Tapping v. Mcintosh

• Decision Date: 13 April 1932
• Citation: 140 So. 773,104 Fla. 715
• Parties: TAPPING v. McINTOSH et al.
• Court: Florida Supreme Court

140 So. 773

104 Fla. 715

TAPPING v. McINTOSH et al.

Florida Supreme Court

April 13, 1932

En Banc.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Action by Edgar J. Tapping against H. D. McIntosh and another. Judgment for defendants, and plaintiff brings error.

Reversed.

TERRELL J., dissenting.

COUNSEL Van Fleet, Collins & Miller, of St. Petersburg for plaintiff in error.

Bussey Mann & Barton, of St. Petersburg, for defendants in error.

OPINION

DAVIS J.

It seems to me that the declaration in this case was sufficient to withstand a general demurrer such as was sustained by the trial judge.

The declaration sets out the terms of a building contract between plaintiff and McIntosh, the contractor. The contractor was to construct a building for plaintiff under the contract, plans and specifications, and the United States Fidelity & Guaranty Company became surety on a bond which was given by the contractor to save harmless the plaintiff in the event McIntosh failed to construct the dwelling in accordance with the plans and specifications attached to and made a part of the contract sued on.

A copy of the contract and specifications is made a part of the declaration. The declaration itself contains the following allegations:

'That said specifications further provide, among other things, that it was the intent of plaintiff and said McIntosh to obtain a sound, permanent and waterproof stucco covering of the outside of said buildings; that said buildings were completed by said McIntosh; that plaintiff, believing that said work had been done, and material furnished according to the true intent and purpose of said contract and specifications, paid said McIntosh in full for said material and labor; that the dwelling constructed under said contract and specifications was not constructed as specified, in that within sixty days after completion thereof, and after payment thereof in full, the stucco on the outside of said dwelling cracked in many places; said stucco was not sound nor permanent, nor was it waterproof; on the contrary, said stucco was unsound, weak, flimsy, and porous; that during a rain that occurred within sixty days after completion of said dwelling and after payment in full thereof, the rain in large quantities beat through said stucco and penetrated the walls of said dwelling to the inside plastering thereof, and then and there badly damaged the interior of the walls and other portions of said dwelling; that due to the poor workmanship and poor quality of said stucco, it became necessary for plaintiff to, and he did, have large quantities of said stucco removed from outside of said dwelling and other, proper stucco put on said dwelling in place of said defective material; that as a result of said defective stucco and poor workmanship, and to repair other damages caused thereby, plaintiff incurred heavy expenses necessary to remedy said damage; that the total expense for labor and material incurred by plaintiff to repair said damage caused by said defective stucco and workmanship is $1,873.55 as shown by bill of particulars filed herewith, and made a part hereof.

'That said specifications provide, among other things, that all work would be done in a workmanlike manner, and that all material would be the best of their respective kinds; that in violation of said agreement, the roofing of said dwelling was improperly constructed in that the roofing material consisting of tiles was improperly set in such a manner that the roof leaked and was open to the weather; that to repair said roof to stop said leaks plaintiff necessarily expended the sum of $14.00. That in further violation of said specifications, and in breach thereof, the fireplace was improperly constructed in that the flue thereof would not draw smoke or gases from the fireplace, but on the contrary the smoke and gases from the fireplace in said dwelling passed into the inside rooms thereof; that to remedy said defect plaintiff necessarily expended $85.00. The said specifications provided that all windows would be fitted with copper screen; that in

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