Opinion by
Mr. Chief Justice Mitchell,Appellant being under obligation to keep the street pavement within its right of way in repair received a notice to repave the same with asphaltum within thirty days,' and, paying no attention to the matter, the city did the work and now sues for the cost.
The jury have found that the pavement on the parts of the streets in question was out of repair, and it is - not contested •that the new pavement directed was within the authority of the city under the ordinances to require when the city itself should pave the rest of the streets in the same manner. But appellant makes defense on two points, first, that under the ordinance its obligation was only to repave its portion at the time the city was repaving the rest, whereas by the notice in the present case it was required to do its work in thirty days, though the city did not intend and in fact did not do its portion until several months later. Secondly, that the ordinance •having specified that the asphalt should be equal in quality to ■Alcatraz Trinidad or Bermudez, appellant in electing to let the city do the whole work had a right to rely on the competition between .these three'kinds.to secure a moderate price, etc., *135whereas after the notice to appellant the city had changed the standard of asphalt by throwing out Alcatraz and limiting the competitive bids to the other two kinds.
Either of these grounds would have been good as a basis of defense, at least pro tanto to the extent of injury to appellant, but neither, nor both together, amounted without more to a bar to the action. It was necessary for the defendant to go further and show some loss or disadvantage to itself. For all that appears the time may have been the most advantageous and the materials the least expensive that could have been selected. The provision of the ordinance that the appellant might be called upon to repair at the time the city should be doing its part was not a strict limit on the city’s power as if it was an acceptance of an option or the demand of a debt due on a day certain. It meant that there was to be reasonably concurrent action by the two bodies in the improvement which it was their joint duty to make. So, too, the reduction of the kinds of asphalt from three to two was not in itself such an entire change of the plan of paving as to require a new notice to appellant and a new opportunity to make an election. Under the ordinance the primary duty of the appellant was to do the repaving itself upon receipt of notice. But it chose to avail itself of the stipulated alternative and let the city do the whole. It might have raised the objections then, but it did nothing. Thereby it accepted the provision that it should repay the city the cost of its share of the work unless it could show that it had been subjected to loss by the city’s departure from the letter of the ordinance. No attempt was made to do this. The principles applicable are fully discussed in the recent analogous case of City of Philadelphia v. Hood, 211 Pa. 189, which sustains the action of the court below.
Judgment affirmed.