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Hackensack (D) contracted with Terminal (P) to perform excavation for a sewer line project. Bogert Childs, an engineering firm, was to approve the work before any payments became due. Childs unreasonably withheld approval for P. P sued for damages. The trial court instructed the jury that only if Childs was an agent of D could D be held liable for any fraud or misconduct on the part of Childs.

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