203 Pa. 139 | Pa. | 1902
Opinion by
When this case was here before it was decided that the contract under which the defendant’s waterworks were constructed did not give to the engineer in charge the power to determine whether certain amounts agreed .upon in advance as liquidated damages for delay in completion should be deducted from the plaintiff’s claim. See 200 Pa. 280. At the second trial this question was submitted to the jury. Both parties were in default under the terms of the contract, the plaintiff in not completing the works in the time fixed, and the defendant in not making payments promptly as the work progressed. The plaintiff claimed also an additional time allowance under the terms of the contract because of an increase in the quantity of work required..
The main contention was as to the responsibility for a delay of three weeks. At the time fixed for the commencement of the work, the borough had not succeeded in selling the bonds it had issued to provide the means of payment. The plaintiff began at once the building of an impounding well, but delayed ordering the pipe and pumps because the bonds had not been sold. If this delay was the sole cause of the noncompletion in time, the responsibility would rest with him. He took the chance of prompt payment when he entered into the contract, and was not justified in delaying the work because the borough did not have the money in its treasury in advance of the time it was due him. But the borough was in default in not making the first and second payments provided for by the contract. After its failure to pay the plaintiff might well hesitate to order expensive materials and machinery, and to the extent to which the delay in the completion of the work was due to its default, the plaintiff was relieved of responsibility. This question together with that of substantia] compliance was fairly submitted to the jury, and we find nothing in the assignments that requires a reversal.
The judgment is affirmed.