By: Alexander A. Miuccio Thomas H. Welby Published: February 2009

Court Rules Owner Waived Contract Requirement for Written Extra Work

When the contract documents require changes and extras to be in writing, courts generally hold that a contractor who fails to obtain a written change order or extra prior to performing the change or extra will not be paid for that work. In some instances however, courts have allowed a contractor to recover, regardless of the existence of a provision in the contract documents requiring changes and extras to be in writing. 

In the case of B. Reitman Blacktop, Inc. v. Missirlian, a court allowed the contractor to recover for extra work despite a standard contract provision requiring modifications to the contract to be made in writing.

Background 

A paving contractor entered into a written agreement with a homeowner to install a driveway. The agreement stated that the contract price was to be determined by the final square footage of the installed driveway. The agreement also contained a provision requiring that modifications to the agreement must be in writing to be enforceable. During the course of construction, the homeowner requested the installation of Belgium blocks on part of the driveway. The written agreement did not address the installation of Belgium blocks. When the contractor sought to recover additional moneys from the homeowner on account of the increased costs associated with the Belgium block, the homeowner refused, and the contractor sued. 

According to the homeowner, it only had to pay for the end square footage of the driveway, in accordance with the pricing set forth in the parties’ written agreement. The contractor, however, argued that the homeowner verbally requested the Belgium block upgrade and was responsible for paying for the added costs associated with the installation. The trial court ruled in favor of the contractor and the homeowner appealed. 

Decision

Decision The appellate court upheld the trial court’s decision. In so doing, the court stated that normally the law bars oral modifications to a contract which expressly provides that modifications must be in writing. However, the court also noted that an exception applies when there is part performance by the party disputing the existence of the subsequent agreement. In this case, the homeowner was willing to include the square footage of the Belgium block in the final square footage calculation of the driveway. In the court’s eyes, this provided clear evidence that a later agreement for the use of Belgium block was entered into between the parties. Since there was clear evidence that the homeowner requested a Belgium block upgrade, and the contractor supplied the Belgium block in response to the request, the court awarded the contractor its increased costs associated with the installation. 

Comment 

Where an owner consents to upgrades and modifications without written authorization, the consent may constitute a waiver of the written authorization requirement. The holding in this case, however, is an exception to the rule of law that a contract clause requiring written authorization for changes and extras is valid and enforceable. There is much more judicial support for the general rule that a contractor who fails to obtain the required written authorization for changes or extras will not be paid for that work. The prudent contractor should refuse to perform any changes or extra work until it receives a written order in the form specified by the construction documents. 

© Welby, Brady & Greenblatt, LLP.
All Rights Reserved. By visiting this site, you agree to our Terms of Service. For more information please read our Privacy Policy Attorney Advertising