PAINTING A HOUSE

Northern Advocate, 19 November 1929, Page 6

PAINTING A HOUSE

CLAIM FOR DAMAGES,

LENGTHY CIVIL ACTION

A lengthy case in ■which a largo amount of evidence was submitted was heard at the Whangarei Magistrate’s Court yesterday when H. J. Babe claimed from R. H. Allan, a painter, the sum of £")0 in respect to the painting of the former’s house.

In his statement of claim Babe set out that defendant agreed to paint plaintiff’s house, washhouse, shed and fence with two coats of best English lead and oil paint, putty all defects in the timber, putty sashes where necessary, and that all work was* to be carried out to the satisfaction of the owner. Only the best workmen were to be employed and the materials wore to be of the best quality obtainable. It was claimed that the defendant had painted the buildings .•nder the agreement during the months )f October and November 1926; that he paint used had perished and was of inferior quality and not the best English lead and oil, as agreed; that the painting was done in a negligent ma nner.

In evidence, H. J. Babe, the plaintiff, said that he owned a house at VVoodhill, Whangarei, and asked Allan for a tender for painting it. Allan .icnt his men up and made a start. It was then late in autumn and the job was finished the following Spring, tt was about six months after that the man sent out by the Gripon Company came up to inspect the house and measured it up, and said that he would be back the following October to repaint it, but he had not turned up wet. The paint on the house turned black and rubbed off. Plaintiff understood that Allan would repaint the house if the Gripon' people provided the paint. Allan actually started on repainting soon after the visit of the Jripon inspector. The present action was started not long after the painting. The house had the appearance of being black only a few months after it was painted.' The inspector first! said it was the dog daisies and then said “No he has been interfering with the paint.” Allan had said nothing. ‘Witness had not written to the agents mneerning the paint. ; Cross-examined, witness said he considered that it took three months to i paint the house as the weather was 1 vet. He did not know how many men were employed on the job. There may 'have been four. With regard to, live tender, witness said he did not remember Allan saying he was going to use Gripon. Witness considered that if another well-known brand had been mod and it had gone black it would still be the fault of the paint. Witless did not know what the black was on the house. The house had been painted two or three times in less than 20 years. The building was ten times better before Allan painted it. The sheets wore painted with red oxide and oil and were not black. In his statement of claim he had stated that the woodwork had been cleaned in a negligent manner and although he h&d not seen it done he was judging by results. Ho paid Allan about throe months after completion of the work. He was satisfied with the job when if was finish--■d. Witness thought that excessive driers had been used. He did not remember the agent saying the house ! was not bad enough to be repainted i and that the fence would be done.

J. H. Walker, a hairdresser, said lie had had a number of years’ experience as a painter, 12 years of which had been in Whangarei. He examined Pabc’s house in April last and found the paint powdery and .in places covered with a black sooty substance. The paint was perished and had no body. The front door appeared to be a coat short. One would expect the best English oil and load to stand five years at least without signs of powdering. The paint may have been the best, but it may have been put on in a poor way. The oil may have been thinne'd by turps which had evaporated leaving the powder. With regard to employing the best workmen, one man and two apprentices, —if the apprentices were Just completing their time —would comply, but the apprentices would be pretty much on their own and they would not possibly have the necessary experience. Witness considered that the house exclusive of the red oxide work could have been painted for £65, or less, by tender. Twelve months after, for two coats, the cost would be, say, £55, but it would depend on how bad the paint was. If badly powder ed it would have to be cleaned off. If paint turned to powder six months after, he would place no value upon it. To his Worship, witness said faulty paint, or faulty work, would be explanations, and he did not think there were any others.

Cross-examined, witness said that if paint was put on bare boards the oil would soak in first and tend to leave a powdery surface. Witness did not know what the black substance was, and it seemed to have becoino common in the past five or six years. He could not express an opinion as to why tho rod oxide had gone blaek. Paint would not chalk in that time if properly mixed and he did not know of any other explanation. It may possibly have been the climate or mineral turps may have had an effect.

THE DEFENCE,

Counsel for defendant said that the defence rested on the fact that in the North no paint had not been attacked by a black growth and evidence would he produced to show that well known brands used in Wbangatei had been attacked. It was a refharkable thing that dripoh stood below New i*lv-

mouth and in the South Island, but

north of that the Government Research Department was trying to find a remedy.

Nelson Martin, whose evidence was taken in Auckland, said .that he was foreman for defendant in charge of Bale's jolb and he had two apprentices with him. They painted the house, fences and sheds, and also a separator shed and a house across the road. They first mixed the paints containing Gripon, raw oil, a small portion of turps, driers and strainers necessary for the colour. They brushed down any portion of the building that had any dust on it and removed any loose paint. The second coat applied was practically the same as the first, minus the turps. Gripon was a proprietary line and its composition is unknown. It was manufactured in England and cost more than lead and oil. Witness carefully supervised the work of the two -apprentices. Witness had read the statement of claim and it appeared from it that the paint they put on had discoloured. He had not seen the discolouration, but since the house was painted he had learned that about 300 houses in Auckland had had trouble with Gripon and had 'been painted again at the expense of the manufacturers. Witness had beard of lead and oil paints giving trouble and it was so today. They may be a predisposing cause with both lead land oil and Gripon. It might be some peculiarity of the timber. Any trouble on the job in question was not caused by defective workmanship, but would be due to defective paint.

Cross-examined, witness said the job took about two or three weeks but he did not know for certain. He could not remember whether they made ope continuous job, but in the ordinary course of events they would do a job straight through and have no intervals. Turps was put in the first coat to prevent cissing and to make the second coat spread properly, grip, and prevent blistering. Too much turps would not make the paint easier to put on but harder. The driers used would be liquid, but he did not think there were any instructions on the tins of Gripon as to what should be added for driers. When witness mixed paints he took into consideration the fact that part of a house faced the sun and part did not. For the second coat they mixed Gripon with oil and strainers and a small quantity of driers. The house badly wanted painting and it was probably eight or ten years, or more, since it was painted. Gripon was being sold in Auckland at the present time and had not been withdrawn from the market. Witness could not say definitely whether Gripon was a poisonous paint, but it was advertised as non-poisonous. Paint should J last from five to seven years before it istarted to powder. Mr 'Babe’s house was exposed to the sun.

Re-examined, witness said the paint for the first coat was mixed thick, into a thick paste and (before using it each day they would thin it out into a stop pot to suit the particular surface and weather to which it was exposed. All his stock was left in the barn and Mr Babe had access to it.

R. H. Allan, the defendant said he had ,had 30 years’ experience In the trade, 20 of which had been in Whangarei. He remembered the agreement with Babe in March 1920 and started the job straight away in excellent weather. It took two or three weeks to do the job. Martin was a fully qualified painter and there were two apprentices, two and three years, respectively, and himself. Martin mixed the paint. The apprentices may have done some stirring under supervision and the paipt was always issued by Martin. Defendant saw Mr Carr, Guthrie Bowroll’s representative, and lie said Gripon was an excellent material, strong and lasting. Defendant told Babe and advised him to use it in preference to lead. Babe said he wanted a good jab and if Gripon was better, to use it. Although it was dearer defendant con- i sidered he would make up in labour ■what ho lost in cost. Before painting, the condition of the house was bad and the graining could be seen. He cleaned it down, the rough places were sandpapered and thoroughly prepared. Martin did all the sashes. Defendant did the roof and one side of the house. The first trouble occurred about IS months later, when Babe said the paint was going black and he found little black spots on it. Defendant spoke to Mr Carr about it and the manufacturer’s representative came up to see it. The representative saw it, but would not have the house re- | painted as it was not bad enough. The red oxide had since turned black. Since using Gripon he had had trouble with other paints , and several houses he had painted had gone black. Defendant thought the blackness was a fungus. Cross-examined, defendant said he had had no previous experience of Gripon on a house. It was a good obliterating paint and easy to put on. It was supposed to be a non-poisonous paint. Defendant posted several accounts, but received no reply and eventually went and collected his cheque. It was not a fact that he started the job in April and owing to the wet had to wait till October to finish it. He painted two other jobs tvith Gripon and they had been repainted. A paint composed of the best English oil and load may powder in two years under c.ertaih conditions, Gripon was given to him as a first class paint and betook tho word of experts. He estimated the cost of paitating excepting the rod oxide at about £65 at present values. Ho did not know any paint which would resist tho black.

W. E. Wood, • a painter, said the same trouble with black Was being experienced all over the to#h and he

could not account for it. He understood that the Government Research Department was investigating it. Ho paint ho knew would stand against it. It was approximately five years ago when it was first’ noticed. Cross-examined, witness said that on houses where the black had appeared the manufacturers of Gripon allowed 50 per cent. He had painted sonic 15 houses and had to repaint at least a down. There was no obligation to do so, but it was for his business reputation. H. Haynes, another painter, said that Babe’s house did not appear to be any worse than others in the town. He had also seen quite a lot of the black fungus. It was nol confined to Whangarei but was also iu Auckland. If a house was very dry the oil was absorbed, leaving the pigment on the surface. HOUSE INSPECTED. The Court, then adjourned and an inspection was made by the Magistrate of Babe’s house and another house affected by the black substance. COURT RESUMES. • Counsel for defendant claimed that Allen could not be blamed for what may be termed an Act. of God, There was only, one other point, that of the powdering. That may happen to the best English oil and lead and there was no evidence that Gripon was not the best. Martin had said the paint was mixed properly and it was hardly reasonable to suppose that he would make a fault in adding too much turps or driers. The powdering on the building was worse where the fungus was. If the paint was not good on any part of the buildings then the paint might have been badly mixed or faulty material' tried. It must be assumed

that such a serious mistake in mining would not be made.

Babe was aware that Gripon was being used and was satisfied with the job. Surely the manufacturers were not likely to risk sending out inferior quality paint to experiment with. Counsel for plain till! said that there was a contract to use best English lead and oil. Defendant had used Gripon and depended on the- agent’s recommendation. The onus lay on Allan to provide the best material available. He contended that it had not been established that Babe agreed to Gripon. Its composition was unknown and the onus was to show that Allan had achieved the best results. He also submitted that it had not been proved that that oil ami lead would have been a failure, and that defendant had committed a breach of contract He submitted that plaintiff was entitled to judgment for damages. MAGISTRATE’S DECISION.

The Magistrate, Mr G. N. Morris, S.iM., in giving his decision, said that, he had listened very carefully to the evidence that the black substance was a fungus and that painters in Whangarei did not know any paint to withstand it. It was clear that whatever paint had been used the result would have been the same. Regarding the contract he was inclined to think that Babe had forgotten that Allan had mentioned Gripon, He could not hold Allan responsible for his selection, when apparently any paint would do the same. Concerning the powdering, from what ho saw the powder was worse where the fungus was thick, while the rest was in good condition. He considered the damage was largely in appearance.

Judgment was for defendant with court costs £!/!/•, Witnesses’ expenses £l/*/-, ahd solicitor’s fee &3.