
    
      Opinion issued May 19, 1983
    
    PRESTON CONTRACTOR’S INC. vs. DEPARTMENT OF HIGHWAYS
    (CC-80-158)
    
      Phillip Gaujot, Attorney at Law, for claimant.
    
      S. Reed Waters, Jr., Attorney at Law, for respondent.
   RULEY, JUDGE:

The only issue before the Court, at this time, is respondent’s defense based upon release. The claim grows out of a construction contract which was performed by the claimant in 1978 and 1979. At the conclusion of performance, the parties were in disagreement as to the quantities of aggregate for which respondent was liable, but claimant apparently agreed that respondent was entitled to a credit of $9,716.63 inasmuch as the final estimate, which it submitted on November 5, 1979, provided:

“The within amount of Minus Nine Thousand Seven Hundred Sixteen Dollars and Sixty Three Cents ( — $9,716.63) set out and shown in this final estimate, being Estimate No. 6 and Final, is hereby accepted and approved by Preston Contractors, Incorporated as full and complete payment and settlement for all sums, claims and monies due and owing or to become due and owing, to it, as the contractor for Project U339-53-0.00, Preston County, West Virginia and the said Preston Contractors, Incorporated does hereby agree that all previous payments shown deducted therein and all amounts retained or deducted under the- provisions of the contract are proper and' correct; subject to the exception and the reservation of the right of the Preston Contractors, Incorporated to file its petition in the West Virginia Court of Claims against the State of West Virginia and the West Virginia Department of Highways within 120 days, from the date of acceptance and approval of this final estimate, . . .” (Emphasis supplied.)

This claim was filed on March 20, 1980, and thereupon, the respondent filed its Special Plea of Release asserting that, since the claim was not filed within the 120-day limitation contained in the exception, the claim was barred. It appears from the record that, although respondent received the final estimate on November 6, 1979, it did not accept or approve it on that date but, rather, promptly on November 7, 1979, returned it to the claimant with instruction. It was not submitted again by the claimant until December 18, 1979, after which it was accepted. The Court is unable to perceive, under those circumstances, any legal basis for making November 5, 1979, the date from which the 120-day limitation should be computed and, accordingly, the Special Plea of Release is overruled.  