Blair House South v. All Florida Paint Store, Inc.

BARKDULL, Judge. A condominium association decided to have the buildings of the condominium painted. Pursuant to this purpose it went to All Florida Paint Store, Inc. to purchase the paint and it was determined to use, upon All Florida’s recommendation, paint manufactured by Coronado Paint Company, Inc. Subsequent to the paint being applied, the association was unhappy with its appearance and commenced an action for damages alleging breach of express warranty, of implied warranty of fitness and of implied warranty of merchantability. The trial court directed a verdict on the first two causes of action and submitted the action to the jury on the alleged breach of the implied warranty of merchantability. The jury returned a verdict in favor of the defendants and this appeal ensued. The defendant’s defense in part was that the paint was improperly applied. After defendants rested, the plaintiff sought to offer rebuttal testimony in “regards to the defendants’ witnesses that this paint was not properly applied”. The trial court refused to permit the use of rebuttal witnesses. We find this to be error.1 The defense as offered was in the nature of a confession and an avoidance which was a recognition that there was a problem of discoloration after the paint was applied but that this was caused by employees of the plaintiff who improperly applied the paint. With this defense the plaintiff should have been permitted to adduce evidence on rebuttal that the paint was, in fact, properly applied. Atlantic Coast Line Railroad Company v. Watkins, 97 Fla. 350, 121 So. 95 (1929); Seaboard Air Line Railroad Company v. Myrick, 91 Fla. 918, 109 So. 193 (1926); Ahearn v. Florida Power and Light Company, 113 So.2d 751 (Fla. 2d DCA 1959) quashed on other grounds Florida Power and Light Company v. Ahearn, 118 So.2d 21 (Fla.1960); 32 Fla.Jur., Trial § 45. Therefore the final judgment on the jury verdict be and the same is hereby reversed and the matter is returned to the trial court for a new trial. Reversed and remanded. Footnotes [1] On the state of the evidence at the time of the directed verdicts on the first two counts, we find no error in these rulings by the trial court.