Facts
The Nandrò Mountain Railways AG commissioned Gerhard Müller Mechanical Engineering AG to design, deliver and construct a gondola lift. Lump-sum prices were agreed for the two sections. The constructions were to comply with the technical requirements of the SIA (Swiss Society of Engineers and Architects).
Section I, which also includes the intermediate station, was completed in early December and accepted by the Federal Office of Transport (FOT) with a reservation regarding the structural execution of the intermediate station. Despite the withdrawal of the reservation, the intermediate station continued to have defects. The Nandrò Mountain Railways AG had an expert report prepared, which described the construction work as poor and recommended remediation.
The Nandrò Mountain Railways AG informed Gerhard Müller Mechanical Engineering AG that it would withhold CHF 90,000 from the contractual work fee. Since Gerhard Müller Mechanical Engineering AG did not carry out the remediation work, the Nandrò Mountain Railways AG had this work carried out itself and claimed the costs of CHF 135,271.40 minus the remaining debt of CHF 90,000.
Considerations
The Federal Supreme Court decided that the counterclaim of the Nandrò Mountain Railways AG is…