CACI 4540 Contractor’s Damages for Breach of Construction Contract—Change Orders/Extra Work

California Civil Jury Instructions CACI

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.

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.)

“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 (11th ed. 2017) Contracts, § 939
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)
Miller & Starr, California Real Estate 4th, §§ 27:61, 27:69 (Thomson Reuters)
Acret, California Construction Law Manual (6th ed.) § 7:71 (Thomson Reuters)
Bruner & O’Connor on Construction Law, § 4:16 (Thomson Reuters)