had to have occurred in 1975, some eight years before the action was filed.
On the other hand, if the UCC is inapplicable, the three-year statute of limitations in § 5-101 of the Md. Courts and Judicial Proceedings Code Annotated would govern. Whether appellant’s claim for breach of the 1975 contract would be barred by § 5-101 would then depend on when appellant had sufficient knowledge of the wrong to trigger the running of the statute under the “discovery rule" announced in
Poffenberger v. Risser,
Section 2-102 of the UCC provides that “[u]nless the context otherwise requires,” the UCC applies to “transactions in goods,” a term which has been said to be broader than the sale of goods.
Burton v. Artery Co., Inc.,
In the absence of an explicit agreement, “identification” of goods occurs “when the contract is made if it is for sale of goods already existing and identified.” § 2-501(l)(a). If the contract is for the sale of future goods, that is, goods which are not both existing and identified, § 2-105(2), identification occurs when the “goods are shipped, marked or otherwise designated by the seller as goods to which the contract refers.” § 2-501(l)(b).
*165
The UCC does not apply to service contracts or to materials used or supplied in connection with the performance of such contracts.
Burton, supra,
Between the contract for the sale of goods and the service contract is the “hybrid” or mixed sales and service contract. The test to determine whether the UCC applies to mixed sales and service contracts
is not whether they are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).
Burton,
In its memorandum in support of its motion for summary judgment, appellee contended that the UCC was applicable because the 1975 contract was one to “purchase a silo.” The itеms or accessories for the silo, it contended, were “movable at the time of identification which occurs before the equipment is installed.” It also urged the silo proper was “identified long before its installation in the fall of 1975, and, therefore, was movable at the time of the contract for its purchase and at the time of identification.”
In later pleadings, appellee contended that the silo was “completely pre-fabricated and all parts readily identifiable from what Lancaster Silo sold as a ‘kit.’ ” The “pre-fabricated parts were identifiable as a silo before construction as well as after construction,” it asserted.
In opposing the motion, appellant contended that the UCC was inapplicable in that a “service” contract for “construction” was clearly involved. Moreover, appellant argued, the *166 silo did not fall within the statutory definition for “goods” because it did not come into existence until fully constructed.
In granting summary judgment, the trial court found that the parties’ contract was a mixed sales and service contract, but did not specify which of the materials provided in connection with the contract were goods and at what point they could be considered to have been idеntified. The court also accepted appellee’s characterization of the transaction involving the silo as the “sale of a kit” with the construction incidentally involved.
We note initially that it was error, on either of two grounds, for the court to base summary judgment in any part on appellee’s averments in unverified pleadings that it sold appellant a silo “kit” or to assume the truth of appellee’s assertions that the component parts and accessories were movable, existing and identified at the time of execution of the contract.
Under Md. Rule 2-501, whenever a motion for summary judgment is based on faсts not contained in the record or papers on file it must be supported by an affidavit properly executed in accordance with Rule 2-501(c). See P. Niemeyer & L. Richards, Maryland Rules Commentary, Rule 2-501 (1984). See also Md. Rule 2-311(d). At the time of appellee’s motion, none of the materials of record indicated the silo was sold as a kit or that it was comprised of pre-fabricated components which were movable and identified at the time of the contract.
Appellee, therefore, was required to submit an affidavit attesting to those facts but failed to do so. If the court did not properly have before it the facts necessary to determine whether and when any of the subject matter of the contract could be considered “goods,” it could hardly determine, as a matter of law, that the UCC was applicable to the 1975 contract.
Moreover, appellant disputed the assertion that a “kit” was sold; in his pleadings he noted that it would be *167 “absurd to say that Lancaster sold staves and hoops to [him] and just merely put them up as an afterthought.” In that respect alone, there was a genuine dispute as to a material fact precluding summary judgment.
Even if the contract were, as contended by appellee, one for the sale of a silo “kit” to be assembled by the vendor,
2
summary judgment would havе been inappropriate because, in such case, the 1975 contract would have been a “hybrid” contract involving goods and services. Applicability of the UCC, then, would hinge on the main purpose or primary thrust of the parties’ agreement.
See Chlan v. KDI Sylvan Pools, Inc.,
There is a relative paucity of law in Maryland involving application of the “predominant purpose” test.
See e.g. Burton, supra,
Courts have generally looked principally to the language of the parties’ agreement and the circumstances surrounding its making in determining the predominant thrust of the of the transaction.
Coakley & Williams, Inc. v. Shatterproof Glass Corporation,
In analyzing the parties’ agreement, it is appropriate to look to the terminology used therein to determine whether it is peculiar to sales or service contracts.
See e.g., Bonebrake, supra,
The courts also consider it significant whether the parties’ agreement specifies any allocation between the costs of materials and services and the relative costs of the goods to the total contract price.
Aluminum Company of America
*169
v. Electric Flo Corporation,
It is pellucid that when the facts presented below and the inferences deducible therefrom are considered in the light most favorable to appellant, a factfinder could reasonably conclude that the contract between appellant and appellee predominantly concerned the rendition of services.
Pursuant to the contract proper, appellee was authorized to “construct” a silo, and repeated references to its “construction” or “erection” are containеd therein. The contract does not refer to the “sale” or “purchase” of a silo. While the contract does mention certain “accessories” with which the silo was to be “equipped,” it does not refer to the principal subject of the contract—-the silo—as equipment, nor does it specify the component parts of the silo itself.
*170 Neither the contract nor the exhibited estimate or invoice indicate how much of the “total” contract price of $17,256 represented the cost of labor versus materials. Finally, the exclusive thrust of appellant’s claim against appellee respects the improper rendition of construction services.
There are, on the other hand, certain aspects of the parties’ agreement which would tend to place it on the “goods” side. The contract contains some provisions peculiar to “goods” transactions in that it refers, at times, to the parties as “Buyer” and “Seller” and contains a warranty respecting defects in the materials and workmanship of the silo.
At first glance, it would appear from the language of the contract itself that its main thrust, at least from appellant’s standpoint, was construction of a silo and not the sale of the cоmponent parts and accessories. Possibly, in appellee’s contemplation, it was for the sale of goods. It may even be that the bulk of the price was for the parts rather than the assembly. We simply cannot tell from the existing record. Furthermore, the record reveals little about the overall nature of appellee’s business and its relationship to “Patz Handling Equipment.”
Other courts have been reluctant to affirm the grant of summary judgment where a hybrid sales and service contract is involved because they view the determination of the predominant purpose of a transaction as a question of faсt.
See Prince v. Spire Corporation,
Limitations
While the trial judge erred in dismissing appellant’s action on the basis it was time-barred under the UCC, we may nevertheless affirm its decision if appellant’s action would *171 be barred under the statute of limitations governing other contract actions.
Md. Courts and Judicial Proceedings Code Annotated, § 5-101, provides that “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” In that there is no other applicable Code provision, § 5-101 governs common law contract actions.
3
Mayor and Council of Federalsburg v. Allied Contractors, Inc.,
Until
Poffenberger v. Risser,
Under the discovery rule, it is not necessary that a party have knowledge of all the details of his cause of action for that cause of action to accrue; it is enough that he have actual knowledge of facts sufficient to put an ordinarily prudent person on inquiry, thus charging him “ ‘with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.’ ”
Poffenberger, supra,
In two recent decisions, the Court of Appeals has discussed the application of the “discovery rule” in the context of motions for summary judgment. In
O’Hara v. Kovens,
From the primary facts some tribunal must deduce when the plaintiffs were on notice. That ultimate fact is ordinarily a question for the trier of facts going to the merits. “[Wjhether or not the plaintiff's failure to discover his cause of action was due to failure on his part to use due diligence, or to the fact that defendant so concealed the wrong that plaintiff was unable to discover it by the exercise of due diligence, is ordinarily a question of fact for the jury.”
Id.
at 294,
In
Baysinger v. Schmid Products Company,
The Court of Appeals disagreed with the trial court’s determination that as a matter of law the appellant had notice of her cause of action in 1979 because she then entertained some suspicions her problems might be related to the intrauterine device.
Id.
at 367,
In the case sub judice, appellee has contended appellant had actual knowledge of the alleged breach of contract in 1977 when neighbors informed him the silo was leaning. Appellee argues that appellant’s repeated calls to Lancaster Silo’s agents indicated his awareness of appellee’s responsibility for the wrong. Appellant, on the other hand, contends that, since he received repeated assurances from appellee for several years that the silo was sound, he did not have actual knowledge of the wrong committed by appellee until 1982, when he learned, after the silo was dismantled, that the concrete footing was cracked and that the silo had been improperly constructed.
We do not agree with appellee’s position. The mere fact appellant knew the silo was leaning in 1977 does not, of necessity, establish that he was aware that a wrong had occurred, nor does the fact he made calls to appellee necessarily indicate he knew appellee was responsible for that wrong. 4
*174 In his deposition, appellant had the following to say about his neighbors’ comments in 1977:
[Different neighbors would say to me, your silo, there is something wrong with it, Homer. Well, you kind of just don’t know whether you should believe them or nоt, and you look at it, and you just wonder, you know.
Although the above passage indicates appellant was uncertain anything was wrong with his silo, nevertheless, he called appellee to express “concern” about the leaning. The calls to appellee might raise an inference appellant considered appellee to be responsible for the silo’s leaning, but it is equally possible he called appellee for advice as to whether there was, in fact, anything wrong with the silo or, perhaps, merely for assurance that nothing was wrong. In his deposition, appellant said, “I called them a timе or so to tell them they better check this thing, it looks like it’s leaning.”
Appellee’s agents, the experts called upon to advise or reassure appellant, then informed appellant that nothing was wrong with the silo. Appellant, not being an expert in such matters, might well have assumed that the leaning was insignificant, within normal or acceptable limits, or due to some cause other than fault on the part of appellee, such as ground shifting or the manner of silage storage.
The facts indicate nothing whatsoever about the nature or extent of the leaning in 1977, i.e., whether it was significant or slight, whether obvious or only perceptible from a distance. Nor does the record reveal whether the leaning grew gradually and progressively more severe until *175 1982, when it concededly leaned drastically, or whether it remained fairly stable and then suddenly and dramatically shifted in 1982. We must assume the latter because the facts and the inferences drawable therefrom are to be viewed in the light most favorable to appellant.
It may be that an ordinary and prudent person in appellant’s position would have disregarded appellee’s assurances that nothing was wrong with the silo and would have undertaken further investigation. And it may be that the nature or extent of thе leaning in 1977 or at some point thereafter was so marked that an ordinary and prudent person would have concluded that some fault on the part of appellee might have been the cause of the leaning.
But these were matters for the trier of fact to determine on a record more ample than that before the court on the summary judgment motion. As in
Baysinger, supra,
the evidence presented was simply inadequate to indicate that in 1977 appellant
“then
suspected, or reasonably should have suspected
wrongdoing
on the part of anyone,”
The Oral Promise to Build a New Silo
Because wе have already decided that the circuit court erred in ruling that the UCC was applicable as a matter of law to appellant’s 1975 contract claim, it follows that it was error to bar his claim for breach of the 1982 oral promise to build a new silo on the ground that the oral promise was a modification of a contract for the sale of goods and thus required by § 2-209 of the UCC to be in writing.
Nor do we accept appellee’s contention that the claim would nevertheless be unenforceable for lack of consideration. Contrary to its contention, appellant’s undertaking to empty the silo and take it down constituted legally sufficient consideration for appellee’s promise to recon
*176
struct the silo. Nor, as appellee contends, does the agreement come within the Statute of Frauds in respect to real property. Md. Real Prop.Code Ann., Title 5, §§ 5-105—5-108. The oral contract was not one for the purchase or sale of land or any interest concerning land; it was an agreement to contract a structure upon land, as to which the Statute of Frauds is inapplicable.
Bruns v. Spalding,
JUDGMENT AFFIRMED AS TO SECOND COUNT, REVERSED AS TO FIRST AND THIRD COUNTS.
COSTS TO BE PAID BY APPELLEE.
Notes
. Where a breach of warranty occurs and the “warranty explicitly extends to future performance of the goods and disсovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” § 2-725(2). Appellant has not contended appellee breached any explicit warranty extending to the future performance of goods which would extend the date of the breach’s occurrence to the date of discovery.
. Silos and similar structures have been considered "goods" under § 2-105 by several courts.
Clevenger and Wright Co. v. A.O. Smith Harvestore Products, Inc.,
. Section 5-102(a)(6) establishes a twelve year period of limitations for contracts under seal, however.
. In
Booth Glass
v.
Huntingfield Corporation,