On appeal from the Supreme Court.
For the appellant, Quinn, Parsons & Doremus.
For the respondent, Enoch A. Higbee.
The opinion of the court was delivered by
WALKER, CHANCELLOR. This was an action at law in the Supreme Court for damages. The defendant denied liability and the case was tried before Circuit Court Judge Sooy and a jury. The trial court struck out the first and third counts of the complaint and ordered a nonsuit as to the second and fourth counts, and directed that a general verdict be entered in favor of the plaintiff and against the defendant
upon the fifth count in the sum of $3,035.08. Judgment was thereafter duly entered for the directed verdict, with costs. The plaintiff appeals to this court from the whole of the judgment entered in the cause in the court below. Undoubtedly it did not intend to appeal from the directed verdict, but on the ground that it was entitled to recover a larger sum; and assigns as grounds of appeal (1) the granting of the motion to nonsuit on the second and fourth counts of the complaint, and (2) the striking of the first and third counts.
The plaintiff-appellant entered into a contract with the county of Atlantic for the building of a bridge spanning Inside Thorofare in Atlantic City, known as Albany avenue bridge, taking down the entire superstructure of the then present bridge, with certain piers, supports, &c.; and agreed to complete the entire work on or before the expiration of two hundred working days after the approval of working contract and bond, as provided in the specifications. The contract was made and dated December 30th, 1926, and required the work to be begun within ten days thereafter. Certain specifications of forms were submitted to prospective bidders, including the plaintiff, who secured the award of contract for doing the work. Among the specifications for bids were the following:
"Prospective bidders are hereby directed to carefully read and consider the plans and specifications and to visit the site of the work so that they may thoroughly familiarize themselves with the conditions, particularly the difficulties, existing at the site; no consideration will be given to any claim that a bid was made without full comprehension of the conditions to be encountered.
"The contractor must assume all risks and responsibilities for accidents and damage of any kind whatsoever during construction of the work, and he must sufficiently barricade the work at all times, with proper lights at night, until final completion of it. Any loss or damage, arising from unforeseen obstructions or difficulties encountered in the prosecution of the work, must be sustained by the contractor."
And in the form of a bidder's blank submitted along with the specifications, the bidder, including the plaintiff, was required to certify, and plaintiff-appellant did certify that:
"Having carefully examined the specifications and all plans covering the proposed reconstruction of the bridge spanning Inside Thorofare in Atlantic City, known as the Albany avenue bridge, upon which bids have been invited by advertisement to be submitted to you on December 15th, 1926, and having carefully studied the site of the work to ascertain the conditions, particularly the difficulties, existing there, the undersigned will provide all necessary machinery, tools, apparatus and other means of construction, will do all work and furnish all ...