Appeal, No. 126, Jan. T., 1964, from judgment of Court of Common Pleas of Montgomery County, Sept.T., 1956, No. 80, in case of Verona Construction Co., Inc. v. Lower Merion Township. Judgment affirmed.
Edmund B. Spaeth, Jr., with him John E. Forsythe, Township Solicitor, and Wright, Spencer, Manning & Sagendorph, for appellant.
Justin G. Duryea, with him Duryea & Kuen, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
The Verona Construction Co., Inc., instituted an action of assumpsit against Lower Merion Township in Montgomery County, to recover a balance claimed to be due as the result of the construction of branch and intercepting sewers and a force main line for the township. Verona collected 90% of the money for the work it performed. Payment of the remaining 10% was withheld by the defendant township on the basis that because of deficiencies in the plaintiff's work another contractor, Abbonizio & Sons, Inc., had to be engaged to complete Verona's work.
The township further claimed that the plaintiff had not furnished a release of liens, had not settled all claims for damages and had not obtained a final written certification from the engineer as required by the contract before final payment could be made.
A stipulation was entered into between the parties whereby (1) the plaintiff's claim was amended from $50,758.48 to $41,072.58 (rounded out to $41,000); (2) it was agreed that the township had paid Abbonizio $26,453.13 to correct and/or complete plaintiff's work so that if there had been a trial a jury's verdict in favor of plaintiff would have been $41,000 less $26,453.13 or $14,546.87, plus interest of $5,040, or a total verdict of $19,586.87.
The stipulation then provided that "The cause shall forthwith be argued ... upon the following issues ...
"Is written acceptance of the plaintiff's [Verona's] work by the Engineer within the terms of the contract a condition precedent to the plaintiff's recovery?
"If so, does the letter of March 20, 1957, fulfill the said condition precedent?"
The issues being so limited, it was not necessary for the court below to introduce the issue of plaintiff's substantial performance and we thus need ...