Blackton Bldg. Supply Co., Inc. v. Garesche, 78-1740
| Citation | 383 So.2d 250 |
| Decision Date | 02 April 1980 |
| Docket Number | No. 78-1740,78-1740 |
| Parties | BLACKTON BUILDING SUPPLY CO., INC., etc., Appellant, v. Winston L. GARESCHE et ux., Appellees. /T4-178. |
| Court | Florida District Court of Appeals |
Ronald A. Cyril, of Nelson, Hesse, Cyril, Weber & Smith, Sarasota, for appellant.
F. Hartselle Baker, Orlando, for appellees.
This is an appeal from a final judgment awarding damages to appellees consequent upon a jury verdict in their favor. The appellant is a distributor of a product known as Tex-Cote, a product applied as an exterior coating to homes and other structures. The appellees were consumers to whose residence the product was applied by a contractor who purchased the product from the appellant. 1
Appellees had filed suit against the manufacturer of the product, the contractor who applied it and the appellant, who was the retailer or distributor. The first count alleged breach of express warranty against all three defendants; the second count was based on the alleged fraud and misrepresentation of all three defendants in the brochures advertising the product, and the third count was based on negligence of the contractor in applying the product in a manner contrary to instructions and of the appellant distributor in selling the product to the contractor when it had reason to believe that he would not follow instructions. Although guaranteed by the manufacturer not to crack or peel, the product as applied did crack and peel and the appellees sought damages to cover the cost of removal and refinishing. There was no issue as to the validity or integrity of the manufacturer's guarantee and the evidence showed its willingness to correct the problem. The appellees, however, wanted the product removed from their building.
The jury returned a special verdict in which it found that neither the manufacturer nor the appellant distributor was guilty of any fraud or misrepresentation and that neither the manufacturer nor the appellant distributor was guilty of any breach of express warranty. The special verdict found the contractor guilty on all three counts, and it also found the appellant negligent. Damages of $2500 were assessed against the distributor and the contractor. The contractor has not appealed, but the distributor appeals the judgment, claiming that the evidence is completely devoid of any evidence showing a breach of any duty owed by it to the appellees. We agree and reverse.
The verdict of the jury makes it clear that the product was safe and...
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