## Facts

- A general contractor entered a written subcontract with a subcontractor for site work, excavation, grading, paving, landscaping, and concrete work for a fixed price.
- After excavation began, the subcontractor encountered substantial subsurface debris (including concrete structures, tanks, and metal) not shown in the plans and not contemplated in the subcontract price.
- The contractor had provided test borings that the subcontractor relied on, but the borings proved materially inaccurate; neither party knew of the buried rubble at contracting.
- Removing the rubble required additional excavation beyond what was anticipated and was necessary for construction to proceed.
- The prime contract and subcontract required written authorization for extra work from the owner, but a change order could not be obtained.
- The subcontractor stopped work rather than remove the rubble under the original price.
- The trial court found the parties then made an oral agreement under which the contractor would pay the subcontractor actual costs for rubble removal plus 10% for overhead and profit.
- The contractor sent a signed letter confirming the oral terms; the subcontractor did not sign but returned to work and performed some removal.
- The subcontractor later left the job unfinished; the contractor completed the project and claimed damages.

## Issues

1. Whether the oral cost-plus agreement was enforceable as a contract modification supported by consideration, or unenforceable under the preexisting duty rule as a promise to pay more for the same performance.
2. Whether unforeseen site conditions that impose additional burdens can supply consideration (or otherwise justify enforcement) for a modification increasing compensation.

## Decision

- The Connecticut Supreme Court held the oral agreement was valid and enforceable.
- The court concluded the modification was supported by consideration because it required performance of additional work and burdens not contemplated in the original subcontract.
- The court reversed the judgment for the subcontractor on the contractor’s claim.
- The case was remanded with direction to enter judgment for the contractor and to conduct a new trial limited to damages.

## Legal Principles

- A promise to pay additional compensation for performance of an existing contractual duty is generally unenforceable for lack of consideration.
- A modification is enforceable when the later agreement imposes an additional obligation or burden not previously assumed, supplying new consideration.
- A modification responding to unanticipated or unforeseen difficulties may be enforced when fair and equitable under the circumstances.
- Assent to a modification may be shown by conduct, including partial performance consistent with the modified terms, even if a confirming writing is unsigned by the other party.

## Conclusion

The court enforced a cost-plus modification because undisclosed subsurface debris created unforeseen conditions requiring extra work beyond what the parties reasonably contemplated in the fixed-price subcontract, making the modification supported by consideration and subject to a new trial on the contractor’s damages.


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