APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 73-103)
Van Dusen, Gibbons and Hunter, Circuit Judges.
VAN DUSEN, Circuit Judge.
This appeal challenges a December 10, 1973, district court judgment in favor of plaintiff and against defendant in the amount of $24,837.00 ($21,979.65, with interest), together with costs, which was entered on the basis of answers by the jury to two of five special questions*fn1 submitted to the jury by the trial judge. The judge had made clear to the jury that if the jurors found that there had been substantial performance of the plaintiff's obligations under the contract described in Question 1, the jury should then determine the amount of the unpaid balance as described in Question 2. The judge then proceeded to charge concerning Question 3, as follows:
"Now, the third question about which I have instructed you is did Alger-Rau incur expense to complete the contract or incur additional expense in the performance of its own contract resulting from increased costs which flowed directly from the failure of Franki Foundation to perform its contract on time? Answer yes or no.
"This is the question about whether or not Alger-Rau had proven by the fair preponderance of the evidence that they are or are not entitled to the $38,000 which they're claiming.
"Now, if you would decide that they were entitled to the $38,000 which they are claiming, then you would have to go to question 4, which is what amount."
When the jury returned its verdict, the transcript reveals that the following took place:
"THE COURT: Ladies and gentlemen of the jury, have you reached a verdict?
"THE FOREMAN: We have, your Honor.
"THE COURT: Would you transmit the verdict to the clerk?
"Now, ladies and gentlemen of the jury, you have answered ...