specially concurring.
I concur in affirmance.
Defendants’ interpretation of the contract that bears upon the meaning of “any substantial defect in workmanship or materials of the structural components of the dwelling” is illusory. A wall is a “structural component.” Treas.Reg. l:48-l(e)(2) of the Internal Revenue Code, Kramertown Company, Inc. v. C. I. R., 488 F.2d 728 (5th Cir. 1974).
“Materials” is “[t]he substance or matter of which anything is made.” Black’s Law Dictionary, 1128 (Rev.Fourth Ed.1968). It is something that goes into and becomes a part of the finished structure. D. H. Overmyer Warehouse Co. v. W. C. Caye & Co., 116 Ga.App. 128, 157 S.E.2d 68 (1967); Interstate Equipment Co. v. Smith, 31 N.C. App. 351, 229 S.E.2d 241 (1976).
“A defect is defined to be an imperfection, flaw, blemish, or fault.” Galloway v. City of Winchester, 299 Ky. 87, 184 S.W.2d 890, 893 (1944). Black’s Law Dictionary, p. 506, defines a defect as “ * * * a deficiency in something essential to the proper use for the purpose for which a thing is to be used.” McMinn v. Damurjian, 105 N.J.Super. 132, 251 A.2d 310 (1969).
Eliott S. Peterson Co. v. Parrott, 129 Me. 381, 152 A. 313, 315 (1930) says:
* * * If “the paint on the automobile was not in good condition and was not properly applied,” defective workmanship or material or both was plainly indicated, for which defendant would be entitled to damages in recoupment.
It would be difficult to conceive of defective material used in construction that would not involve defective workmanship in one way or another. Benson v. Denny, 14 S.W.2d 456 (Mo.App.1929).
Under the real estate contract, defendants agreed to remedy any deficiency, imperfection or flaw in the Tex-Cote placed on the exterior walls of the house that defendants sold to plaintiffs. This exterior cover was defective in workmanship and materials. Tex-Cote was deficient in something essential for the purpose for which it was to be used. The Tex-Cote was peeling off in two-foot sheets. It was defective. For defendants to argue that this peeling and cracking of Tex-Cote, which was “paint with an aggregate in it,” was not a “substantial defect in workmanship or materials of the structural components of the dwelling” is a poor way to seek an escape hatch from liability. “Home is where the heart is.” It is the most popular and enduring of all earthly establishments. To put on exterior coating that destroys its appearance does not find any sympathy in the concepts of justice and the law in the courts.
Defendants rely on 440 East 102nd Street Corporation v. Murdock, 285 N.Y. 298, 34 N.E.2d 329 (1941); Hardy v. Montgomery Ward & Co., 131 Ill.App.2d 1038, 267 N.E.2d 748 (1971); Baxter v. Ill. Police Federation, 63 Ill.App.3d 819, 20 Ill.Dec. 623, 380 N.E.2d 832 (1978).
Murdock held that stuccoing of a building did not constitute a “structural alteration.” Of course not. We are not involved with “structural alterations.” Hardy and Baxter held that in a landlord-tenant relationship where a lessee agreed to make all repairs, and the plaster fell from the ceiling, the landlord had no duty to make non-structural repairs. Plaster attached to a ceiling is non-structural. The falling of plaster was the result of “a defect in workmanship and materials of the structural components of the building,” but the tenant agreed to repair this defect.
In a seller-purchaser real estate contract, defendants, as sellers, stand in the shoes of the tenant. Defendants agreed to repair the defect. Defendants cannot escape liability.