Brian Constr. & Dev. Co. v. Brighenti
176 Conn. 162, 405 A.2d 72 (Conn. 1978)

  • A developer, Bennett, signed a contract to build a post office in Connecticut.  Bennett turned around and subcontracted with Brian to build the building.  Brian then subcontracted with Brighenti to do excavation, paving and grading work.  Brighenti would be paid $104k.
  • Brian had done some test bores and sent the results to Brighenti prior to finalizing the contract.  They said that the land would be easy to excavate.  However, when Brighenti started, they found a bunch of buried rubble at the site that would have considerably increased the costs to excavate.
  • Brighenti went back to Bennett, Brian and the post office, who all agreed that the rubbled neded to be removed, but refused to authorize more money to pay for it.  Brighenti stopped working.
    • The contract had a clause saying that changes to the contract (change orders) had to be in writing, and had to be approved by the building owners.
  • Brian agreed to a separate (oral) subcontract with Brighenti to remove the rubble.
    • How is this new contract different than a modification to the original contract (which had to be in writing)?  To be honest, it’s mostly a semantic difference.
  • Brighenti eventually balked.  Brian hired a new subcontractor and sued for breach of contract.
  • Trial Court found for Brighenti, saying that the original contract had been invalidated by the new contract.  Brian appealed.
  • Appellate Court reversed.
    • The Appellate Court found that since the new contract involved consideration on both sides, it was a perfectly valid and enforceable contract.
      • “When a party agrees to perform an obligation for another to whom that obligation is already owed, although for lesser renumeration, the second agreement does not constitute a valid, binding contract.  However, where the subsequent agreement imposed upon the one seeking greater compensation an additional obligation or burden not previously assumed, the agreement, supported by consideration, is valid and binding.”
      • This is the same ruling as in Alaska Packers’ Ass’n v. Domenico (117 F. 99 (9th Cir. 1902)), but in that case, there was no additional burden, Domenico just wanted more money for the same job.  Here, the nature of the work had changed.
  • The basic rule here is that if you are going to modify a contract, there needs to be consideration on both sides.  One-sided modifications are just naked promises and are not enforceable.  Contract modifications (even oral ones) that involve more work for more pay are perfectly enforceable.