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WYMARD v. MCCLOSKEY & CO.

May 13, 1963

N. L. WYMARD and George L. Stark, Receivers of Kemmel and Co., Inc.
v.
McCLOSKEY AND CO., Inc.



The opinion of the court was delivered by: WOOD

We have before the Court an action by the Receivers of a bankrupt painting contractor to recover money allegedly owed by the McCloskey and Co., Inc., to Kemmel and Co., Inc., *fn1" for painting work performed by the bankrupt on a housing project at Fort George G. Meade, Maryland in 1958-1959.

The gist of the action concerns whether this work was performed on a cost-plus basis after great difficulties were encountered by Kemmel in the course of the contract.

 We make the following Findings of Fact and Conclusions of Law:

 1. Kemmel is a painting contractor incorporated and existing under the laws of the Commonwealth of Pennsylvania.

 2. McCloskey is a general contractor incorporated under the laws of the State of Delaware.

 3. On June 27, 1957, the United States, the Fort George G. Meade Defense Housing Corporation, Number I, and Anthony P. Miller, Inc., entered into a contract to construct 1000 housing units at Fort George G. Meade, Maryland. *fn2"

 4. Anthony P. Miller, Inc., the eligible builder, subcontracted the construction work to McCloskey and by resolution of its board of directors recognized McCloskey as principal subcontractor with complete responsibility for the work.

 5. On July 15, 1957, McCloskey and Kemmel entered into a contract -- the subject of this suit -- whereby Kemmel agreed to perform all the painting work on the 1000 housing units. *fn3"

 6. The original consideration agreed upon between the parties was $ 290,000.00, and actual work was begun by Kemmel in May of 1958. This contract was subject to the same completion date of May, 1959, contained in the housing contract.

 7. In the fall of 1958, Kemmel ran into difficulty in painting the interiors of a group of houses known as the 49-B houses. The plaster walls of these houses were water sensitive to the specified latex paint which had a water base.

 8. This paint was approved by the Government and prepared by outside manufacturers for use by Kemmel.

 9. When two coats of this paint were applied, the outcome was splotchy and blurred. The brush marks were magnified many times and it produced a distorted finish.

 10. This condition prevailed throughout the project and was attributable to the quality of the plaster which resisted the applications of many varieties of paint which were tested repeatedly to find a satisfactory brand to paint the interiors.

 11. McCloskey examined the buildings and ordered Kemmel to sandpaper the plaster walls and apply a spackling compound to produce an even surface. The sanding and spackling of these newly plastered ...


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