Erbeck v. Meadville & Conneaut Lake Traction Co.

Citations

• 237 Pa. 121
• 85 A. 82
• 1912 Pa. LEXIS 900

Syllabus

<p>Contract — Construction contract — Street railway — Acceptance-of worh by engineer — Evidence.</p> <p>In an action to recover for work and materials furnished in the' construction of a railway, it appeared that the contract provided that the contractors should be entitled to payment in full ten days after the work was completed, provided that the work should be accepted by the railway company’s engineer “and that he would certify thereto in writing.” The statement of plaintiff’s claim, though not demurred to, contained no averment that the work done had been accepted by the engineer, or that any certificate from him had ever been requested, or that this portion of the contract had been waived. The plaintiff offered in evidence a paper furnished at the request of plaintiff by the president of the defendant, which as explained by the letter accompanying it was a “list of moneys paid out for you, and to you on your contract,” with this statement following: “It is my intention to re-cheek</p> <p>the entire matter so as to make sure that all of the figures are correct.” The purpose of the offer as stated was to show an esti-mate by defendant’s engineer in favor of plaintiff amounting to a sum stated. There was no offer to follow up the paper by evidence supplementing it in any way; and there was nothing in the paper itself, or in the letters transmitting it which would warrant an inference , that the construction of the road had been completed under {he contract, or that it had been accepted by the engineer in charge. Held, (1) that the paper offered in evidence was properly rejected and (2) that a nonsuit was properly entered;</p>