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Civil Model Jury Charge 4.30B BUILDING CONTRACTS EXTRAS

Civil Model Jury Charge4.30BBUILDING CONTRACTS EXTRAS

A.Where the Contract is Silent as to the Changes or Extras

Where extras are claimed by the builder the first issue to be resolved is whether the items claimed as extras were included within the terms of the basic contract between the owner and the builder.If they were, the builder is not entitled to additional compensation.If they were not included within the basic contract the builder is entitled to additional compensation only if the extras were requested or authorized by the owner.

If the extras were requested or authorized by the owner, and if there was an agreement between the parties as to the price to be paid for such extras, the builder is entitled to receive the agreed price.

If the extras were requested or authorized by the owner, and there was no agreement as to price, the builder is entitled to be paid the reasonable value of the extras.

Cases and Commentary:

Whether a builder is entitled to compensation for extras is determined by basic contract principles.The issue is whether there was an agreement express or implied that the builder be paid.If what the builder did was comprehended within the construction contract, there are no extras.SeeTerminal Construction Corp. v. Bergen County, etc., District Authority, 18 N.J. 294 (1955).Moses v. Edward H. Ellis, Inc., 4N.J.315 (1950) is an illustration of the rule.The controversy there was between contractor and sub-contractor.The issue was whether the sub-contractor was entitled to payment for pouring concrete into uneven rock in order to bring it to pay lines [lines set out in drawings].He/She was held entitled to payment, but as specified in the contract, although this was in a sense extra work.If the work was performed without the owners request or authorization, and the owner has not agreed to pay, he/she is not liable.17AC.J.S.,Contracts, Sec. 371 (1), p. 401.If the owner has requested or authorized the work, he/she is liable.3Corbin on Contracts, Sec. 564, p. 296 (1965).

If there has been an agreement as to price, that agreement would control.Sbaraglio v. Vicarisi, 110N.J.L. 280 (E. & A. 1933).In the absence of agreementquantummeruitwould be the only means for determining the amount of compensation.Kolmetsky v. Pellicoff, 6N.J.Misc.315, 141Atl.10 (Sup. Ct. 1928),affd, 105N.J.L. 240 (E. & A. 1928);see alsoShapiro v. Solomon, 42N.J.Super. 377 (App. Div. 1956).

B.Where the Contract Prohibits Changes without Written Authority

Since this contract contains a provision that the owner shall not be liable for extra work unless he/she has authorized it in writing, the builder cannot recover for services rendered or materials supplied in addition to those specified in the contract unless the builder proves that there has been a new and subsequent contract that he/she be paid for such additional work or materials (extras).This subsequent contract may be an oral agreement or may be implied from the conduct of the parties.It must show an agreement by the parties that the extra work was to be done and an agreement by the owner to pay for it.

Cases and Commentary:

Both cases and texts have spoken in terms of waiver of the provision requiring extras to be authorized in writing.13Am. Jur.2d, Building Contracts, Sec. 22 p. 24.However, the issue involved is whether there was a subsequent contract for adequate consideration covering the work.3ACorbin on Contracts, Sec. 756, p. 505 (1963).The governing rule is that, parties to an existing contract may, by mutual consent, modify it.Bohlinger v. Ward & Co., 34N.J.Super. 583, 587 (App. Div. 1955),affd20N.J. 331 (1956).The parties cannot be prevented from entering into a new contract, written or oral, by a provision that a subsequent agreement not in writing shall not be binding.Headley v. Cavileer, 82N.J.L. 635 (E. & A. 1912);Guizzette v. Katrek, 124N.J.L. 461 (Sup. Ct. 1940);Lord Construction Co. v. United States, 28F.2d 340 (CA 3, 1928);In Re Fleetwood Motel Corp, 335F.2d 863 (CA 3, 1964);Sheyer v. Pinkerton Construction Co., 59Atl. 462 (N.J. E. & A. 1904);Denoth v. Carter, 85N.J.L.95 (Sup. Ct. 1913);Rizzolo v. Poysher, 89N.J.L. 618 (E. & A. 1916),Fortunato v. Cicalese, 93N.J.L. 461 (E. & A. 1919).

InHomeowners Construction Company v. Borough of Glen Rock,34N.J.305, 316-17 (1961), the Court required clear and convincing proof when a party alleges oral modification of a written agreement that expressly prohibits such oral modification.

   
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

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Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

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I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

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p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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