Brian Construction & Development Co. v. Brighenti
176 Conn. 162 (1978)
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Rule of Law:
A subsequent agreement to modify a contract is enforceable, even without new consideration, if the modification is fair and equitable in view of circumstances that were not anticipated by the parties when the contract was made.
Facts:
- Joseph E. Bennett Company contracted with an owner to construct a post office, and then assigned the contract to the Plaintiff.
- On October 10, 1968, Plaintiff, a general contractor, entered into a written subcontract with the Defendant for excavation and site work for a fixed price of $104,326.
- Plaintiff provided Defendant with test boring results for the site, which proved to be grossly inaccurate.
- On October 15, 1968, Defendant began excavation and discovered a substantial amount of unanticipated debris, including old foundation walls, concrete slabs, and underground tanks, which was not foreseen by either party.
- The removal of this rubble was necessary to construct the building, but was not specifically covered in the subcontract, and its cost was not included in the contract price.
- On October 21, 1968, Defendant stopped work, refusing to remove the rubble under the original contract terms.
- Plaintiff and Defendant then entered into a new oral agreement where Plaintiff promised to pay Defendant his costs plus 10 percent to remove the unexpected rubble.
- Defendant returned to work under the new oral agreement but left the job on November 18, 1968, refusing to complete the work.
Procedural Posture:
- The Plaintiff contractor sued the Defendant subcontractor in a trial court for breach of contract.
- The Defendant filed a counterclaim against the Plaintiff.
- The trial court rendered judgment for the Defendant on the Plaintiff's claim and for the Plaintiff on the Defendant's counterclaim.
- The Plaintiff, as appellant, appealed the judgment in favor of the Defendant to the state's highest court.
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Issue:
Does a subsequent oral agreement to pay additional compensation for work already required by a written contract constitute a valid, enforceable contract when unanticipated, burdensome conditions arise that were not contemplated by the parties at the time of the original contract?
Opinions:
Majority - Loiselle, J.
Yes, a subsequent oral agreement to pay additional compensation is a valid and enforceable contract under these circumstances. The pre-existing duty rule, which typically invalidates such promises for lack of consideration, does not apply when a contract must be performed under burdensome conditions not anticipated by the parties at the time the contract was made. In such cases, a promise to pay what is fair and reasonable to complete the work constitutes a new, valid contract supported by consideration. The discovery of the substantial, hidden rubble was an unforeseen, burdensome condition not contemplated by the parties. The oral agreement to pay extra for its removal was a separate, binding contract, and the Defendant's failure to comply constituted a breach.
Analysis:
This decision marks a significant adoption of the modern exception to the common law's rigid pre-existing duty rule, aligning with the principles found in the Restatement (Second) of Contracts § 89. By allowing contract modifications without new consideration in the face of unforeseen circumstances, the court promotes fairness and practical business solutions over strict legal formalism. This precedent gives parties more flexibility to adapt to unexpected challenges that arise during performance, provided the modification is made in good faith and is equitable. It signals a judicial shift towards enforcing promises that parties make to resolve genuine, unanticipated difficulties.
