BRIAN CONSTRUCTION & DEVELOPMENT CO. v. BRIGHENTI

Docket Not Available

176 Conn. 162 (1978) | Cited 8 times | Supreme Court of Connecticut | September 19, 1978

The plaintiff, a contractor, brought thisaction for damages against the defendant, asubcontractor, alleging that the defendant hadbreached a contract under which he had promised

[176 Conn. 163]

     to perform certain excavation work for theplaintiff. The defendant counterclaimed. Thecourt rendered judgment for the defendant on theplaintiff's claim and for the plaintiff on thedefendant's counter-claim. From the judgment forthe defendant, the plaintiff has appealed.

The relevant facts as found by the court are asfollows: In early 1968, Joseph E. Bennett, doingbusiness as Joseph E. Bennett Company, enteredinto a contract with Seymour B. Levine (herein-afterthe owner) for the construction of a postoffice building in Bristol. Shortly thereafter,Bennett assigned the contract to the plaintiff,who, on October 10, 1968, entered into a writtensubcontract with the defendant. Pursuant to thatcontract, consisting of a standard subcontractagreement plus specifications, the defendantagreed to perform "all Excavation, Grading, SiteWork, Asphalt Pavement, Landscaping, and ConcreteWork" and "everything requisite and necessary tofinish the entire work properly." In return, thedefendant was to receive $104,326.

The defendant commenced excavation of thepremises on October 15, 1968, at which time hediscovered considerable debris below the surface,consisting in part of concrete foundation walls,slab floors, underground tanks, twisted metals andvarious combustible materials. Apparently, thediscovered walls and floor had been part of thebasement of an old factory which had previouslybeen located on the site. The plaintiff hadpreviously taken test borings of the excavationsite, the results of which had been given to thedefendant prior to the execution of thesubcontract. The defendant had relied uponthose results, although they proved

[176 Conn. 164]

     to be grossly inaccurate. Neither party had beenaware of the rubble and, consequently, its removalwas not specifically called for by the plans andspecifications included in the subcontract, norwas the cost of its removal included in thecontract price. Nonetheless, the existence of therubble necessitated excavation beyond the depthanticipated in the plans and specifications andthe post office building could not be constructedwithout its removal.

A provision of the general contract between theowner and Bennett provided that "no extra work orchange shall be made unless in pursuance of awritten order from the owner signed or counter-signedby the Architect, or a written order fromthe Architect stating that the owner hasauthorized the extra work or change." A separateprovision of the contract specified that eachsubcontractor was to make all claims for extras"to the Contractor in the manner provided in theGeneral Conditions of the Contract . . . for likeclaims by the Contractor upon the owner." Aprovision of the sub-contract reiterated thisrequirement, adding that "no extra work or otherchange will be commenced by the Sub-Contractorwithout the Contractor's prior approval inwriting." Similarly, both contracts includedprovisions under which the subcontractor agreedto be bound to the contractor by the terms ofthe general contract and to assume toward thecontractor all those obligations which he, underthe contract, assumed towards the owner.

Upon discovery of the unanticipated debris, theplaintiff notified the architect, the attorney forthe owner, representatives of the Bristol redevelopmentagency, which owned the building site, and representativesof the postal service of the existence

[176 Conn. 165]

     of the rubble.1 All agreed that removal ofthe rubble was requisite for completion of thebuilding, yet none would issue writtenauthorization for its removal.

On October 21, 1968, the defendant ceasedworking on the excavation site and notifiedthe plaintiff of his refusal to continue.Subsequently, the defendant offered to completethe subcontract if the plaintiff would have theunsuitable material removed. The plaintiff refusedthis offer. He then ordered the defendant toremove the rubble as part of "everything requisiteand necessary" under the sub-contract. Thedefendant refused. When the plaintiff wasconfronted with this situation, and no one wouldtake the responsibility to authorize the removalof the rubble, although its removal was necessaryfor the contractor to complete his contract, hechose to enter into a further agreement withthe defendant for work not included in thesubcontract. The plaintiff and the defendantorally agreed that the defendant would be paid hiscosts for removing the unanticipated rubble, plus10 percent. By letter dated November 7, 1968, theplaintiff confirmed this oral agreement. Althoughrequested in the letter to do so, the defendantfailed to sign and return a copy of the letter tothe plaintiff. Nonetheless, the defendant returnedto work, continuing until about November 13, 1968,at which point he left the job, refusing to returndespite the plaintiff's request that he completethe work. The plaintiff completed his own contractwith the owner, suffering, as a result of thedefendant's abandonment, considerable damages.

[176 Conn. 166]

On appeal to this court, most of the plaintiff'sclaims of error focus upon the court's conclusionthat, by interpreting the terms of the generalcontract as being incorporated into thesubcontract, the issuance of a written extra workorder signed by the architect was a conditionprecedent to the defendant's obligation to removethe rubble. The plaintiff's final claim, however,raises the issue of whether the oral agreementbetween it and the defendant constituted a validagreement obligating the defendant to remove theunexpected rubble. Because we find this issue tobe dispositive of the appeal, the other claimsneed not be specifically addressed.

It is an accepted principle of law in this statethat when a party agrees to perform an obligationfor another to whom that obligation is alreadyowed, although for lesser remuneration, the secondagreement does not constitute a valid, bindingcontract. See, e.g., Dahl v. Edwin Moss & Son,Inc., 136 Conn. 147, 69 A.2d 562; Gruber v. Klein,102 Conn. 34, 127 A. 907; Warren v. Skinner,20 Conn. 559. "The basis of the rule is generallymade to rest upon the proposition that in such asituation he who promises the additionalcompensation receives nothing more than that towhich he is already entitled and he to whom thepromise is made gives nothing that he was notalready under legal obligation to give. 1Williston on Contracts, 130." Blakeslee v. Boardof Water Commissioners, 106 Conn. 642, 652,139 A. 106. Where, however, the subsequent agreementimposes upon the one seeking greater compensationan additional obligation or burden not previouslyassumed, the agreement, supported byconsideration, is valid and binding upon theparties. See, e.g., Simone v. Kirschner,100 Conn. 427, 124 A. 20.

[176 Conn. 167]

In Blakeslee v. Board of Water Commissioners,supra, 656, this court, in analyzing thesetraditional principles, articulated the evolvingrule that "`where a contract must be performedunder burdensome conditions not anticipated, andnot within the contemplation of the parties at thetime when the contract was made, and the promiseemeasures up to the right standard of honesty andfair dealing, and agrees, in view of the changedconditions, to pay what is then reasonable, just,and fair, such new contract is not withoutconsideration within the meaning of that term,either in law or in equity.' United Steel Co. v.Casey, 262 F. 889, 893; see also Linz v. Shuck,106 Md. 220, 67 A. 286." See also Sasso v. K.G.& G. Realty & Construction Co., 98 Conn. 571,120A. 158; Connelly v. Devoe, 37 Conn. 570, 576.

This principle has received recognition bycourts> of other jurisdictions confronted withsituations comparable to that now before thiscourt. In Evergreen Amusement Corporation v.Milstead, 206 Md. 610, 112 A.2d 901, the MarylandCourt of Appeals found a subsequent oral agreementof the parties to a written construction contractvalid, relying, in part, upon the theory ofunforeseen circumstances. In that case, theplaintiff, operator of a drive-in movie theater,had entered into a written contract with thedefendant, a contractor, pursuant to which thelatter agreed to supply all the necessary materialsand to perform the work needed to clear thetheater site of timber, stumps, and wastematerial, and to grade the site as indicated onthe accompanying plans. Once the work wasunderway, it became apparent that substantial,additional fill would be needed to complete theproject, although neither party had anticipatedthis, both relying upon a topographical

[176 Conn. 168]

     map which proved to be of doubtful accuracy.The court found that the parties, upon thisdiscovery, entered into an oral agreement wherebythe defendant would bring in the fill foradditional compensation. On appeal, the plaintiffclaimed that this agreement lacked considerationsince the defendant promised only to do that whichhe had already agreed to do, i.e., to furnish allmaterials needed to grade the theater site. Relyingupon the theory of unforseen circumstances, thecourt held the agreement to be binding.

In another case involving facts similar to thosenow before us, a California Court of Appeal inBailey v. Breetwor, 206 Cal.App.2d 287,23 Cal.Rptr. 740, without reference to the theory ofunforeseen circumstances, determined that asubsequent oral agreement of parties to a writtencontract was valid where unanticipated, burdensomeconditions, not contemplated by the parties at thetime the written contract was executed, wereencountered. In that case, the defendant ownerhad entered into a written contract with aconstruction company to grade and compact abuilding site for $2600. The work wassubcontracted to the plaintiff, who agreed toperform the work in accordance with the generalcontract. Upon commencing his work, the plaintiffdiscovered, below the surface, an extensive amountof wet clay. The owner was notified of this andwas advised that, although removal of this claywas not included in the subcontract, its removalwas necessary for compliance with the citybuilding code. In return for costs plus 10percent, the plaintiff orally agreed to remove theclay. Determining that the oral agreementconstituted a separate, binding contract, thecourt noted that "[t]his performance was clearlybeyond the scope of the original contract.

[176 Conn. 169]

     Bailey [the plaintiff] thus incurred a newdetriment and Breetwor [the owner] received a newbenefit constituting sufficient consideration forBreetwor's promise." Id., 292.

Although the technical terminology apparent inthese two cases differs, the underlying reasoningis similar. In each case, an unforeseen,burdensome condition was discovered during theperformance of the original contract. The promiseof additional compensation in return for thepromise that the additional work required would beundertaken was held to constitute a separate,valid agreement. Such reasoning is applicable tothe facts of this case. The unchallenged findingsof the court reveal that the substantial rubblefound beneath the surface of the site was notanticipated by either party, that its presencenecessitated excavation beyond the depths requiredin the plans and specifications, that the cost ofremoving this rubble was not included in thecontract price and that the parties entered into aseparate oral agreement for the removal of therubble. Under these circumstances, the subsequentoral agreement, that the defendant would removethis rubble in return for additional compensation,was binding as a new, distinct contract, supportedby valid consideration. See Restatement (Second)Contracts 89D (Tentative Draft No. 2, 1965). Thedefendant's failure to comply with this agreementconstitutes a breach of contract.

Because of our disposition of this issue, weneed not address the question of whether thesubcontract incorporated the provision of thecontract requiring written authorization by thearchitect or owner for extra work. Such aprovision does not preclude a subsequentagreement pursuant to which an obligation,

[176 Conn. 170]

     not contemplated at the time the originalcontract was executed, is assumed. Wyandotte &D.R. Ry. v. King Bridge Co., 100 F. 197, 205 (6thCir.); see also Farm-Rite Implement Co. v.Fenestra, Inc., 340 Mass. 276, 287,163 N.E.2d 285. The court found that the plaintiff and thedefendant entered into an agreement pertaining tothe costs for removal of the rubble. Such anagreement is valid. See, e.g., Wagner v. GrazianoConstruction Co., 390 Pa. 445, 447, 136 A.2d 82.

There is error, the judgment for the defendanton the complaint is set aside and the case isremanded with direction to render judgment for theplaintiff to recover such damages as he may proveon a new trial limited to the issue of damages.

In this opinion the other judges concurred.

1. The plaintiff sought to notify the owner,but because the owner was ill, the plaintiff wasunable to reach him.

The plaintiff, a contractor, brought thisaction for damages against the defendant, asubcontractor, alleging that the defendant hadbreached a contract under which he had promised

[176 Conn. 163]

     to perform certain excavation work for theplaintiff. The defendant counterclaimed. Thecourt rendered judgment for the defendant on theplaintiff's claim and for the plaintiff on thedefendant's counter-claim. From the judgment forthe defendant, the plaintiff has appealed.

The relevant facts as found by the court are asfollows: In early 1968, Joseph E. Bennett, doingbusiness as Joseph E. Bennett Company, enteredinto a contract with Seymour B. Levine (herein-afterthe owner) for the construction of a postoffice building in Bristol. Shortly thereafter,Bennett assigned the contract to the plaintiff,who, on October 10, 1968, entered into a writtensubcontract with the defendant. Pursuant to thatcontract, consisting of a standard subcontractagreement plus specifications, the defendantagreed to perform "all Excavation, Grading, SiteWork, Asphalt Pavement, Landscaping, and ConcreteWork" and "everything requisite and necessary tofinish the entire work properly." In return, thedefendant was to receive $104,326.

The defendant commenced excavation of thepremises on October 15, 1968, at which time hediscovered considerable debris below the surface,consisting in part of concrete foundation walls,slab floors, underground tanks, twisted metals andvarious combustible materials. Apparently, thediscovered walls and floor had been part of thebasement of an old factory which had previouslybeen located on the site. The plaintiff hadpreviously taken test borings of the excavationsite, the results of which had been given to thedefendant prior to the execution of thesubcontract. The defendant had relied uponthose results, although they proved

[176 Conn. 164]

     to be grossly inaccurate. Neither party had beenaware of the rubble and, consequently, its removalwas not specifically called for by the plans andspecifications included in the subcontract, norwas the cost of its removal included in thecontract price. Nonetheless, the existence of therubble necessitated excavation beyond the depthanticipated in the plans and specifications andthe post office building could not be constructedwithout its removal.

A provision of the general contract between theowner and Bennett provided that "no extra work orchange shall be made unless in pursuance of awritten order from the owner signed or counter-signedby the Architect, or a written order fromthe Architect stating that the owner hasauthorized the extra work or change." A separateprovision of the contract specified that eachsubcontractor was to make all claims for extras"to the Contractor in the manner provided in theGeneral Conditions of the Contract . . . for likeclaims by the Contractor upon the owner." Aprovision of the sub-contract reiterated thisrequirement, adding that "no extra work or otherchange will be commenced by the Sub-Contractorwithout the Contractor's prior approval inwriting." Similarly, both contracts includedprovisions under which the subcontractor agreedto be bound to the contractor by the terms ofthe general contract and to assume toward thecontractor all those obligations which he, underthe contract, assumed towards the owner.

Upon discovery of the unanticipated debris, theplaintiff notified the architect, the attorney forthe owner, representatives of the Bristol redevelopmentagency, which owned the building site, and representativesof the postal service of the existence

[176 Conn. 165]

     of the rubble.1 All agreed that removal ofthe rubble was requisite for completion of thebuilding, yet none would issue writtenauthorization for its removal.

On October 21, 1968, the defendant ceasedworking on the excavation site and notifiedthe plaintiff of his refusal to continue.Subsequently, the defendant offered to completethe subcontract if the plaintiff would have theunsuitable material removed. The plaintiff refusedthis offer. He then ordered the defendant toremove the rubble as part of "everything requisiteand necessary" under the sub-contract. Thedefendant refused. When the plaintiff wasconfronted with this situation, and no one wouldtake the responsibility to authorize the removalof the rubble, although its removal was necessaryfor the contractor to complete his contract, hechose to enter into a further agreement withthe defendant for work not included in thesubcontract. The plaintiff and the defendantorally agreed that the defendant would be paid hiscosts for removing the unanticipated rubble, plus10 percent. By letter dated November 7, 1968, theplaintiff confirmed this oral agreement. Althoughrequested in the letter to do so, the defendantfailed to sign and return a copy of the letter tothe plaintiff. Nonetheless, the defendant returnedto work, continuing until about November 13, 1968,at which point he left the job, refusing to returndespite the plaintiff's request that he completethe work. The plaintiff completed his own contractwith the owner, suffering, as a result of thedefendant's abandonment, considerable damages.

[176 Conn. 166]

On appeal to this court, most of the plaintiff'sclaims of error focus upon the court's conclusionthat, by interpreting the terms of the generalcontract as being incorporated into thesubcontract, the issuance of a written extra workorder signed by the architect was a conditionprecedent to the defendant's obligation to removethe rubble. The plaintiff's final claim, however,raises the issue of whether the oral agreementbetween it and the defendant constituted a validagreement obligating the defendant to remove theunexpected rubble. Because we find this issue tobe dispositive of the appeal, the other claimsneed not be specifically addressed.

It is an accepted principle of law in this statethat when a party agrees to perform an obligationfor another to whom that obligation is alreadyowed, although for lesser remuneration, the secondagreement does not constitute a valid, bindingcontract. See, e.g., Dahl v. Edwin Moss & Son,Inc., 136 Conn. 147, 69 A.2d 562; Gruber v. Klein,102 Conn. 34, 127 A. 907; Warren v. Skinner,20 Conn. 559. "The basis of the rule is generallymade to rest upon the proposition that in such asituation he who promises the additionalcompensation receives nothing more than that towhich he is already entitled and he to whom thepromise is made gives nothing that he was notalready under legal obligation to give. 1Williston on Contracts, 130." Blakeslee v. Boardof Water Commissioners, 106 Conn. 642, 652,139 A. 106. Where, however, the subsequent agreementimposes upon the one seeking greater compensationan additional obligation or burden not previouslyassumed, the agreement, supported byconsideration, is valid and binding upon theparties. See, e.g., Simone v. Kirschner,100 Conn. 427, 124 A. 20.

[176 Conn. 167]

In Blakeslee v. Board of Water Commissioners,supra, 656, this court, in analyzing thesetraditional principles, articulated the evolvingrule that "`where a contract must be performedunder burdensome conditions not anticipated, andnot within the contemplation of the parties at thetime when the contract was made, and the promiseemeasures up to the right standard of honesty andfair dealing, and agrees, in view of the changedconditions, to pay what is then reasonable, just,and fair, such new contract is not withoutconsideration within the meaning of that term,either in law or in equity.' United Steel Co. v.Casey, 262 F. 889, 893; see also Linz v. Shuck,106 Md. 220, 67 A. 286." See also Sasso v. K.G.& G. Realty & Construction Co., 98 Conn. 571,120A. 158; Connelly v. Devoe, 37 Conn. 570, 576.

This principle has received recognition bycourts> of other jurisdictions confronted withsituations comparable to that now before thiscourt. In Evergreen Amusement Corporation v.Milstead, 206 Md. 610, 112 A.2d 901, the MarylandCourt of Appeals found a subsequent oral agreementof the parties to a written construction contractvalid, relying, in part, upon the theory ofunforeseen circumstances. In that case, theplaintiff, operator of a drive-in movie theater,had entered into a written contract with thedefendant, a contractor, pursuant to which thelatter agreed to supply all the necessary materialsand to perform the work needed to clear thetheater site of timber, stumps, and wastematerial, and to grade the site as indicated onthe accompanying plans. Once the work wasunderway, it became apparent that substantial,additional fill would be needed to complete theproject, although neither party had anticipatedthis, both relying upon a topographical

[176 Conn. 168]

     map which proved to be of doubtful accuracy.The court found that the parties, upon thisdiscovery, entered into an oral agreement wherebythe defendant would bring in the fill foradditional compensation. On appeal, the plaintiffclaimed that this agreement lacked considerationsince the defendant promised only to do that whichhe had already agreed to do, i.e., to furnish allmaterials needed to grade the theater site. Relyingupon the theory of unforseen circumstances, thecourt held the agreement to be binding.

In another case involving facts similar to thosenow before us, a California Court of Appeal inBailey v. Breetwor, 206 Cal.App.2d 287,23 Cal.Rptr. 740, without reference to the theory ofunforeseen circumstances, determined that asubsequent oral agreement of parties to a writtencontract was valid where unanticipated, burdensomeconditions, not contemplated by the parties at thetime the written contract was executed, wereencountered. In that case, the defendant ownerhad entered into a written contract with aconstruction company to grade and compact abuilding site for $2600. The work wassubcontracted to the plaintiff, who agreed toperform the work in accordance with the generalcontract. Upon commencing his work, the plaintiffdiscovered, below the surface, an extensive amountof wet clay. The owner was notified of this andwas advised that, although removal of this claywas not included in the subcontract, its removalwas necessary for compliance with the citybuilding code. In return for costs plus 10percent, the plaintiff orally agreed to remove theclay. Determining that the oral agreementconstituted a separate, binding contract, thecourt noted that "[t]his performance was clearlybeyond the scope of the original contract.

[176 Conn. 169]

     Bailey [the plaintiff] thus incurred a newdetriment and Breetwor [the owner] received a newbenefit constituting sufficient consideration forBreetwor's promise." Id., 292.

Although the technical terminology apparent inthese two cases differs, the underlying reasoningis similar. In each case, an unforeseen,burdensome condition was discovered during theperformance of the original contract. The promiseof additional compensation in return for thepromise that the additional work required would beundertaken was held to constitute a separate,valid agreement. Such reasoning is applicable tothe facts of this case. The unchallenged findingsof the court reveal that the substantial rubblefound beneath the surface of the site was notanticipated by either party, that its presencenecessitated excavation beyond the depths requiredin the plans and specifications, that the cost ofremoving this rubble was not included in thecontract price and that the parties entered into aseparate oral agreement for the removal of therubble. Under these circumstances, the subsequentoral agreement, that the defendant would removethis rubble in return for additional compensation,was binding as a new, distinct contract, supportedby valid consideration. See Restatement (Second)Contracts 89D (Tentative Draft No. 2, 1965). Thedefendant's failure to comply with this agreementconstitutes a breach of contract.

Because of our disposition of this issue, weneed not address the question of whether thesubcontract incorporated the provision of thecontract requiring written authorization by thearchitect or owner for extra work. Such aprovision does not preclude a subsequentagreement pursuant to which an obligation,

[176 Conn. 170]

     not contemplated at the time the originalcontract was executed, is assumed. Wyandotte &D.R. Ry. v. King Bridge Co., 100 F. 197, 205 (6thCir.); see also Farm-Rite Implement Co. v.Fenestra, Inc., 340 Mass. 276, 287,163 N.E.2d 285. The court found that the plaintiff and thedefendant entered into an agreement pertaining tothe costs for removal of the rubble. Such anagreement is valid. See, e.g., Wagner v. GrazianoConstruction Co., 390 Pa. 445, 447, 136 A.2d 82.

There is error, the judgment for the defendanton the complaint is set aside and the case isremanded with direction to render judgment for theplaintiff to recover such damages as he may proveon a new trial limited to the issue of damages.

In this opinion the other judges concurred.

1. The plaintiff sought to notify the owner,but because the owner was ill, the plaintiff wasunable to reach him.

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