
    Standard Accident Insurance Company, assignee of Calabro Construction Co., Inc., complainant-appellant, v. Township of Hamilton, a municipal corporation, defendant-respondent-cross-appellant, and Spiniello Construction Company, defendant-appellant.
    [Submitted October term, 1941.
    Decided January 29th, 1942.]
    
      
      Messrs. Schotland, Harrison & Schotland (Mr. John E. Toolan and Mr. Louis Auerbacher, Jr., of counsel), for the defendant-appellant Spiniello Construction Company.
    
      Messrs. Minton & Dinsmore (Mr. H. Collin Minton, Jr., of counsel), for the defendant-respondent-cross-appellant, Township of Hamilton.
   Pee Cueiam.

The appellant contractor maintains that it is entitled, under the contract, to compensation “over and above the lump sum bid for sheathing ‘furnished and placed’ where ‘unstable foundations’ were encountered in the construction of the sewer,” particularly as to that portion assertedly “ordered to be left in place by the engineer;” and the cross-appellant alleges error in the dismissal of its counter-claim for the recovery of $5,350 “as liquidated damages assessable under the contract” by reason of the non-completion of the construction work within the stipulated time.

We concur - in the conclusions of the learned Vice-Chancellor in both these matters; and the decree is accordingly affirmed.

Granting that the contract provides for additional compensation “if the item of sheathing left in place was required to be increased, because of unstable foundation encountered,” complainant-appellant has not sustained the onus probandi in this regard.

As to appellant’s contention that there is no factual basis for the Vice-Chancellor’s finding as to “the cost, at the site, of new lumber for sheathing,” it suffices to say that that is in no sense a determinative circumstance.

For affirmance — -The Chief-Justice, Paekee, Case, Donges, Hehee, Pbeseie, Postee, Colie, Deae, Wells, WolfsKeil^ Raffeety, Hague, Thompson, JJ. 14.

For reversal — None.  