CACI No. 4540. Contractor’s Damages for Breach of Construction Contract - Change Orders/ Extra Work

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
4540.Contractor’s Damages for Breach of Construction
Contract - Change Orders/Extra Work
[Name of plaintiff] contends that [name of defendant] increased or changed
the scope of the [project/describe construction project, e.g., apartment
building] beyond what was required by the parties’ contract. If you find
that [name of plaintiff] is entitled to compensation for this extra work,
you may award damages to [name of plaintiff] based on [the agreed price
provided in the parties’ contract for/the reasonable value of] the extra
work.
New December 2010
Directions for Use
This instruction should be used in an action by the contractor against the owner for
extra work that the owner required and that was not provided for in the contract. In
the last sentence, give the first alternative if there was evidence that the parties
agreed, in writing or otherwise, on compensation for the extra work. Otherwise give
the second option for the reasonable value of the work.
Under very limited circumstances, the contractor may obtain a “total-cost” recovery
for extra work, meaning that instead of proving the costs associated with all of the
changes, the contractor computes the total cost of the project and subtracts the
contract price. For an instruction on total-cost recovery, see CACI No. 4541,
Contractor’s Damages for Breach of Construction Contract - Change Orders/Extra
Work - Total Cost Recovery.
Under other circumstances, the contractor may attempt to establish that the contract
was mutually abandoned and that the recovery should be in quantum meruit. For an
instruction on damages on abandonment, see CACI No. 4542, Contractor’s
Damages for Abandoned Construction Contract - Quantum Meruit Recovery.
For additional instructions on contract damages generally, see CACI No. 350 et seq.
in the Contracts series.
Sources and Authority
• “Extra work as used in connection with a building contract means work arising
outside of and entirely independent of the contract - something not required in
its performance, not contemplated by the parties, and not controlled by the
contract. Extra work may be performed by the contractor for the owner or by the
subcontractor for the general contractor, Where the extras are of a different
character from the work called for in the contract and no price is agreed on for
extra work, their reasonable value may be recovered.” (C. F. Bolster Co. v. J. C.
Boespflug Constr. Co. (1959) 167 Cal.App.2d 143, 151 [334 P.2d 247], internal
citations omitted.)
1249
Copyright Judicial Council of California
• “Whether a contractor is entitled to additional compensation for extra work
depends generally on the construction of the particular contract and whether it is
included in the contract price. The construction placed on the contract by the
parties is of great weight, and where they agree on additional compensation for
certain work it precludes a claim that the original contract requires the
performance of such work.” (Frank T. Hickey, Inc. v. Los Angeles Jewish
Community Council (1954) 128 Cal.App.2d 676, 683 [276 P.2d 52].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 910
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 5,
Private Contracts: Disputes and Remedies, §§ 5.49-5.50
1 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 6,
Public Contracts: Disputes and Remedies, §§ 6.70-6.73
2 California Construction Contracts, Defects, and Litigation (Cont.Ed.Bar) Ch. 9,
Handling Disputes During Construction, §§ 9.70-9.73
1 Stein, Construction Law, Ch. 4, Modification and Termination of Construction
Contracts, ¶ 4.03 (Matthew Bender)
12 California Real Estate Law and Practice, Ch. 440, Construction Contract
Remedies, § 440.14 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts, § 104.15
(Matthew Bender)
5 California Points and Authorities, Ch. 50, Contracts, § 50.40 (Matthew Bender)
10 Miller & Starr, California Real Estate (Thomson Reuters West 3d ed.) Ch. 27,
Construction Law and Contracting, §§ 27:61, 27:69
Acret, California Construction Law Manual (Thomson Reuters West 6th ed. 2005)
Ch. 7, Public Contracts, § 7:71
1 Bruner & O’Connor on Construction Law (Thomson Reuters West 2002) Ch. 4,
Contract “Changes” and “Extras,” § 4:16
CACI No. 4540 CONSTRUCTION LAW
1250
Copyright Judicial Council of California

© Judicial Council of California.