Marshall v. Food, Chemical & Research Laboratories, Inc.

484 P.2d 426, 4 Wash. App. 789, 1971 Wash. App. LEXIS 1444
CourtCourt of Appeals of Washington
DecidedApril 23, 1971
DocketNo. 305-41273-2
StatusPublished
Cited by1 cases

This text of 484 P.2d 426 (Marshall v. Food, Chemical & Research Laboratories, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Food, Chemical & Research Laboratories, Inc., 484 P.2d 426, 4 Wash. App. 789, 1971 Wash. App. LEXIS 1444 (Wash. Ct. App. 1971).

Opinion

Petrie, C.J.

The defendant, Food, Chemical & Research Laboratories, Inc. (Food Chemical), a consulting chemical laboratory, uses highly caustic acids of varying degrees of strength in its normal day-to-day activities. Food Chemical was required to move to a new location. It acquired a leasehold interest in a new building and, among other things, desired to obtain a type of flooring which would meet its needs.

To that end, Edwin Johnson, vice-president of Food Chemical, discussed the matter of appropriate flooring with a salesman for Madden Construction Supply Co., Inc., a [790]*790distributor for construction material. The salesman for Madden represented to Mr. Johnson that an epoxy floor covering known as Concresive 1097, manufactured by Adhesive Engineering Company, was highly acid resistant. Initial samples of Concresive 1097 shown to Mr. Johnson were dark red and dark green in color. Mr. Johnson expressed a desire for a light beige color. Adhesive produced a light beige sample of Concresive 1097 — designated 1097-5 — in the form of a color chip, which was delivered to Mr. Johnson. A representative of Adhesive told Mr. Johnson that there would be some darkening of the light beige Concresive 1097, and also told him that acids would tend to stain the floor. He chose the light beige sample as the color of the Concresive 1097 flooring that Food Chemical wanted applied to its laboratory floor. Madden recommended to Food Chemical that plaintiff, A. H. Marshall, be hired to apply the Concresive 1097-5.

Marshall entered into an oral contract with Food Chemical to apply Concresive 1097-5 on a square-foot basis. On or about July 1, 1967, Marshall, his son, and an employee of Madden applied a coating of Concresive 1097-5, which was smooth, but, where exposed to the rays of the sun, dramatically darkened from a light beige to a walnut color. Using the same product from the same order, Marshall reapplied a second coating over the prior coating. Immediately upon application, it likewise began darkening, changing color from light beige to a walnut. The second application also has some pockmarking. Immediately thereafter, Food Chemical moved into the building.

In the normal day-to-day business, acids were spilled on the floor and upon contact with the acids, the floor changed color from beige or brown to aquamarine and, in some instances, orange. Such change of color was not anticipated by Food Chemical. At time of trial, the floor covering, Concresive 1097-5, was in excellent physical condition, had not deteriorated from acid spillage, though there had been the change of color. The strength of the floor is excellent and it has protected the concrete which underlies it. The [791]*791only effect of the pockmarking, the change of color due to exposure to sunlight, and the change of color due to acid spillage, is in the aesthetic value of the floor covering.

Marshall’s application was in a good workmanlike manner, and he explicitly followed all directions of Madden and Adhesive. All representations by Madden’s salesmen during the entire transaction were based solely upon information supplied Madden by Adhesive.

Epoxy is a material that has only been used in recent years for flooring. It had not been used as a flooring in any other commercial chemical laboratory in the Northwest at the time of its application by Marshall to Food Chemical’s floor. Madden’s salesman delivered to Mr. Johnson a copy of Adhesive’s technical bulletin AE-187/1, which Johnson read and relied upon.1 A representative of Adhesive told Johnson that there would be some darkening of the light beige form of Concresive 1097, and also told Johnson that acids would tend to stain the floor.

The foregoing factual summary is a re-recitation of the unchallenged findings of facts entered by the trial court.

Marshall billed Food Chemical the sum of $3,586.96. Food Chemical having refused to pay, Marshall brought this action for payment of the agreed price. Food Chemical answered, contending that the flooring installed failed to meet minimum standards of acceptability, and counterclaimed seeking damages for correction of the condition of the flooring. Marshall answered the counterclaim and brought in, as third party defendants, Madden as seller and Adhesive as manufacturer of the product applied to the floor, contending that any liability with respect to Food Chemical’s [792]*792counterclaim was the joint and several liability of- Madden and Adhesive. Madden cross-complained against Adhesive and also sought, from Marshall, recovery of the cost of materials used. Adhesive sought dismissal of the claims against it by all the other parties.

After trial to the court, judgment was entered in favor of Marshall against Food Chemical in the amount of $3,586.96; in favor of Food Chemical against Adhesive in the same amount; and in favor of Madden against Marshall in the amount of $1,036.87. The net effect, of course, is that Marshall will be paid for his services and material used, Madden will be paid for the material sold to Marshall, Food Chemical receives its discolored and pockmarked (and unwanted) floor free of charge — at the expense of Adhesive, the manufacturer.

Food Chemical has appealed (1) challenging the trial court’s entry of several findings of fact (not hitherto alluded to in this opinion), (2) contending the trial court applied the wrong measure of damages, and (3) alleging the trial court erroneously entered judgment in favor of Marshall against Food Chemical and erroneously failed to enter judgment in its favor against Madden and Adhesive jointly and severally.

We explore, first, the several challenged findings of fact and consider four such findings together:

That the defendant, Food, Chemical & Research Laboratories, Inc., as lessee, desired to put in a highly chemically resistant floor in the building they were leasing from Dr. Peniston 'and Mr. Johnson to protect the underlying concrete floor.

That the salesman from Madden Construction Supply Co., Inc., represented that a product, Concresive 1097, which was an epoxy floor covering, was highly acid resistant. That epoxy is a material that has only been used in recent years for flooring. That it is not used in any other commercial chemical laboratory in the northwest. That the primary purpose of using an epoxy floor cover[793]*793ing is to protect the concrete subflooring from erosion and disintegration from contact with acids.

That the strength of the floor covering, Concresive 1097-5, is excellent. That it has protected the concrete that underlies it. That the floor covering, Concresive 1097-5, is in excellent functional condition.

That the change of color in the floor covering, Concresive 1097-5, due to exposure to sunlight, the pockmarking and the change in color where it has suffered acid spillage do not affect the functional value of the floor covering, Concresive 1097-5. That the only effect of these items is upon the aesthetic value of said floor covering.

(Food Chemical has assigned error only to the italicized portions of these findings.)

Assignments of error to instructions 10 and 12 were precautionary, so as to avoid any implication that Food Chemical’s sole or even primary motivation for desiring a highly chemically resistant floor topping was to protect the underlying concrete floor.

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Related

Bringle v. Lloyd
537 P.2d 1060 (Court of Appeals of Washington, 1975)

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Bluebook (online)
484 P.2d 426, 4 Wash. App. 789, 1971 Wash. App. LEXIS 1444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-food-chemical-research-laboratories-inc-washctapp-1971.