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D''Agostino v. Schaffer

Decided: June 25, 1957.

ROBERT D'AGOSTINO, ET AL., PLAINTIFFS-RESPONDENTS,
v.
FRANK SCHAFFER, DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

This is an appeal from a County Court judgment entered in plaintiffs' favor in an action to recover for work performed for and materials furnished to defendant under an oral agreement.

The complaint alleged that on February 1, 1956 defendant engaged plaintiffs to erect a brick fireplace and to install "Ston-o-fect" on the front of his home in Pennsauken, N.J., at a price of $1,200; that plaintiffs performed the work and furnished the materials, but defendant has refused to pay the amount due. The answer denied these allegations generally and by way of separate defense stated that any contract plaintiffs had with respect to the work was with the Acra Construction Co., Inc., and not with defendant. An amended answer set up the additional defense that the "Ston-o-fect" furnished was defective and unsatisfactory; that defendant thereupon complained to Acra, which in turn ordered plaintiffs to repair the defects; that plaintiffs failed to do so, with the result that another contractor was employed, who tore out and replaced the "Ston-o-fect."

Defendant served interrogatories. The answers were prepared and signed by plaintiffs' attorney and verified by plaintiffs themselves as true and correct in all respects. The following interrogatories and answers are noteworthy:

"2. Who were the parties to the said contract?

Answer: Ralph Schaffer and Don A. DiLuigi, agent * * *.

7. Give the exact address of the location where the said contract was made.

Answer: Acra Construction Co., Pedricktown, New Jersey.

8. Give the names and addresses of the persons who were present at the time of the making of the said contract.

Answer: Ralph Schaffer, and Don A. DiLuigi * * *.

9. Give the names and addresses of all persons having knowledge relevant to the ...


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