Not all construction contracts are written in the proverbial stone. Oftentimes after construction begins, an owner may decide to upgrade materials or add further work onto the already agreed-upon project. When this happens, changes can occur through a written change-order or request for extra work, by oral requests, or through the course of dealing of the parties.

Most contracts call for any changes or modifications to be placed in writing. That writing then becomes a part of the parties' contract. However, it is not uncommon for new instructions or changes in the contemplated work to be made orally right at the job site. When a contractor performs extra work pursuant to an oral request for change by the owner, he runs a high risk should the owner refuse to accept the work and deny payment. In such a situation, the contractor carries the burden to prove that the owner ordered the extra work. If the owner accepts the work, he cannot use the fact that the change was pursuant to an oral request to avoid compensating the contractor for the extra work.

With respect to an oral request for a change in the work previously prescribed, as opposed to adding extra work, a contractor will only be successful in a claim for additional compensation if he proves certain facts. First, the contractor must prove that the owner verbally requested the change. This can sometimes present quite a problem because with no written evidence it may come down to the word of the contractor against that of the owner. Second, the contractor must prove that not only did the owner request the change but that he also agreed to pay for such work. Third, it must be shown that the change in work was not necessitated by the actions of the contractor in performing his work in a negligent manner. Finally, the contractor must show that he completed the work as requested.

Parties may impliedly modify their construction contract through action or inaction, as the case may be. To counter an owner's defense that no additional compensation is owing to the contractor because the parties' contract provided that all changes or extras were to be placed in writing, a contractor must prove several points. These include 1) that the owner frequented the job site, 2) was aware of and acquiesced to the changes or extra work, 3) knew that the work performed was different from that contemplated in the parties' contract, and 4) accepted the work.

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