Froedtert Grain & Malting Co. v. Steelcote Mfg. Co.
| Decision Date | 23 March 1953 |
| Docket Number | No. 6529(2).,6529(2). |
| Citation | 110 F. Supp. 757 |
| Parties | FROEDTERT GRAIN & MALTING CO., Inc. v. STEELCOTE MFG. CO. |
| Court | U.S. District Court — Eastern District of Missouri |
Moser, Marsalek, Carpenter, Cleary & Carter and G. W. Marsalek, of St. Louis, Mo., for plaintiff.
Edwards, Metcalfe & Strong and Walter L. Metcalfe, of St. Louis, Mo., for defendant.
The record in this case presents this question: Plaintiff having used defendant's paint in its malt houses under a guarantee providing a remedy in case of failure to comply with the guarantee, and sustaining such a failure, is defendant's liability under the remedy provided in the written guarantee confined solely to furnishing additional paint? Plaintiff seeks recovery of cost of paint on the guarantee, and of cost of work based on negligence. We find against plaintiff on its negligence claim. Defendant1 denies all liability because of alleged failure of plaintiff to give notice of failure and to demand of defendant that it furnish paint. We find notice was given defendant, demand was not required, and defendant is liable for cost of paint for its failure to furnish it as agreed.
Plaintiff operates a malt manufacturing business in Milwaukee. It desired to paint the inside of two malt houses, without interference in its operation. In each malt house were a number of bins where the malt product was processed. There was conveying machinery for delivery of the product to the bins. The outside walls of the bins, the inside surface of the houses, and conveyor machinery were to be painted. These surfaces were at all times when the malt houses were being used, covered with varying degrees of moisture, from dampness to a density that flowed. The humidity in the malt houses was in excess of 90%.
Defendant manufactured a paint for damp walls called "Damp-Tex." Mr. Niedt, Vice-President of defendant company, inspected one of plaintiff's malt houses. He was told the other was "identical" to the one inspected. He represented that Damp-Tex could be used to paint the walls while wet, and that operations need not be interferred with. Mr. Niedt prepared specifications for use of Damp-Tex and accompanied the specifications with a letter, part of which reads:
After receiving the specifications and letter plaintiff made a contract with a paint contractor to do the work, using defendant's Damp-Tex.
The Damp-Tex was applied at a cost to plaintiff, including labor, in excess of $40,000. The paint appeared to be satisfactory on completion of the work and for about a year thereafter. The paint then started to flake, peel and separate from the parts of the malt houses where applied. There was trouble of like nature with the paint on the conveyors in one of the houses within the year, but defendant claimed this trouble was due to manner of application. The Damp-Tex "did not give satisfactory" service for a three-year period and therefore failed to meet the guarantee of defendant.
Plaintiff completed the painting in the fall of 1944. There was substantial peeling at the end of a year from the time of application. By October of 1946, less than two years after it had been applied, defendant had notice of a substantial failure of the paint to comply with its guarantee, and was seeking the cause. The cause was never established. The paint was applied in accordance with the specifications. There is no proof of fault in the specifications or negligence in supervision by defendant. The paint did not meet the guarantee of defendant for use in plaintiff's malt houses because of some unknown condition on the wall surfaces; whether a chemical or temperature condition the record does not show. One wall, the other side of which was not exposed to outside temperature, developed less peeling than exposed walls.
The complaint charges:
"* * * the material applied to plaintiff's malt houses and manufactured by the predecessor company did not conform to the claims, representations and warranties made by said predecessor company through its agents and its promotional literature in inducing the plaintiff to use said material."
Relief is sought based on:
"* * * the failure of Damp-Tex to conform to the claims, representations and warranties made to the plaintiff by the predecessor company, the preparation of improper specifications by the predecessor company, or the negligence of Henry W. Strand as alleged in paragraph 13 hereof, or a combination of said causes * * *."
At the trial plaintiff's counsel informed the Court:
The "paper" referred to (Plaintiff's Exhibit No. 5) is the letter which accompanied the specifications.
In plaintiff's brief we find these claims:
Defendant stands on the letter accompanying the specifications, asserting:
"* * * defendant's liability to plaintiff, if any, under said alleged guarantee would be limited to the furnishing of sufficient "Damp-Tex" to repaint surfaces on which "Damp-Tex" had been applied as provided by the specifications and on which there had been a failure;"
and claims plaintiff failed to make demand for execution of the terms of the letter:
"* * * nor has plaintiff at any time called upon defendant to furnish to it any paint in any amount to repaint any surfaces and that therefore any alleged right that plaintiff may at any time have had is barred by the Statute of Limitations;"
Bearing on plaintiff's claim of negligence in supervision it offered the testimony of Mr. Strand, an employee of defendant, to show inspection and direction, by defendant, in application of the paint by the contractor. Defendant objected to Strand's testimony as not binding because not within the purview of Strand's duties. We overrule defendant's objections to Strand's testimony.
Both parties lay stress on this point and argue the importance of Strand's testimony. We are not impressed. Regardless of Strand's duties, the record is barren of proof of fault in application of the paint. There is substantial evidence the paint was applied in accordance with the specifications. There is no evidence it was not — only speculation. Regardless of Strand's duties there is no evidence that any act or failure to act by him contributed to the failure of the paint in any way.
Defendant prepared the specifications. Only a myth of suspicion attaches to the terms of the specifications. They were complied with. In no particular is it shown or attempted to be shown that the specifications were at fault. Plaintiff has the burden of proof of pointing to some defect in the specifications and then connecting such defect with the failure of the paint.
We are left with plaintiff's claim based on the guarantee contained in defendant's letter of December 13, 1943, which accompanied the specifications. The guarantee reads:
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