On appeal from the Supreme Court, Essex Circuit.
For the appellant, Robert H. Doherty.
For the respondent, Felix Forlenza.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The plaintiff-respondent entered into a parol contract with the defendant-appellant to excavate,
lay sewers and construct an extension of Caldwell road, Lincoln Park, in Maplewood, according to plans and specifications of E. R. Halsey, engineer. The consideration was based upon unit prices for which plaintiff then was performing or had executed a like work on adjoining property of one Sirlyn. Payments were to be made monthly upon the certificate of Halsey, the engineer, to eighty per cent. of the amount of such certificates.
The agreement was entered into April 1st, 1926. A monthly certificate of the engineer was issued May 26th, 1926; payment thereof was not made; plaintiff discontinued work and brought suit for the amount of the unpaid certificate on May 21st, 1929.
The complaint consists of three counts but we are only concerned with the first because at the trial the second and third were either abandoned or stricken out.
"1. On or about April 1st, 1926, * * * plaintiff agreed to excavate, lay sewers, fill and construct Caldwell road * * * according to the plans and specifications of E. R. Halsey, engineer, upon defendant's promise to pay to plaintiff eighty per cent. of the work completed each month upon presentation to defendant of the engineer's statement certifying the amount of work completed.
"2. Plaintiff had in all things performed said agreement during the first month of operation and did present the engineer's certificate to defendant, &c., * * *.
"3. There is now due and owing plaintiff $2,059.92 which defendant has refused, neglected and failed to pay in whole or in part, although requested to do so.
"4. Plaintiff demands as damages $2,059.92 with interest and costs."
The defendant answered by admitting all the allegations contained in paragraph 1 of the first count denying all other allegations of the complaint and pleading four separate defenses and a counter-claim.
The separate defenses are:
1. That plaintiff failed to perform and carry out ...