Correlli Roofing Co. v. National Instrument Co.

• Decision Date: 14 December 1965
• Docket Number: No. 30,30
• Citation: Correlli Roofing Co. v. National Instrument Co., 240 Md. 627, 214 A.2d 919 (Md. 1965)
• Parties: CORRELLI ROOFING CO., Inc. v. NATIONAL INSTRUMENT CO., Inc.
• Court: Maryland Court of Appeals

Page 627

240 Md. 627

214 A.2d 919

CORRELLI ROOFING CO., Inc. v. NATIONAL INSTRUMENT CO., Inc.

No. 30.

Court of Appeals of Maryland.

Dec. 14, 1965.

Hyman K. Cohen, Baltimore (Jay Fred Cohen, Baltimore, on the brief), for appellant.

Alexander Stark and Victor H. Savadow, Baltimore, for appellee.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, BARNES and McWILLIAMS, JJ.

MARBURY, Judge.

National Instrument Company, Inc., plaintiff-appellee, was the owner of a thirteen year old building when, during the year 1961, it contracted to have an addition constructed to the existing building. The general contractor was Mr. Charles DiPangrazio who sub-contracted the installation of the roof to Correlli Roofing Company, Inc., defendant-appellant. The approximate cost of the entire new masonry building was $24,000, including the price of the flat roof, which was $1,300. The appellant, when the new roof was completed, delivered to the appellee a written guarantee, dated July 10, 1961, which guaranteed the roof 'to be Leakproof and to wear 15 years under natural wearing conditions.' It further stated that the appellant assumed no liability for damage to buildings or contents thereof.

Suit was instituted on December 27, 1963, and the case was tried before Judge Sodaro without a jury, on November 18, 1964. The plaintiff's theory of recovery was that there was a breach of an express warranty in that there was considerable leakage through the guaranteed roof of the new addition which required the replacement of the entire roof. This leakage, in addition, was also the basis for a claim for compensation for alleged damages to interior contents.

At the conclusion of the trial the case was held sub curia, but on the same day Judge Sodaro wrote a letter to the defendant's attorney, with a copy to the plaintiff's attorney, advising them that he had concluded to render a judgment in favor of the plaintiff in the amount of $2,466, the exact amount testified by Mr. Rosen, president of the appellee, to be the cost of a new roof which was being put on the addition at the time of trial by the Edward G. Fick Roofing Company, the lowest of three bidders on the job. The judge, however, gave no basis for his award of damages and neither of the parties requested him to do so, as they might have done pursuant to Maryland Rules 18 c and 564 b 2. From the judgment subsequently entered in accordance with the letter of Judge Sodaro, the appellant has entered this appeal, which raises three questions: (1) did the appellee prove that the roof leaked, (2) if the appellee did in fact show that the roof leaked, was the appellant liable therefor under the guarantee, and (3) did the appellee prove damages sufficient to justify the award by the trial judge.

According to the testimony of Mr. Rosen, the roof leaked and had done so from the first time it rained after its completion. He also testified that Correlli sent its men out in response to his complaints approximately eighteen times, but they were uniformly unsuccessful in abating the leakage and, in fact, the leakage appeared to him to get progressively worse, despite the repairs. Rosen admitted that the appellant never refused to continue to make repairs on the roof but that they did refuse to construct a new roof, which he finally had requested. Six photographs were introduced into evidence by the appellee to show that the roof leaked, and one photograph showed a droplet of water actually striking a puddle upon the floor. The plant manager of the appellee company, who worked in the building, aso testified that the roof leaked. Mr. Rosen was allowed to testify, over appellant's objection, to damages to the interior contents of the building.

The plaintiff below also called Mr. DiPangrazio, who had been a building contractor for some twenty-nine years, but, according to his own testimony was not a roofing expert. DiPangrazio testified that he had received a complaint that the roof leaked about 'a month or so' after the building was completed and that he had many subsequent complaints from National Instrument Company about leakage, and that he had seen leakage especially where the flashing had been torn loose. Mr DiPangrazio explained that the flashing had to be replaced because it was warped and twisted due to the heat of the sun and because the roofers had not used the best type of flashing. He did not testify specifically that he thought a new roof was required but he did recall a conversation with Herman Correlli in which he (DiPangrazio) questioned the efficacy of appellant's continued patching. He testified, however, that if a new roof were to be built it was necessary to scrape down to the gypsum pouring deck, as was done by the Fick Company, instead of merely building a new roof atop the old, and that this required about two and one-half times more work than the original construction done by appellant.

The Roofing Company called John F. Detorie, who had been in the roofing business for some twenty-nine years and who had made a personal inspection of the allegedly defective roof. He testified that the apparent source of the entry of the water was through the flashing which was torn and cracked, and that the only thing which...