The Change Order Nobody Signed
A general contractor is building a detached garage under a written contract with a fixed price of $84,000 and a clause stating that all changes must be authorized in a written change order signed by both parties before work proceeds. During construction the homeowner verbally asks the superintendent to add a half-bath, saying "just take care of it and bill me." The superintendent directs the crew, and the rough-in and finishes add $9,300 in labor and materials. The homeowner later refuses to pay, arguing the written change order clause was never satisfied. The contractor has text messages confirming the request but no signed change order. The work is complete and functional.
1. What is the strongest argument for each side, and who is likely to prevail?
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Contractor: The homeowner requested the work, accepted its benefit, and the contractor relied on that request in good faith. The text messages corroborate the oral directive. A court may find the homeowner waived the written-change-order requirement or is unjustly enriched by retaining a completed, functional bathroom without paying.
Homeowner: The contract is explicit that changes require a signed writing before work begins, and the contractor bore the risk of proceeding without one.
Likely outcome: written change-order clauses are generally enforceable, but they can be waived by conduct - especially where the owner directly requested the extra work and accepted its benefit. The contractor has a reasonable claim, but its position would be far stronger with a signed order. The outcome is uncertain enough that the contractor should not assume full recovery.
2. What should the contractor have done at the moment of the verbal request, and what should it do now?
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At the request: Pause and issue a written change order stating scope, price ($9,300), and schedule impact, and obtain the owner's signature before mobilizing. If the owner resists signing, document the refusal in writing and do not proceed without authorization.
Now: Assemble the text messages, daily logs, material receipts, and photos into a written demand. Offer a documented invoice for the $9,300. If unpaid, pursue the contractual dispute process - mediation or the remedies the contract provides - rather than unilateral withholding. Going forward, the superintendent should have no authority to accept verbal changes; that authority should be limited to the project manager, with a standing rule that no extra work starts without a signed order.