
    C. J. MANEY COMPANY, INC., AND NEW ENGLAND FOUNDATION CO., INC., v. THE UNITED STATES
    [No. 45048.
    Decided November 5, 1945]
    
      
      The Reporter’s statement of tbe case:
    
      Mr. Dean Hill Stanley for plaintiffs. Mr. Joseph R. McOuen was on tbe briefs.
    
      Mr. Frank J. Keating, with whom was Mr. Assistant Attorney General Francis M. Shea, for tbe defendant.
   WhitakeR, Judge,

delivered the opinion of the court:

Plaintiffs had a contract for the construction of the superstructures for the houses in the Fairfield Court Housing Pr o j - ect at Stamford, Connecticut. Included in the contract was the painting of the concrete ceilings in the dwellings. Plaintiffs were unable to paint these ceilings to the satisfaction of the contracting officer by using the paint specified, and finally used a different sort of paint which produced a satisfactory job. The excess cost of the substituted paint and labor and overhead and profit was $9,243.03. For this amount plaintiffs sue.

Defendant does not deny that this excess cost was incurred in doing the paint job, but it says that plaintiffs’ failure to prepare the concrete ceilings in the manner specified was the thing that made it necessary to use a different paint from that specified and, hence, that it is not liable for the excess cost.

Paragraph 4 of the specifications relates to concrete work. Paragraph (A), with subparagraphs (a) and (b), relate to exterior concrete surfaces exposed to view, to interior exposed concrete surfaces in spaces where glazed-finish tile or brick occurs, and to interior exposed concrete surfaces in spaces where plastered walls occur. Paragraph (B) relates to interior concrete surfaces, except in spaces where plastered walls occur and except in spaces indicated on the drawings as “Pipe Spaces.” Paragraph (C) relates to all other surfaces of concrete work. The painting in controversy was of interior exposed concrete ceilings in rooms with plastered walls and these concrete ceilings, therefore, are governed by paragraph (A) and subparagraphs (a) and (b). They are not governed by paragraph (B) because there is excepted from its provisions “spaces where plastered walls occur.” Paragraph (B) evidently refers to the ceilings in basement rooms or other rooms the walls of which were not plastered. The concrete ceilings of those rooms the walls of which were plastered are governed by paragraph (A).

The concrete work governed by paragraph (A) was the best of that specified; that governed by paragraph (B) did not have to be quite so level and smooth; and that governed by paragraph (C) could be even rougher. Paragraph (A) required that the concrete surface should be “level and smooth to receive paint,” and it further specified in sub-paragraph (a) that the material used for form work should produce “a level, dense surface, free from honeycombing, joint marks, fins, bulges, depressions, or marks showing the grain of the wood forms.” It was further required in sub-paragraph (b), “Any defects that may appear shall be rubbed smooth with carborundum stone, or by other means, if necessary, until the surfaces meet with the approval of the contracting officer.”

The concrete surfaces mentioned in paragraph (B) also had to be free from fins and honeycombing, but this paragraph made no mention of “joint marks, fins, bulges, depressions, or marks showing the grain of the wood forms.”

It is not denied that the concrete in the rooms, the walls of which were plastered, did have fins and were not sufficiently level and smooth to receive the paint specified.

Plaintiffs tried a number of times to. paint these ceilings so that the fins and depressions and other rough places in the concrete would be hidden, but they were unable to do so. After the paint had been applied the fins still appeared. Plaintiffs tried to remove these fins by the use of carborundum stone, but still were unable to do so successfully. After the paint was applied the fins still appeared. The contracting officer, therefore, was wholly within his rights in rejecting the work.

Quite a good deal of time was consumed in trying to produce a satisfactory result, and finally one of defendant’s employees in its Inspection Division suggested to plaintiffs the use of a different sort of paint, and plaintiffs finally succeeded in obtaining satisfactory results by using a paint very similar to that suggested by defendant. Defendant then told plaintiffs it would agree that they might use this substitute paint instead of requiring them to prepare the concrete in the way specified, but with the understanding that no additional payment should be made to plaintiffs and no extension of the contract time would be granted.

Plaintiffs refused to agree to this because they insisted that the paint specified would not produce a satisfactory result, but they did proceed to paint the ceilings with the substituted paint; and at the conclusion of the work they presented their claim for the excess cost.

The evidence leaves no doubt that the ceilings had not been prepared in the way called for by the specifications, and we are of opinion that this is the reason that the paint specified would not produce a satisfactory job. In order to properly prepare the ceilings plaintiffs would have been required to do a great deal of work, which would have cost more than it cost tbem to use the substituted paint. Instead of doing this, they used the more expensive paint. Its use would not have been necessary if the concrete surfaces had been properly prepared.

Plaintiffs also complain of the requirement of the Project Engineer that two additional coats of oil paint should be applied in the kitchens, utility rooms, and toilet rooms.; but whether this requirement was proper'or not, plaintiffs are not entitled to recover on this account because the proof does not show the cost of this item. Whatever it may have cost is included in plaintiffs’ general claim for the additional cost of using the substituted paint. The cost of this item is not separated from the total excess cost.

Plaintiffs are not entitled to recover. Their petition will be dismissed. It is so ordered.

Jones, Judge; LittletoN, Judge; and Whaley, Chief Justice, concur.

Madden, Judge, took no part in the decision of this case.  