## Facts

- Evergreen Amusement Corp. planned to open a drive-in theater and hired Harold D. Milstead, an independent contractor, to clear timber and debris, grade the site per plans, and construct specified drainage work.
- The written contract set a price and included a term that, at that price, no additional fill would be substituted for unsuitable material found on the site.
- During performance, the project required substantial additional fill dirt (about 8,000 cubic yards) because the cuts and fills did not balance.
- Milstead asserted that the parties later agreed Evergreen would pay for “borrowed” fill dirt at a per-yard rate; Evergreen denied any binding modification and argued any promise to pay extra lacked consideration.
- The theater opened more than two months later than planned; Evergreen claimed the delay caused lost profits and counterclaimed for those damages.
- At trial, evidence supporting Milstead’s claim included an invoice approved by Evergreen’s president and the president’s daily log documenting the work; the court excluded Evergreen’s expert testimony offered to quantify pre-opening lost profits.
- The jury awarded Milstead the balance due (including the extra fill) and rejected Evergreen’s counterclaim.

## Issues

1. Whether sufficient evidence supported a finding that the parties agreed to extra compensation for additional fill dirt.
2. Whether an agreement to pay extra for fill dirt was enforceable despite the original written contract terms and Evergreen’s claim of no consideration.
3. Whether a yet-to-open business may recover lost profits for delay in opening, and whether excluding expert testimony on such profits was error.
4. Whether exclusion of evidence of a contemporaneous oral 30-day completion term warranted reversal.

## Decision

- The Court of Appeals of Maryland affirmed the judgment for Milstead.
- The court upheld the finding that Evergreen agreed to pay extra for the additional fill dirt, relying on the approved bill and the president’s log as support.
- The court held the extra-compensation agreement was binding, including because the large fill requirement was an unexpected condition and because the parties’ conduct evidenced a modification or agreed construction of the contract.
- The court affirmed rejection of Evergreen’s lost-profits counterclaim, holding projected profits for a business not yet in operation were too uncertain to prove with reasonable certainty.
- The court found no reversible error in excluding the expert lost-profits testimony.
- Any error in excluding evidence of an oral 30-day completion term was non-prejudicial because, absent a time term, the law implies a reasonable time, and the case was effectively treated as involving a 30-day reasonable period.

## Legal Principles

- A written contract may be modified after formation; parties’ conduct (including approval of bills and acceptance of performance) may evidence a binding modification or an agreed interpretation of contract terms.
- An agreement for additional compensation may be enforceable when unforeseen conditions materially change performance assumptions, supporting the validity of the modification.
- Lost-profit damages are recoverable only if proven with reasonable certainty; profits claimed for a business that has not yet begun operations are generally too speculative.
- If a contract does not specify time for performance, the law implies performance within a reasonable time; exclusion of parol evidence is not reversible absent prejudice.

## Conclusion

The court enforced a post-contract agreement requiring Evergreen to pay for unexpectedly necessary fill dirt and denied Evergreen’s counterclaim for pre-opening lost profits because the theater had no operating history to support profits with reasonable certainty, affirming the verdict for the contractor.


Evergreen Amusement Corp. v. Milstead, 206 Md. 610, 112 A.2d 901 (Md. 1955)