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Constr., Inc., is correct as a matter of law, it should not be
applied in the setting of this case.
Here again, the focus of the majority is too limited. If
petitioner had been hired merely to provide the service of
overseeing the pouring of liquid concrete and/or finishing semi-
hardened concrete, the majority’s conclusion would have a more
rational and sounder basis. Those, however, are not the facts of
this case. As more fully explained, supra, petitioner entered
into a contract to construct sidewalks, driveways, and
foundations to certain specifications. At the end of
petitioner’s performance of labor (which represents about 34
percent of the total costs) the materials had not been “consumed”
or “used up”. Indeed, the materials had been constructed into
the very item (product) that petitioner contracted to construct.
At that point, legal principles may hold that the sidewalks or
driveways then belonged to the owner of the real property, but
they most certainly had not been consumed or used up in the
performance of a service.
The holding in Galedrige Constr., Inc., is not in accord
with established case precedent. That holding is that “the
ephemeral quality of the emulsified asphalt bars its inclusion in
the class of goods or commodities held for sale as
‘merchandise’”. The Galedrige Constr., Inc., holding is premised
on the fact that something that will lose value in a short time
or will be difficult to “inventory” cannot be merchandise or
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