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Finocchiaro v. D''Amico

Decided: May 11, 1950.

A. FINOCCHIARO AND C. FINOCCHIARO, PLAINTIFFS-APPELLANTS,
v.
CAMILLO D'AMICO, DEFENDANT-RESPONDENT



Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.

Donges

This suit was instituted by plaintiffs to recover damages suffered by reason of an alleged breach of contract.

Defendant and plaintiffs entered into a written contract whereby defendant agreed to furnish the necessary labor and materials for the construction of a store and dwelling for $14,400. The building was to be constructed pursuant to plans and specifications which were made part of the contract. The building was to be substantially completed by March 1, 1948.

The commencement of the work was delayed, because it became necessary to remove an existing structure from the situs of the new building. The work was delayed an additional six weeks because of inclement weather.

According to the terms of the agreement, plaintiffs were to pay, monthly, seventy per cent of the value of the labor and materials incorporated in the building and of the materials suitably stored at the site thereof.

Plaintiffs had paid, up to the time work was stopped, a total of $8,100 to defendant. The architect who made the

plans, and whose job it was to supervise the building, testified that this amount was much greater than the amount which plaintiffs were required to pay. It was his opinion that not more than 25% of the building had been completed when work was stopped.

On June 21, 1948, the architect, concluding that the defendant had failed to render a sufficiency of properly skilled workmen and proper materials, as required by the contract, so notified the plaintiffs, and a notice of termination of the contract was served on defendant.

The plaintiffs then proceeded to complete the building and hired the architect as their agent. There was a total expenditure in completing the building of $16,671.85, which together with the $8,000 paid to the defendant resulted in an expenditure of $24,671.85. There was an additional $100, which plaintiffs claimed was loaned to defendant. The defendant did not deny this.

The defendant contended at the trial that the original agreement was abandoned by the parties, and a new verbal agreement for time and material was substituted therefor.

The jury returned a verdict of $100 in favor of plaintiffs, and plaintiffs appeal from the judgment rendered on the verdict.

There are several points raised on this appeal, but the most important one concerns the sufficiency of the evidence to sustain the defense of a new verbal agreement. Parties to a written contract may agree to abandon the contract and substitute a new one in its place, and the new agreement is valid if there is sufficient consideration for it. Levine v. Blumenthal , 117 N.J.L. 23 (Sup. Ct. 1936). However, the burden of proving such a defense rests upon the person asserting it. It is ...


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