CLAIM FOR DAMAGES

Timaru Herald, Volume CXLVI, Issue 21360, 1 June 1939, Page 6

CLAIM FOR DAMAGES

Sequel to House Painting

Quality of Paint Disputed Question of Warranty Decision was reserved by Mr H. Morgan. S.M., in a case which occupied his attention until 6 p.m. yesterday at the Timaru Magistrate's Court, when John Stevens, printer, of Timaru. sought to recover £lO5/17/10 from W. G. De Ment, importer, of Dunedin, as damages in regard to an alleged breach of warranty of the quality and, or fitness, of paint manufactured by the Atlas Preservative Company, of England, which plaintiff had purchased from the defendant for the painting of his house in York Street, Timaru. Mr G. J. Walker appeared for the plaintiff, and Mr B. A. Quelch, of Dunedin, for the defendant.

The statement of claim set out that in November. 1937. the plaintiff agreed to purchase a quantity of paint to paint bis house in York Street. The plaintiff required a superior quality paint, the lustre and the effective life of which would be above that of the average house paint, and defendant expressly and/or implicitly impliedly made known to the plaintiff that the paint was of a quality superior to that of ordinary paint, in that the useful, efficient and satisfactory life of the paint when applied to the residence would not be less than five years and the lustre would be above the average for that term of years. The plaintiff relied on the defendant’s skill and judgment in respect of the quality, type and colour of the paint. Further, that the paint, which was known rs Atlas paint, was purchased by the plaintiff from the defendant at a price considerably greater than that of ordinary quality house paint. That within three months of its application the paint commenced and had continued to lose its lustre, became discoloured and commenced and had continued to peel and wear off the building and roof. The plaintiff without delay notified the defendant of its condition. The paint was now and had been since 1938 useless for the purpose for which it was purchased, and the residence was and had been in an unsightly state for that period and plain tiff had been put to considerable inconvenience as a result.

The plaintiff therefore claimed damages for breach of warranty of quality and/or fitness the sum of £lO5/17/10. comprised as follows:—Special damages. cost of original and freight £34/17/6, cost of labour in connection with the application of the paint £29/0/4, cost of removing paint supplied by defendant £27, and general damages £l5.

Outlining has case, Mr Walker said that his client had met defendant at his business premises and De Ment told him that he could supply a particularly good paint which would last for five years and probably a good deal longer than that. In view of the representations regarding this paint plaintiff agreed to purchase the paint. Specifications were drawn up by De Ment and in due course it arrived. Stevens made arrangements with Mr Stechman, a local painter, who carried out the work. Within three months of the job being finished the paint faded, rubbed off the woodw'ork, and peeled off the roof. Stevens immediately communicated with De Ment. who offered to supply additional paint and said that he should get a man named Mitchell to repaint the roof and prove that the paint was satisfactory. It was arranged that the work of repainting the roof would not be done till after the winter. Some six months went by and he wrote to De Ment on two occasions without receiving a reply, so he informed his solicitor. They proposed to prove that De Ment’s paint was applied accrding to defendant's specifications, his veibal instructions, and also acocrding to the instructions on the tin. The weather conditions were satisfactory for painting work, samples supplied had been analysed, and the analysis proved that this paint was not satisfactory for this type of work. Also, that there had been at least one previous failure of this paint in Timaru when applied to the roof of a residence and that defendant was aware of this when he sold the paint to Stevens. Good Weather /Jcxander Walter Anderson, curator of reserves. Timaru, who said that he was employed by the Meteorologic ’ Department to take weather records, produced a chart which showed that there had been no frosts in January. 1938. and also that from January 9 to 22 there had been no rainfall at all in Timaru. On the application of Mr Quelch, witnesses were then ordered to leave the Court.

In evidence, the plaintiff. John Stevens, said that De Ment had been calling on a client in the same premises and mentioned that he wished to paint the house with a super paint and he said that he had a splendid paint which would be practically as good in five years and would last considerably longer than that. He said that in one case he had given a 10 years’ guarantee. Defendant said the paint was superior to the ordinary house paint. Witness questioned him in regard to one lot of paint which he had heard did not stand up to the test, and he replied that the painters had doped it by interfering with the mixture. On his next visit a month later witness took him up to the house and they talked over the paint. De Ment suggested a light blue roof, dark blue facings and buff round sashes, rough cast buff, with a rough cast paint. Defendant said rough cast paint would last 14 to 15 years and all that would be required was to brush it down with a stable broom and wash it down with a hose. Witness decided to take his paint and he agreed to supply specifica tions, which he did. The price was almost half as much dearer than ordinary house paint, and in view of defendant's representations witness expected a .pecially good job. Defendant then sent up the paint, four gallons of rough cast paint, but he had to secure a further eight gallons as there h..d

not bean enough. Witness went to Mr Stechman. who had painted the house six years ago. As Mr Stechman had not previously used this paint he decided to use day labour. Witness said he wanted a good job made of it as it was a very expensive paint. Witness was not particular as to time as long [ as he made a satisfactory job. Wit- I ness particularly told Stechman not to | use any thinners in the woodwork j paint. Weather conditions were per- j feet nearly all the time, with warm I temperatures. The. day they did the j roof was ideal. When the job had been I in progress about a week Mr De Ment visited the house and appeared quite satisfied. About a week later Mr De Ment again visited the house when they were putting the first coat on the roof and witness and he both complained about the colouring on a small portion of the roof. The painters gave it another coat of the first coat paint and it appeared satisfactory when it was done. Tire job was finished and in May the paint was starting to fade and witness was not satisfied with it. Witness asked defendant to come and see the painter about it, as defendant maintained that the paint had been doped. On the way down to see the painter De Ment said he would get a man named Mitchell to repaint the roof to show that the paint was all right. The house had been an eyesore for monhs and required painting. Parts of it were worse than it had been before painting. To Mr Quelch: It was about the middle of February that De Ment had said that the painter had “doped" the paint. He had not paid the painter as he was waiting for the extra paint to arrive. Part of the painting was quite all right where it did not get the sun. It looked a good job when finished. Average Life of Paint Percy Watts Rule, architect, who stated that he had inspected the house soon after it had been finished in January, said that it was a beautiful job. He had seen it again in August, when it had deteriorated very much. The average life of reasonably good paint shoud be five years, which was a very reasonable minimum. As an architect he thought blue paint very unsafe to use outside.

To Mr Walker: He had always found Hr Stechman a most reliable painter. Frederick Joseph Roper, painter, employed by the Education Department, formerly employed by Lewis and Co., said that he had painted the roof of a house in Wai-iti Road. He used Atlas paint, but before 12 months it had started to fade. He would not call it a satisfactory job. Nothing had been added to the paint. Cross-examined, witness said that Atlas Rujtkiller was a hard paint to put on. Painter’s Evidence Ronald P. Stechman, a painter for over 20 years, said that plaintiff wanted an exceptionally good job as the paint was dearer. Witness commenced the job with A. Roper and H. Stephens. A proper job was made of the cleaning of the roughcast. Specification set out use of paints by numbers and stated that no “turps” were to be used on the woodwork paint. He had also been told that verbally by Mi- De Ment. The specification produced was similar to the one used on the job. They proceeded with the cleaning down of the roof and the first coating. Mr De Ment said that the roughcast stood plenty of “turps.” His exact words were “dump plenty of turps into it.” Witness bought one gallon of “turps,” of which half was used for cleaning the brushes and the balance used in the Atlas wallcoat paint for the roughcast. The woodwork was brushed and sandpapered and given one coat of grey priming, undercoating of blue, and final coating of blue of hand glass. Nothing had been added to the paint for the woodwork. The paint for the roof was applied as it came from the tins; nothing had been added to it. The brushes were quite clean. Four to five months after the job was finished Mr De Ment and Mr Stevens called to see witness. No accusation was made by Mr De Ment that witness had doped the paint. Since the job was completed the roof had faded and the woodwork in the sun had perished and faded. The roughcast was rubbing off. It was definitely necessary to repaint the house, and to do the work all the paint would have to be burnt off. The roof paint and the roughcast had wholly deteriorated. Cross-examined witness said that he had not used Atlas paint before. The discolouration on one sheet of the roof was caused owing to paint from a primer from the door, although the brush had been cleaned. The thick sediment on the bottom was not typical of New Zealand paints. They had to break the paint up and had to use an iron standard; it was like concrete. After a thorough stirring with the oils the paint was poured into pots and then from one pot into another. When applied it was in the usual state of paint ready to be applied. Turpentine was used in the second coat. He was quite positive no “turps” was used in the woodwork and roof paint. Mr Stevens had made no representations that the painting had not been satisfactory. Tire blue paint, when peeling, would curl back and take the green p int with it. It was usual to use more underfinish than finishing paint. Witness had neverargued the point with De Ment about the work. Even although a lime wash had been applied to the foundations originally, the paint should last over a year without signs of rubbing. To tire Magistrate: An ordinary paint would last five years. He had not known of a house painted with ordinary paint to go as this one had done. He had complied properly with all the instruct rns. He thought the paint was not suitable for the climate. From the hardness of the paint it appeared as if it had been stored for a considerable time, but that should not affect it as it was in sealed tins. Expert Evidence Roy Gardiner, analytical chemist, of Dunedin, a Doctor of Chemistry, said that he had analysed samples of the paint. The dark blue mixture of pigment was comprised of ultramarine and barium sulphate. After giving technical details of its chemical constituents the witness said that it was not a stable substance if in contact with moisture or sunlight. The barium sulphate was a white, inert heavy substance used in paint probably to give it weight. It was not a good pigment; in fact, it was not considered a pigment at all. In addition, there would be oils and some thinner volatiles. They would not form a stable paint film in

his opinion. Some pigments formed very stable films with the oils, but barium and ultramarine were not included among these. Tire ultramarine would be the point which the sunlight and moisture would attack. It was a matter of general knowledge among painters that ultramarine was not suitable for outside work. He knew of two cases where ultramarine paint had not been satisfactory. If turpentine were added there would be no effect as far as the stabality of the pigment was concerned. It would not effect its lasting properties. Witness also gave evidence regarding the deterioration of the painting on the house. Albert Edward Roper, a painter who had worked on the job, said that it had been carried out according to specifications. On one occasion De Ment had said that they could put plenty of “turps" into the wall coat paint, but that no “turps” were to be added to the roof coat. William Henry Stevens, who had also worked on the job, gave similar evidence. Expert evidence in regard to the removal of the paint, which was in a very bad condition, was given by William James Harding, a builder and contractor, who stated that it would cost £27 to remove the Atlas paint.

Case For Defendant Mr Quelch said that his client was the agent for Atlas paint, which was manufactured in England and which was sold extensively throughout the South Island to Government departments. local bodies, firms and private individuals. Evidence would be tendered to show that this particular brand had been used successfully and that it had lasted for years. After an examination of plaintiff's house, defendant contended that the paint had not been properly mixed; secondly, that some substance must have been used in it to produce the present condition foreign to the paint; and, thirdly, that as more finishing paint had been used on the roof than the undercoating paint it had not been properly painted. He agreed with Dr. Gardiner that the proper test for paint was the time test. Evidence would be given by defendant and his witness as to satisfactory exposure to weather by the same and similar paints. No time guarantee as to the period it would last had been definitely stipulated. Defendant admitted offering to repaint the roof as he wished the job to be a good advertisement to him. Mr Quelch mentioned that there were some discrepancies as to when the wall coat thinners were used.

No Guarantee William George De Ment said that in 1937 he saw the plaintiff at various times and discussed the painting of his house, and suggested a colour scheme. The “Atlas Rustkiller” paint was specially and definitely designed as a steel and iron preservative paint, which was in use from the Arctic Circle to Bluff. In the first place witness wanted Stevens to employ a local painter who had used it on the Timaru Harbour Board cottages. He told Mr Stevens that he gave a guarantee of 10 years to the Otago MotorAssociation for its signboards, but with the proviso that he painted them himself. Witness gave no guarantee to Stevens. On October 9, 1937, witness forwarded the paint, together with the original of the specifications produced. Early in January 1938 Stechman and his men had finished the wall coat on the north side. He had said. “You’re using mineral turps,” and asked where they had got the authority to use “turps” at all. Witness informed Mr Stevens, who had said that he did not want the job ruined any more than witness did. He had pointed out to Stechman that “turps” were not to be used unless absolutely necessary. If the paint were thoroughly mixed and of the right consistency there would be no trouble to apply it. In February, 1938, witness saw the roof undercoated and had never received such a shock in his life. It was unrecognisable as an Atlas product. He told Stevens that the roof was ruined and that it would break down. Evidently there was some alien matter In the undercoat. The paint was very badly applied and had never been mixed properly. The roof was 2200 square feet in area and two gallons of undercoat would do only 1400 to 1500 square feet. It was essential with the Atlas paint to see that the undercoat was properly and carefully covered before applying the finishing coat. This same fadeless blue paint had been used on roofs at Hakataramea. Warrington, and on the Dunedin City Corporation dust-carts. The hard glass blue paint supplied to the Dunedin-Kaikorai Tram Company, had been forwarded from the same consignment as that for Mr Stevens. Tire State Forest Department, the Railways Department, the Dunedin City Corporation, and the Otago Harbour Board had used Atlas paint. Witness had supplied the paint for the Oamaru Borough Council to paint the baths and he had given a four-year guarantee. Tire guarantee had expired, and although the paint had been applied over tar, there had been no deterioration at the end of that time or since.

To Mr Walker: The superior combination resulted in a good surface. The paint should give at least six years’ service. When he sold Mr Stevens the paint he was sure that it would give five or six years’ service, provided it was put on correctly. He disagreed with Dr. Gardiner and contended that it was a suitable paint. Red Atlas paint had been supplied to the Timaru Harbour Board. There was no ultramarine in the red paint. He had had only one consignment of paint from the Atlas Company, and that was about three years ago. The paint supplied to Mr Stevens had. with the exception of two other customers, been practically the last of the consignment. Witness denied that the blue paint was hard to sell. Stevens had said that it was a badly painted job, and that had been the reason he had withheld payment from Stechman. He did not remember whether he had accused Stechman of doping the paint when he saw him on a job in Queen Street. To his Worship: He had not been influenced by the fact that the blue was a slow seller when he suggested to Stevens that that colour should be used, but as it would tone in well with the concrete blocks at the base of the house. Witness did not agree with Mr Rule that when the painting was finished that it had been a splendid job. Herbert Robert Mitchell, of Dunedin,

a painter with over 30 years’ experience, gave evidence regarding the condition of the paint at Mr Stevens' house. He attributed this state of affairs to the fact that old paint had not been scraped off the roof. The tendency to fade might be due to insufficient undercoating. Two gallons of undercoating paint would be in-,jj sufficient. Probably a thinning had been added to the finishing coat, which would explain its general breakdown. Tlie hard gloss blue on the woodwork had not been properly applied as it required proper spreading out. Witness had used similar paint on the roof of a house at Hakataramea over a red oxide surface, and two or three months afterwards it was in perfect condition. He had used it on anoher house with similar results. Heso had used Atlas paint for about four years and always found it to be as represented. It would take about half an hour to mix it properly, so that all 1" the pigment would be in suspension. To Mr Walker: About 10 per cents’’ of the paint used by him during the year had been Atlas paint. He did not use more unless specified as the price was high. He had used red an<^ f green Atlas paint for roofs, but bluff on only one occasion. He doubted if the old green paint had been removed from the roof of Mr Stevens’ house before the blue was applied. To Mr Quelch: He had been success-’ ful with Atlas paint, but would not use “turps” except in the wall painty If it was properly mixed there was no reason why it should not spread on a properly prepared surface. At the suggestion of counsel, the Magistrate agreed to inspect the plaintiff's house. Mr Morgan intimated that he would reserve his decision, and that counsel could submit legal argument in writing in regard to the question of warranty .•?