Watson Lumber Co. v. Guennewig
79 Ill. App. 2d 377, 1967 Ill. App. LEXIS 803, 226 N.E.2d 270 (1967)
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Rule of Law:
A contractor seeking compensation for extra work not stipulated in writing, contrary to a contract term, must prove by clear and convincing evidence that the owner ordered the work as an extra, agreed to pay additional compensation for it, and thereby waived the written stipulation requirement before the work was performed.
Facts:
- William and Mary Guennewig provided house plans to Watson Lumber Company for the construction of a home on their lot.
- On December 3, 1962, the Guennewigs and Watson Lumber Company signed a written contract prepared by Watson for the construction at a price of $28,206.
- The contract included a provision stating that any 'changes in work or material from that specified shall be stipulated in writing and attached to and made a part of the contract.'
- Construction began in December 1962, and the Guennewigs made partial payments totaling $11,407.20.
- During the construction process, Watson Lumber performed numerous items of labor and provided materials that were not in the original plans and specifications.
- By August 1963, Watson Lumber claimed the house was complete and demanded the remaining contract balance plus payment for 48 alleged 'extra' items.
- The Guennewigs withheld final payment, contending they were dissatisfied with the performance, that the work was faulty, and that the house was not completed according to the contract.
- Many of the items claimed as 'extras' were not discussed or claimed as such until after Watson Lumber had already requested the final contract payment.
Procedural Posture:
- Watson Lumber Company (plaintiff) sued William and Mary Guennewig (defendants) in a state trial court to recover the balance on a building contract and compensation for extras.
- The case was tried by a judge without a jury (a bench trial).
- The trial court entered a judgment in favor of Watson Lumber Company for $22,500.
- The Guennewigs (appellants) appealed the trial court's judgment to the intermediate appellate court, where Watson Lumber Company was the appellee.
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Issue:
Is a building contractor entitled to recover compensation for extra work when the contract requires written authorization for such changes, and the contractor fails to prove by clear and convincing evidence that the owner ordered the extras, agreed to pay for them, and waived the writing requirement?
Opinions:
Majority - Eberspacher, J.
No. A contractor is not entitled to recover for extras contrary to a contract's written-order requirement without meeting a high burden of proof. To recover for 'extras,' a contractor must establish by clear and convincing evidence that: (a) the work was outside the scope of the original contract; (b) the owner ordered the items; (c) the owner agreed to pay extra, either by words or conduct; (d) the items were not furnished voluntarily by the contractor; and (e) the extras were not made necessary by the contractor's own fault. The contractor must make their position clear that a requested item is an extra at the time the owner has to decide whether to incur the liability, not after the work is performed. Mere acceptance of the work by the owner does not create liability for an extra, nor does it waive a contractual requirement for written authorization. Furthermore, if a contractor has only substantially, not fully, performed, they cannot recover the full contract price; recovery must be offset by the cost to remedy the deficiencies, and the burden is on the contractor to prove this amount.
Analysis:
This decision reinforces the legal weight of 'no-oral-modification' clauses in construction contracts, placing a heavy burden of proof on contractors who deviate from them. It establishes that a waiver of such a clause is not easily inferred from the owner's conduct and must be proven with clear and convincing evidence, protecting owners from unexpected and unapproved charges. The case also clarifies the doctrine of substantial performance, confirming that a contractor who has not fully performed is not entitled to the full contract price and must prove the cost of remediation for defects, which is then deducted from their recovery. This holding serves as a strong precedent for holding contractors to the precise terms of their agreements and for requiring transparent communication about extra costs before they are incurred.
