Spearin's teaching concerning the effect of detailed specifications has been extended to situations in which the "defect" in the specifications was the naming of materials that themselves had a latent defect — including bad bricks. See Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So.2d 548 (Fla.App. 1970). Also, Indiana, whose law applies in this diversity suit, has long accepted the notion that detailed specifications imply a warranty.
See Georgiades v. Glickman, 272 Wis. 257, 264-65, 75 N.W.2d 573, 577 (1955). The towns have made factual allegations that if proved would support, though not necessarily compel, see, e.g., Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So.2d 548 (Fla.App. 1970), an inference that Scotty guaranteed that the incinerator would pass muster with the Wisconsin Department of Natural Resources. The allegations may or may not be true but the towns are entitled to an opportunity to prove them.
Finally, the participation of Winthrop and Gordon in the substitution of stainless steel for copper pipes is most significant. See Wisconsin Red Pressed Brick Co. v. Hood, 67 Minn. 329, 69 N.W. 1091 (1897); Wood-Hopkins Contracting Co. v. Masonry Contractors Inc., 235 So.2d 548, 61 A.L.R.3d 786 (Fla.Dist.Ct.App. 1970). See also Mattos, Inc. v. Hash, Md., 368 A.2d 993 (1977); Erdman v. Johnson Bros. Radio Television Co., 260 Md. 190, 271 A.2d 744 (1970).
To the extent Weddle is seeking to allege a separate breach of contract, Weddle must identify the relevant portion of the contract breached. See e.g., Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So. 2d 548, 552 (Fla. 1st DCA 1970). Accordingly, the breach of express warranty claims against Santana Construction, Superior Stucco, R D Thiel, and Farris Gypsum Floors are DISMISSED WITHOUT PREJUDICE, with leave to amend.
We believe the more reasonable conclusion, therefore, is that the contract terms intended to make Dawson liable for deficiencies in materials and work furnished by Roberts and Copeland. Dawson and USFG further insist that because the architect, in substance, specified Boncoat they should be exonerated from liability under the contract and they cite Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So.2d 548 (Fla.App. 1970) and Fanning Doorley Construction Co., Inc. v. Geigy Chemical Corp., 305 F. Supp. 650 (D.R.I. 1969) for that proposition. From our examination of the record we conclude that appellants are correct in their assertion that the architect did, in substance, specify Boncoat. This is so because the record discloses testimony by Mr. Ellis, a member of the architectural firm, that the properties of the catalyzed cementitious or epoxy matrix listed under Division 16 (b) were copied from the Boncoat brochure. In addition, there is testimony that the architect approved the shop drawings submitted by Roberts which indicated the use of Boncoat. Thus the architect's copying of the matrix' properties into the "specifications" from the Boncoat brochure, coupled with the approval of the shop drawings indicating the use of Boncoat, were tantamount to the architect requiring Boncoat in his "specifications."
Consequently, if a contractor is directed to use a particular brandname product which cannot perform as specified, the contractor should not be held liable if the product fails to perform or is defective. See Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So.2d 548 (Fla. 1st DCA 1970). In contrast, however, a contract provision calling for the quality of the product to be the equivalent of a specific manufactured product is a performance specification involving no implied warranty, unlike a design specification, which "set[s] forth in precise detail the materials to be employed and the manner in which the work [is] to be performed."
Because the record contains competent evidence that Gibson performed its contractual obligations in a workmanlike manner and in accordance with manufacturer's instructions, we find no error in the trial court's decision that defects in the exterior insulation system did not constitute a breach of appellee's written warranty. See Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So.2d 548 (Fla. 1st DCA 1970). Appellant next contends that the court erred in ruling in favor of appellee when the prerequisites for final payment had not been met. Appellant argues that it was not required to pay Gibson until the work had been approved by the architect and owner, and final payment had been received by Perry from the owner.
There are no Indiana cases, and we find only one case on point among decisions from other jurisdictions. The court in Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., (Fla.App. 1970) 235 So.2d 548, concluded that a builder could not be held liable on a negligence theory when the insufficiency resulted from "a latent defect in the [exterior] brick not discernible by the exercise of reasonable diligence." Id. at 552.