Opinion by
Head, J.,In the opinion filed sur motions for new trial and judgment n. o. v. the learned court below, in paragraphs 3 and 4, — which will be printed in the report of the case, — has demonstrated to our satisfaction that the two really controlling questions were properly disposed of at the trial. The court correctly held that the plaintiff company was not only justified in laying the pipe according to the grade established by the borough engineer, but was in fact required to do so. If a mistake were made and it turned out to be the blunder of the engineer the city’s employee, and not that of the plaintiff company, the responsibility for the consequence of the error could not be visited upon the latter. By the verdict it is established the plaintiff was without fault and the mistake, if any, was that of the defendant.
The same line of reasoning led to a proper submission to the jury of the remaining question concerning the pumping. It clearly enough appears the plaintiff was not responsible for the design or capacity of the pumps. Its duty was to install and put in operation those designed and specified by the city. The jury have said they performed their contract and that the difficulty that subsequently arose was to be attributed to the failure of the city to design and specify pumps of sufficient capacity to do the work. There was strong evidence that when the pumps were so altered as to increase their power and capacity the difficulty disappeared. We conclude, therefore, the two questions referred to were properly disposed of in the court below.
We are unable to perceive any such variance between pleadings and proof as would warrant a reversal of this judgment. The plaintiff claims for alterations in the *396pumping plant designed by council after the original plant had been duly installed, accepted by the city, and fully paid for. This was in no proper sense a bill for “extras” within the meaning of the original contract. It was practically new work. It is not apparent that the city was in any way harmed by the use of the word “alterations” in the statement of claim, instead of some other word or phrase that might have more accurately described the work actually done. It is apparent, too, that under the situation as it arose, the new work called for was in the nature of emergency work. The evidence fairly shows it was actually authorized by council in session and not merely by some administrative officer. We are not to be understood as saying that even if it had been such act there would not be any liability of the city under the circumstances. That question does not arise. Of course, if the action of the council in this respect, after due deliberation and judgment, had been placed upon the minutes of council, these minutes would have been the best evidence of the action taken and should have been produced; but if no minutes were kept of such action, we think it would be impossible to maintain successfully the city could thereby escape liability. There is no statutory obligation in such a case as there sometimes is that the ayes and nays should be taken and the vote recorded in the minutes of council.
Upon a review of the whole case, we are of opinion the record discloses no reversible error.
Judgment affirmed.