Appeal, No. 352, Jan. T., 1957, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1956, No. 12235, in case of Joseph W. Montgomery, trading as Montgomery Construction Company v. City of Philadelphia. Order affirmed; reargument refused March 25, 1958.
Robert H. Arronson, with him Herbert H. Hadra and Maurice Freedman, for appellant.
Joseph V. Furlong, Jr., Assistant City Solicitor, with him James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from the order of the common pleas court sustaining defendant's demurrer to plaintiff's amended complaint in assumpsit.
The amended complaint avers that on July 12, 1955, the plaintiff entered into a contract with the City of Philadelphia in which he agreed to furnish all the labor
and materials to "... do all general construction work in the course of the construction of a Civic Auditorium (more commonly known as The Dell), in Fairmount Park ..." for the price or sum of $256,294. Plaintiff contends that due to the misrepresentations of the city as to the character of the soil involved in the construction upon which he was entitled to rely, the cost of excavation to complete performance was increased by $52,091. He further alleges that after it was discovered that the soil was not decayed mica, as anticipated,*fn1 but rock, he was enticed and induced to continue the excavation by the assurances of city officials that his demands would be duly considered. He also maintains that he is entitled to recover the sum of $20,491.22 for additional work and materials supplied in accordance with orders issued by authorized agents of the defendant. Plaintiff finally claims an additional $15,402.44,*fn2 as the alleged balance due on the original contract price of $256,294. Defendant's preliminary objections to the amended complaint in the nature of a demurrer averred that plaintiff failed to state a cause of action for the following reasons: (a) by the terms of the Notice to Bidders which is incorporated in the contract by reference, defendant city is not responsible for the accuracy of soil conditions inasmuch as plaintiff assumed full responsibility for soil conditions; (b) plaintiff's action insofar as it exceeds the contract limitation and appropriation for same is barred by law; (c) by the terms of the contract, no claim for extras can be allowed unless ordered in writing by the engineer and approved by the recreation commissioner. Plaintiff does not aver that
he has complied with this condition precedent provided for in the contract.
Throughout the complaint, plaintiff alternately bases his claim for relief upon contract or quasi-contract. A consideration of both theories of recovery reveals no basis ...